                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      April 12, 2016
               Plaintiff-Appellee,

v                                                                     No. 325101
                                                                      Wayne Circuit Court
JALEN MICHAEL YELDER,                                                 LC No. 14-005519-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Defendant was convicted, following a bench trial, of four counts of assault with intent to
commit murder, MCL 750.83, carrying a weapon with unlawful intent, MCL 750.226, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to 14 ¼ to 22 years’ imprisonment for each assault with intent to
murder conviction, two to five years’ imprisonment for carrying a weapon with unlawful intent,
and two years’ imprisonment for felony-firearm. Defendant now appeals by right. We affirm
defendant’s convictions but remand for the ministerial task of correcting defendant’s judgment of
sentence.

        This case arises from a shooting that took place when four young men, Devaunte
McKinney, Dwight Mahone, Aaquil Cleary, and Willie Quarles, drove to a banquet hall in
Detroit to attend a graduation party. After they arrived, they stood in the street outside of the hall
speaking with friends inside of a parked car. The group of friends eventually noticed three men
walking toward them down the street. When the three men were approximately 25 feet away,
they began shooting and McKinney, Mahone, Cleary, and Quarles ran toward a CVS nearby to
seek shelter. Cleary, McKinney, and Mahone were all shot several times before making it inside
the CVS. McKinney, Mahone, Cleary, and Quarles all testified at defendant’s trial and both
Cleary and McKinney identified defendant as one of the shooters.

        In both his brief on appeal and standard 4 brief, defendant argues that he was denied the
effective assistance of counsel. Defendant contends that his counsel’s performance fell below an
objective standard of reasonableness when he 1) failed to consult with or retain an expert
regarding the unreliability of eyewitness testimony, 2) failed to use testimony from the
preliminary examination regarding the identification procedure during the live lineup to impeach
Cleary at trial, and 3) failed to present his alibi defense. We disagree.

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        To preserve a claim of ineffective assistance of counsel, a defendant must make a motion
for a new trial or an evidentiary hearing with the trial court. People v Heft, 299 Mich App 69,
80; 829 NW2d 266 (2012). Defendant never moved for a new trial or a Ginther1 hearing in the
trial court. Thus, this issue is unpreserved. Defendant did file a timely motion to remand for a
Ginther hearing with this Court concerning his counsel’s ineffectiveness. However, that motion
was denied.2 “When a defendant did not move in the trial court for a new trial or an evidentiary
hearing, this Court’s review is limited to mistakes apparent from the record.” Id.

         The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. “To demonstrate ineffective
assistance of counsel, a defendant must show that his or her attorney’s performance fell below an
objective standard of reasonableness under prevailing professional norms and that this
performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d
224 (2013), citing People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011). “To
demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, the
result of the proceedings would have been different.” Nix, 301 Mich App at 207. It is presumed
that trial counsel used effective trial strategy, and a defendant has a heavy burden to overcome
this presumption. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

        Defendant first asserts that he was denied effective assistance of counsel when defense
counsel failed to consult with or retain an expert witness to explain the unreliability of
eyewitness identification. We disagree. The decision “to call or question witnesses is presumed
to be [a] matter[] of trial strategy” and will only constitute ineffective assistance when it deprives
defendant of a substantial defense. People v Russell, 297 Mich App 707, 716; 825 NW2d 623
(2012). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (citation omitted).

        In support of his claim, defendant attaches the affidavit of cognitive psychologist Colleen
M. Seifert, in which she avers that she would have been willing to testify regarding “problematic
factors [that] were present in the eyewitness identification testimony in this case.” However,
because defendant did not make a record in the trial court about this in connection with a motion
for a new trial or an evidentiary hearing, the affidavit is not a part of the lower court record. This
Court’s review is limited to the facts contained on the record, Heft, 299 Mich App at 80, and,
thus, this affidavit cannot be properly considered.

