            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                     February 18, 2020
                Plaintiff-Appellee,

 v                                                                   No. 346063
                                                                     Wayne Circuit Court
 MARTIN GARCIA MARTINEZ, JR.,                                        LC No. 17-010813-02-FC

                Defendant-Appellant.


Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

        Defendant, Martin Garcia Martinez, appeals his jury trial convictions for conspiracy to
commit armed robbery, MCL 750.175a and MCL 750.529, armed robbery, MCL 750.529, and
assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84. Martinez
was sentenced to 225 to 450 months’ imprisonment for his conspiracy to commit armed robbery
and armed robbery convictions and to 60 to 120 months’ imprisonment for his AWIGBH
conviction. We affirm.

                                            I. FACTS

        Martinez’s convictions stem from the armed robbery and shooting of the victim in Detroit,
Michigan, on October 30, 2017. The victim and Martinez met at a bar on October 28, 2017. On
the day of the shooting, Martinez contacted the victim and asked him to “hang out” at a recording
studio. The victim agreed, and Martinez instructed the victim where to meet him. At about 6:00
p.m. on October 30th, the victim went to Chamberlain Street and Woodmere Street in Detroit to
meet Martinez.

        When the victim arrived, Martinez approached the victim’s vehicle. Martinez got into the
vehicle and said his friends wanted to go to the store. He offered to buy the victim something if
the victim drove them to the store. The victim agreed. Martinez then went inside the house and
came out with two men named “Gianni” and “Antonio.” Martinez got into the front passenger
seat, Antonio sat behind Martinez, and Gianni sat behind the victim. After the victim began driving
to the store, Martinez said, “This is how this is going to go.” Martinez, Gianni, and Antonio then



                                               -1-
began grabbing at the victim’s neck for his necklace and punching him in the face. Gianni pulled
out a gun and shot the victim in the back.

        Gianni and Antonio subsequently got out of the vehicle and ran away with the victim’s
backpack, which contained prescription medication and marijuana. The victim also believed that
his wallet and Gucci glasses were inside the backpack. Martinez remained in the vehicle and tried
to take the victim’s cell phone, which was stuck in the vehicle’s console. While attempting to get
the victim’s phone, Martinez dropped his own phone in the victim’s vehicle. The victim grabbed
his phone from Martinez and tried to put the vehicle in drive. Martinez got out of the vehicle and
fled the scene, leaving his phone in the victim’s vehicle.

       The victim called 911 and was taken to the hospital. At the hospital, the victim gave a
written statement to law enforcement regarding the robbery and shooting. The victim also
provided the police with Martinez’s Facebook page. Martinez was charged with conspiracy to
commit armed robbery, armed robbery, and assault with intent to murder (AWIM). The jury
convicted Martinez of the lesser included offense of AWIGBH, conspiracy to commit armed
robbery, and armed robbery. Martinez was sentenced to a term of imprisonment. Thereafter,
Martinez filed a motion for a new trial or for a Ginther1 hearing based on arguments that his trial
counsel was ineffective. The motion was denied, and this appeal followed.

                                          II. ANALYSIS

                                     A. RIGHT TO COUNSEL

       Martinez argues that he was denied his constitutional right to counsel because the trial court
denied his motion to adjourn trial.2 We disagree.

        We review a trial court’s ruling on a defendant’s request for an adjournment for an abuse
of discretion. People v Coy, 258 Mich App 1, 17; 669 NW2d 831 (2003). “An abuse of discretion
occurs when the trial court’s decision falls outside the range of principled outcomes.” People v
Sharpe, 502 Mich 313, 324; 918 NW2d 504 (2018). Constitutional issues, such as whether a
defendant was denied his right to counsel of choice, are generally reviewed de novo. People v
Idziak, 484 Mich 549, 554; 773 NW2d 616 (2009). In this case, however, Martinez did not
preserve his constitutional claim by presenting it in the trial court. See People v King, 297 Mich
App 465, 472; 824 NW2d 258 (2012). Therefore, we review Martinez’s constitutional claim for
plain error affecting substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130
(1999).

                To avoid forfeiture under the plain error rule, three requirements must be
         met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
         and the plain error affected substantial rights. The third requirement generally


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 Martinez also argues that the trial court’s denial of his motion to adjourn violated his right to due
process. However, because Martinez has fully abandoned the argument on appeal, we need not
address the argument. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).

                                                 -2-
       requires a showing of prejudice, i.e., that the error affected the outcome of the lower
       court proceedings. [Id. at 763.]

        The constitutional right to counsel encompasses the right of a defendant to choose his own
retained counsel. US Const, Am VI; US Const, Am XIV; 1963 Const, art 1, §§ 13 and 20; US v
Gonzalez-Lopez, 548 US 140, 144; 126 S Ct 2557; 165 L Ed 2d 409 (2006); People v Akins, 259
Mich App 545, 557; 675 NW2d 863 (2003). However, the right is not absolute, and a court must
balance the defendant’s right to choose his own counsel against “ ‘the public’s interest in the
prompt and efficient administration of justice[.]’ ” Akins, 259 Mich App at 557 (citation omitted).
Furthermore, a trial should not be adjourned except for good cause shown, and the defendant has
the burden of showing good cause. Coy, 258 Mich App at 18. To determine whether there is good
cause to adjourn, the Court considers “ ‘whether defendant (1) asserted a constitutional right, (2)
had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested
previous adjournments.’ ” Id. (citation omitted). Regardless of whether a defendant establishes
good cause, “the trial court’s denial of a request for an adjournment or continuance is not grounds
for reversal [on appeal] unless the defendant demonstrates prejudice as a result of the abuse of
discretion.” Id. at 17.

        Even if Martinez’s request for an adjournment implicated his constitutional right to
effective assistance of counsel and a fair trial, the record also reveals that Martinez failed to
establish that he was not negligent in the timing of his request. Martinez waited to assert his right
to hired counsel until the day of trial even though the trial court informed Martinez that trial was
scheduled for June 27, 2018, and that the trial court expected “both sides” to be “prepared.” The
trial court then warned Martinez that if he intended to retain an attorney, he would have to inform
the new attorney that the trial date was “firm” and that it was “not going anywhere” because the
trial court did not want to the matter to “linger.” Despite the fact that Martinez was cautioned
more than three months before trial that the trial court did not intend to adjourn trial, Martinez did
not retain new counsel. Rather, on the day of trial, Martinez’s attorney asked for an adjournment
because his client was “trying” to retain a specific attorney. See People v Stinson, 6 Mich App
648, 654-656; 150 NW2d 171 (1967) (holding that the trial court did not abuse its discretion when
denying a defendant’s motion to adjourn trial because the defendant had three months to retain
counsel but had not “attempted to avail himself of this opportunity”).

        The record also reveals that Martinez failed to establish a legitimate reason for granting the
adjournment. Martinez offered no specific reason for dissatisfaction with his appointed counsel
other than he was “unhappy” with appointed counsel. Martinez did not mention that there were
irreconcilable differences and he did not complain that appointed counsel was inadequate. In fact,
there is no indication that Martinez’s appointed counsel wished to withdraw. The attorney that
Martinez had hoped to hire was not available for trial on the scheduled day because he was on
vacation. Because of this, Martinez requested an adjournment of three to six weeks. On appeal,
Martinez argues that the trial court impermissibly denied the motion to adjourn based on a desire
to expedite the case. While docket concerns alone do not support the denial of an otherwise proper
request for an adjournment, People v Williams, 386 Mich 565, 577; 194 NW2d 337 (1972), we
conclude that Martinez’s negligence coupled with the fact that he did not establish a legitimate
need for adjournment supports the trial court’s decision to deny the motion for adjournment. Coy,
258 Mich App at 17. Thus, we conclude that the trial court did not abuse its discretion by denying
Martinez’s motion for an adjournment. Id.

                                                 -3-
         Additionally, we conclude that Martinez’s right to counsel of his own choice was not
violated. This Court has previously held that a defendant’s constitutional right to retain counsel
of his choice is not deprived when the trial court permits the defendant to retain new counsel but
denies a request to adjourn the trial to accommodate the defendant’s new counsel. Akins, 259 Mich
App at 558-559. At the March 20, 2018 pretrial conference, Martinez indicated that he wanted to
retain counsel. Like in Akins, 259 Mich App at 558, the trial court was willing to allow Martinez
to retain counsel; the only constraint placed on Martinez was that he would not be granted an
adjournment of the trial. Thus, because Martinez could retain any attorney he wanted—as long as
that attorney could be present for the scheduled trial date—we conclude that the trial court did not
erroneously deprive Martinez of his rights to a fair trial or counsel of choice. Moreover, even if
Martinez had established plain error, he would not be entitled to relief because he has failed to
establish how the outcome at trial would have been different if he had his counsel of choice.