         However, even if the affidavit were properly submitted, defendant has failed to overcome
the presumption that his counsel’s decision not to call an expert witness was trial strategy. This
was a bench trial where the judge, sitting as the trier of fact, determined the credibility and
reliability of witnesses. People v Kanaan, 278 Mich App 594, 621; 751 NW2d 57 (2008). “A
judge, unlike a juror, possesses an understanding of the law which allows him to ignore such


1
    See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
  People v Yelder, unpublished order of the Court of Appeals, entered September 11, 2015
(Docket No. 325101).


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errors and to decide a case based solely on the evidence properly admitted at trial.” People v
Taylor, 245 Mich App 293, 305; 628 NW2d 55 (2001).

         At trial, Mahone testified that he had no memory of the shooting, and Quarles admitted
that he did not see the faces of the shooters. However, Cleary identified Vaughn and defendant
as two of the shooters to the police from a photograph, and later also identified defendant in a
live lineup. Additionally, McKinney testified that when the shooters were approximately 30 feet
away he saw defendant’s face, and stated that he recognized defendant because they had attended
the same high school. Defense counsel cross-examined both Cleary and McKinney in an effort
to illustrate the unreliability of their identifications of defendant as the shooter. Defense counsel
elicited testimony from Cleary regarding the fact that he did not initially identify defendant in his
statement to police and that he had originally told police that the shooter was approximately 5
feet, 8 inches to 5 feet, 9 inches tall, while defendant is only 5 feet, 4 inches tall. Additionally,
defense counsel cross-examined Cleary regarding the fact that his identification of defendant as
the shooter stemmed from a photograph shown to him by a person who had not even been
present on the night of the shooting. Through cross-examination, defense counsel also
demonstrated that Cleary had not been previously acquainted with defendant before the night of
the shooting aside from seeing him in pictures on social media, and that Cleary did not even
know defendant’s name when he identified him to police. Defense counsel cross-examined
McKinney in a similar manner and established that McKinney had initially told the police that he
had never seen the shooter before, that the shooter was approximately 5 feet, 11 inches to 6 feet
tall, and that the shooter had a “medium” complexion while defendant had a “dark” complexion.
Additionally, defense counsel elicited testimony from McKinney that he had last seen defendant
two years before the shooting.

        Thus, the record reveals that defense counsel effectively cross-examined Cleary and
McKinney regarding the discrepancies in their identifications of defendant and the grounds for
regarding their identifications of defendant as the shooter as questionable. Defense counsel may
have concluded that an expert witness would have been cumulative. Defense counsel arguably
could have presented expert testimony explaining the unreliability of eyewitness identification to
buttress the misidentification defense, however, counsel’s failure to do so did not render his
performance below an objective standard of reasonableness. See People v Cooper, 236 Mich
App 643, 658; 601 NW2d 409 (1999) (finding the defendant did not overcome the presumption
that his counsel’s decision not to call an expert witness was trial strategy where counsel “elicited
apparent discrepancies and arguable bases for regarding [the] identification of defendant as the
shooter to be suspect.”). Accordingly, we reject defendant’s claim.

        Defendant next argues that he was denied the effective assistance of counsel when
defense counsel failed to use Cleary’s testimony from the preliminary examination regarding the
identification procedure during the live lineup to impeach him at trial. We disagree. Decisions
regarding how to question witnesses are presumed to be matters of trial strategy. People v Petri,
279 Mich App 407, 413; 760 NW2d 882 (2008). “This 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.” Id. at 411 (citation omitted).

        Defendant argues that, at the preliminary examination, “Cleary repeatedly testified that
the officer told him to pick number three.” At the preliminary examination, Cleary testified that

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he attended a lineup at the Detroit Detention Center, identified a person who was present the
night of the shooting, and informed police. He also stated that the police did not tell him who to
identify. He received a form when he viewed the lineup, which he completed. Regarding the
form, Cleary testified:

               Q. What did you write and tell the officer on that day?

               A. That the detective told me to pick out the lineup, pick number three
       and tell me to write --

               Q. I can’t hear.

               A. He told me to pick out the lineup and to pick number three. He told me
       to write that down number did (sic) and I wrote, “Walked up with the black hoody
       and pulled out a gun and start shooting.”