                               B. RIGHT TO CONFRONTATION

        Martinez next argues that the trial court abused its discretion by admitting into evidence
the victim’s preliminary examination testimony and that its admission violated his rights under the
Confrontation Clauses of the Michigan and United States Constitutions. We disagree.

       A trial court’s decision to admit evidence is reviewed for an abuse of discretion, People v
Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010), and preserved constitutional issues are
reviewed de novo, Idziak, 484 Mich at 554.

         Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Unless
an exception applies, hearsay is not admissible into evidence. MRE 802. One such exception is
the former testimony of a declarant who is unavailable as a witness. MRE 804(b)(1). A witness
is unavailable if the witness cannot “testify at the hearing because of death . . . .” MRE 804(a)(4).
Under MRE 804(b)(1), where a witness is unavailable, testimony given by that witness “at another
hearing of the same or a different proceeding, if the party against whom the testimony is now
offered, . . . had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination,” is admissible. Among the factors to determine whether the party “had a
similar motive to examine a witness at the prior proceeding” are

               (1) whether the party opposing the testimony “had at a prior proceeding an
       interest of substantially similar intensity to prove (or disprove) the same side of a
       substantially similar issue”; (2) the nature of the two proceedings—both what is at
       stake and the applicable burden of proof; and (3) whether the party opposing the
       testimony in fact undertook to cross-examine the witness (both the employed and
       available but forgone opportunities). [People v Farquharson, 274 Mich App 268,
       278; 731 NW2d 797 (2007), quoting United States v DiNapoli, 8 F 3d 909, 914
       (CA 2, 1993).]

       Even when evidence is admissible under MRE 804, “it is still necessary to determine
whether use of the testimony would violate a defendant’s constitutional right to confront
prosecution witnesses.” People v Meredith, 459 Mich 62, 67; 586 NW2d 538 (1998). Testimony
given at a preliminary examination is testimonial in nature and implicates the Confrontation

                                                -4-
Clause. Crawford v Washington, 541 US 36, 60; 124 S Ct 1354; 158 L Ed 177 (2004). “Former
testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation Clause as long
as the witness is unavailable for trial and was subject to cross-examination during the prior
testimony.” People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009). See also Crawford,
541 US at 68.

        In this case, the victim testified at the preliminary examination, and Martinez’s counsel
cross-examined the victim at that time. Thereafter, the victim died from causes that were unrelated
to the gunshot wound he sustained in the robbery. The prosecution subsequently filed a motion in
limine to admit the preliminary examination testimony at trial under MRE 804, and the trial court
granted the motion.

        The issue on appeal is whether Martinez had a similar motive to cross-examine the victim
at the preliminary examination as he would have at trial. We conclude that he did. The
prosecutor’s purpose in presenting the victim’s testimony at the preliminary examination was the
same as at trial: to show that Martinez committed the charged crimes. Therefore, Martinez had an
“interest of substantially similar intensity” in proving or disproving the victim’s testimony at the
preliminary examination just as he did at trial. Farquharson, 274 Mich App at 278. Despite the
lower burden of proof at the preliminary examination as compared to the burden of proof at trial,
Martinez had a similar motive to cross-examine the victim in both proceedings—i.e., Martinez
was motivated to show that he did not commit the charged crimes. See id. Because the same
issues were at stake in both the preliminary examination and the trial, Martinez had a substantially
similar interest in those issues relative to the victim’s testimony in each of those proceedings. See
id.

         Martinez also argues that the preliminary examination testimony should not have been read
at trial because the jury lacked the opportunity to observe the victim’s demeanor. While witness
demeanor can be important, the substantive use of preliminary examination testimony at a trial
does not violate the constitutional right to confrontation as long as the prosecutor “exercised due
diligence to produce the absent witness[]” at trial and the testimony bears “satisfactory indicia of
reliability.” People v Bean, 457 Mich 677, 682-683; 580 NW2d 390 (1998). The victim in this
case died before trial, and we conclude that the victim’s testimony bears satisfactory indicia of
reliability. The victim was familiar with Martinez because he met him before the crimes were
committed and the two were Facebook friends. Shortly after the crimes were committed, the
victim provided law enforcement with Facebook photographs of Martinez. The victim testified
that he knew “exactly who it was” who “robbed [him]” and “was part of [him] getting shot.” Cell
phone evidence introduced at trial corroborated the victim’s testimony that Martinez invited the
victim to “hang out” and that Martinez left his phone in the victim’s car.3

      In sum, the trial court did not abuse its discretion in admitting the victim’s preliminary
examination testimony under MRE 804(b)(1), People v Benton, 294 Mich App 191, 195; 817
NW2d 599 (2011), and Martinez’s rights under the Confrontation Clauses of the Michigan and


3
 Testimony at trial revealed that a cell phone located in the victim’s vehicle was associated with
Martinez. A “cell phone dump” on the phone showed numerous texts between Martinez and the
victim, which revealed that the two had agreed to meet on October 30, 2017.

                                                -5-
United States Constitutions were not violated. Garland, 286 Mich App at 7. See also Crawford,
541 US at 68.

                            C. SUFFICIENCY OF THE EVIDENCE

       Martinez argues that there was insufficient evidence to prove that he entered into an
agreement to support his conspiracy to commit armed robbery and that there was insufficient
evidence of his “intent to kill.”

        We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310
Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether there was sufficient
evidence introduced at trial to support a conviction, this Court must view the evidence in a light
most favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012). “[A] reviewing court is required to draw all reasonable inferences
and make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392,
400; 614 NW2d 78 (2000).

       In People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011), this Court defined a
conspiracy as follows:

       A criminal conspiracy is a partnership in criminal purposes, under which two or
       more individuals voluntarily agree to effectuate the commission of a criminal
       offense. The individuals must specifically intend to combine to pursue the criminal
       objective, and the offense is complete upon the formation of the agreement. The
       intent, including knowledge of the intent, must be shared by the individuals. Thus,
       there must be proof showing that the parties specifically intended to further,
       promote, advance, or pursue an unlawful objective. Direct proof of a conspiracy is
       not required; rather, proof may be derived from the circumstances, acts, and
       conduct of the parties. [Quotation marks and citations omitted.]

        “[A]lthough the government need not prove commission of the substantive offense or even
that the conspirators knew all the details of the conspiracy, it must prove that ‘the intended future
conduct they . . . agreed upon include[s] all the elements of the substantive crime.’ ” People v
Mass, 464 Mich 615, 629 n 19; 628 NW2d 540 (2001) (citations omitted). Therefore, in this case,
the prosecution was required to prove (1) that Martinez intended to combine with others, and (2)
that the conspirators intended to accomplish an illegal objective, i.e., armed robbery. See id.

       The elements of armed robbery, MCL 750.529, are:

               (1) the defendant, in the course of committing a larceny of any money or
       other property that may be the subject of a larceny, used force or violence against
       any person who was present or assaulted or put the person in fear, and (2) the
       defendant, in the course of committing the larceny, either possessed a dangerous
       weapon, possessed an article used or fashioned in a manner to lead any person
       present to reasonably believe that the article was a dangerous weapon, or
       represented orally or otherwise that he or she was in possession of a dangerous


                                                -6-
       weapon. [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007) (citation
       omitted).]

Therefore, to prove that Martinez conspired to commit armed robbery, the prosecutor was required
to provide sufficient evidence to show that Martinez knowingly entered into an agreement with
Antonio and Gianni to use force or violence against the victim, in the course of committing a
larceny, and that a dangerous weapon was possessed in the course of committing the larceny.

        When viewing the evidence in a light most favorable to the prosecution, we conclude that
there was sufficient evidence to support the existence of a criminal conspiracy. Martinez asked
the victim drive to a particular location, and the victim did not expect anyone other than Martinez
to be at that location. Once the victim arrived, Martinez unexpectedly requested that the victim
drive him and Gianni and Antonio to the store. In order to get the victim to agree to this, Martinez
offered to buy the victim items from the store. Once Martinez, Antonio, and Gianni were in the
vehicle with the victim, Martinez stated: “This is how this is going to go.” Thereafter, Martinez,
Antonio, and Gianni began grabbing for the victim’s necklace and punching him. After the victim
was shot, Gianni and Antonio ran away with his backpack. However, Martinez did not run away;
he remained in the victim’s vehicle to steal his cell phone. Martinez’s statement and the men’s
actions show that the men previously agreed to commit robbery once they were inside the victim’s
vehicle. Additionally, and importantly, the victim testified that Martinez “[r]obbed [him], “was
part of [him] getting shot,” and “set [him] up.” Based on the circumstances and acts of the men,
it was reasonable for the jury to infer that the men entered into an agreement before the crime
occurred. See Jackson, 292 Mich App at 588.