Defendant implies that this testimony leads to the inference that Cleary’s identification was aided
by police involvement and was, therefore, not credible.3

        At trial, Cleary testified that during the live lineup the police told him to “pick out the one
you think it, that you see that was in the picture.” Cleary later clarified that the police did not tell
him who to choose from the lineup, and that he picked the person that he “remember[ed] seeing
that night.” In fact, at trial, Cleary testified several times that the police did not tell him who to
choose, and that he had picked defendant out of the lineup because that is who he saw during the
shooting.

        Under MRE 801(d)(1)(A), defense counsel was entitled to attack the credibility of
Cleary’s identification by referring to Cleary’s statements from the preliminary examination,
which were inconsistent with his trial testimony. However, instead, defense counsel chose to
attack the credibility and reliability of Cleary’s identification by impeaching Cleary’s trial
testimony with the statement he made to police after the shooting that contained a description of
the shooter that was inconsistent with defendant’s physical appearance. The record reveals that
defense counsel used the police statement to effectively cross-examine Cleary regarding the
credibility and reliability of his identification of defendant.

         While defense counsel arguably could have also attempted to attack the credibility and
reliability of Cleary’s identification with his preliminary examination testimony, counsel’s
failure to cross-examine Cleary regarding every contradictory aspect of his testimony and prior


3
  We note that when Cleary’s statement is read in context of his entire preliminary examination
testimony, there is some ambiguity. Prior to saying “He told me… to pick number three,”
Clearly had testified that he saw the person present at the shooting and indicated to police who
that person was. While clarification of Cleary’s statement at the preliminary examination
certainly would have been helpful, we take the statement at face value for the purposes of this
appeal.


                                                  -4-
statements does not constitute ineffective assistance of counsel. Cleary was the complainant who
initially identified defendant as the shooter and brought the photograph of defendant to the
police, which lead to defendant being involved in the live lineup to begin with. Thus, defense
counsel may have reasonably concluded that attempting to attack the credibility of Cleary’s
identification by suggesting that he selected defendant from the lineup only because the police
told him to would have been unpersuasive.

        Defendant also argues that defense counsel was ineffective by failing to present his alibi
defense. We disagree. At defendant’s arraignment, defense counsel stated that he “would be
thoroughly investigating the alibi on this case.” However, at subsequent pretrial proceedings,
defense counsel indicated that he had a “witness problem.” Defense counsel explained that
“[o]ne of the witnesses landed in Oakland County Jail and there was also a name problem. So it
was hard to track him down until this morning. But we may be able to do without him. And I
am going to see.” At trial, after the prosecution rested, defense counsel stated, “the defense filed
an alibi defense. And, again, discussed it with [defendant]. And for strategic reasons, at this
time, I believe it’s our decision not to go ahead with the alibi defense, and we’ll withdraw it.”
When asked if that was correct, defendant stated, “yes.” Defendant also never objected to his
counsel’s waiver of an alibi defense at any other point during trial, or at sentencing.

        Thus, defendant waived this claim of error by personally expressing satisfaction with
defense counsel’s decision to forgo the alibi defense. As stated in People v Kowalski, 489 Mich
488, 503; 803 NW2d 200 (2011), “[t]his Court has defined waiver as “the intentional
relinquishment or abandonment of a known right. One who waives his rights under a rule may
not then seek appellate review of a claimed deprivation of those rights, for his waiver has
extinguished any error.” Accordingly, because the record indicates that defendant acquiesced in
the decision not to present an alibi defense, any potential error was extinguished, and he may not
now predicate a claim of error on that decision.

       Last, defendant argues that, because the predicate felony for his felony-firearm charge
was assault with intent to murder, the trial court erred when it ordered that his sentence for
carrying a weapon with unlawful intent be consecutive to his felony-firearm sentence. The
prosecution concedes this error, and we agree. See People v Clark, 463 Mich 459, 463-464; 619
NW2d 538 (2000).

       We affirm defendant’s convictions and sentences, but remand so that the judgment of
sentence can be amended to reflect that defendant’s sentence for carrying a weapon with
unlawful intent run concurrent to his sentence for felony-firearm. We do not retain jurisdiction.


                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Karen M. Fort Hood




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