       Martinez also argues that there was insufficient evidence to convict him of AWIM because
he did not have the specific intent to kill the victim. However, Martinez was not convicted of
AWIM; he was convicted of the lesser offense of AWIGBH. The specific intent to kill is not an
element of AWIGBH. See People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005).
Therefore, Martinez’s argument that there was insufficient evidence presented to convict him of
AWIM is without merit as he was not convicted of that offense.

                       D. INEFFECTIVE ASSISTANCE OF COUNSEL

       Martinez argues that the trial court abused its discretion when it denied his motions for a
new trial based on his claims of ineffective assistance and for a Ginther hearing. We disagree.

        “[A] trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse
of discretion.” People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). “A trial
court’s decision to deny a motion for a new trial is [also] reviewed for an abuse of discretion.”
People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

               A defendant must meet two requirements to warrant a new trial because of
       the ineffective assistance of trial counsel. First, the defendant must show that
       counsel’s performance fell below an objective standard of reasonableness. In doing
       so, the defendant must overcome the strong presumption that counsel’s assistance
                                                -7-
       constituted sound trial strategy. Second, the defendant must show that, but for
       counsel’s deficient performance, a different result would have been reasonably
       probable. [People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011)
       (citations omitted).]

        Martinez argues on appeal that he was denied the effective assistance of counsel because
he was denied his right to testify at trial. “A defendant’s decision whether to testify on his own
behalf is an integral element of trial strategy,” People v Toma, 462 Mich 281, 304; 613 NW2d 694
(2000), that is “best left to an accused and his counsel,” People v Martin, 150 Mich App 630, 640;
389 NW2d 713 (1986). A reviewing court “will not substitute its judgment for that of counsel
regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). “Although counsel
must advise a defendant of this right, the ultimate decision whether to testify at trial remains with
the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011).

        In this case, before the defense rested its case at trial, defense counsel requested five
minutes to discuss with Martinez his right to testify. After the discussion, defense counsel stated,
“Your Honor, I’ve discussed with my client his absolute right not to testify, his Fifth Amendment
right – I mean – yeah. His right to testify and not testify. He wishes to exercise his Fifth
Amendment right not to testify. Is that correct, sir?” Martinez responded, “Yes.” The trial court
could not hear Martinez and he, once again, said, “Yes.” The trial court clarified, “Yes you’re not
going to testify?” Martinez responded, “No. No, your Honor.” The defense rested its case without
any objection from Martinez.

         Thus, the record before us supports that defense counsel informed Martinez of his right to
testify and, based on that conversation, Martinez decided not to testify. To the extent that Martinez
claims that his decision was based on counsel’s advice, a decision concerning which witnesses to
call at trial is a matter of trial strategy, and we do not second guess trial counsel on such matters.
Moreover, given the overwhelming evidence of guilt and the fact that Martinez has failed to
explain or rationalize how his testimony at trial would have been helpful to his case, we further
conclude that Martinez has failed to establish that the result of the proceeding would have been
different had he testified. Furthermore, after examining the record thoroughly, we conclude that
the record was sufficient to make a determination on the issue of defense counsel’s effectiveness
with respect to the decision not to call Martinez as a witness at trial. Consequently, the trial court
did not abuse its discretion by failing to hold a Ginther hearing on this issue.

        Next, Martinez argues that the trial court improperly precluded him from conducting a
“testimonial hearing” “on the newly discovered evidence.” However, Martinez does not explain
or rationalize what new evidence was discovered, nor does he provide evidence or argument to
support that the “new evidence” would have been helpful to his case. Because Martinez has
abandoned this argument, we will not consider it. See People v Harris, 261 Mich App 44, 50; 680
NW2d 17 (2004).

       We further conclude that Martinez has failed to provide this Court with any evidence from
which to conclude that a remand to the trial court for a Ginther hearing is appropriate. For the
reasons discussed above, Martinez has failed to demonstrate that further factual development of
the record is required. See MCR 7.211(C)(1); see also People v Williams, 275 Mich App 194,

                                                 -8-
200; 737 NW2d 797 (2007) (“Because defendant has not set forth any additional facts that would
require development of a record to determine if defense counsel was ineffective, we . . . deny
defendant’s request for a remand.”).

       Affirmed.



                                                         /s/ Christopher M. Murray
                                                         /s/ Brock A. Swartzle
                                                         /s/ Thomas C. Cameron




                                             -9-
