                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 12, 2015
              Plaintiff-Appellee,

v                                                                  No. 319251
                                                                   Wayne Circuit Court
MIGUEL ANGEL BAEZ,                                                 LC No. 13-006691-FC

              Defendant-Appellant.


Before: MARKEY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of assault with intent to commit
great bodily harm less than murder, MCL 750.84(1)(a), felon in possession of a firearm, MCL
750.224f, and assault with a dangerous weapon (felonious assault), MCL 750.82(1).1 The trial
court sentenced defendant, as a third habitual offender, MCL 769.11(1), to 90 to 180 months’
imprisonment for the assault with intent to commit great bodily harm conviction, 1 to 10 years’
imprisonment for the felon in possession of a firearm conviction, and 1 to 8 years’ imprisonment
for the felonious assault conviction. For the reasons set forth in this opinion, we affirm.

                                      I. BACKGROUND.

        This appeal arises from a shooting that occurred on July 6, 2013, at 1160 Livernois in
Detroit. Marcus Tabb and Danny Driver were sitting on the porch of an apartment building
located at the Livernois address when Marcus’s cousin, Larodrick Tabb, drove by in a Ford
Escape with defendant seated on the passenger’s side. Initially, Larodrick’s sister, Shajuana
James, followed behind the Escape in a second car with her daughter Shantia James. Larodrick
and Shajuana argued with Marcus and Driver from inside their respective cars accusing Marcus
and Driver of stealing copper pipe from their former home. Both vehicles eventually drove
away, but the Escape drove past the apartment building two more times. When the Escape


1
  The convictions for assault with intent to commit great bodily harm less than murder and
felonious assault applied to Danny Driver. Defendant was also charged with, but acquitted of,
assault with intent to murder Driver, MCL 750.83, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b.


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pulled in front of the apartment building a third time, Marcus challenged Larodrick to a fight.
Defendant then got out of the Escape, walked around the rear of the car and started shooting at
Marcus and Driver. He shot Driver in the left ankle. Police obtained statements from witnesses,
some of whom knew defendant for several years, one being Cleshay Martin. Two witnesses
provided police with defendant’s name, and Martin showed police defendant’s picture on
Facebook.

       Prior to trial, defendant filed a notice of alibi informing the prosecution that defendant
planned to call Shajuana and Shantia to testify that defendant was helping them move furniture
around 12:45 p.m. on the date of the shooting. During opening statements, defense counsel told
the jury that defendant did not commit the crime because he was not there. Counsel then
informed the jury that she had filed an alibi defense.

        Defense counsel represented that alibi witnesses Shajuana and Shantia were present on
the first day of trial. Martin testified that she had seen the two women involved in the initial
argument over copper pipe present in court that day. Between the first and second days of trial,
Shajuana called defense counsel and reported that Detroit Police Sergeant Todd Eby asked her
and Shantia to leave the building following an argument with the prosecution’s witnesses.
However, defense counsel was unsuccessful in calling Shajuana back and asking her to return to
court. Upon learning of the issue on the second day of trial, the trial court asked the police to
send a note to the witnesses’ home:

               [Defense Counsel]: Judge, yesterday, apparently, something erupted in the
       hall between my two witnesses and the victims, victim and other, their witnesses.
       My witnesses were asked to leave the building and never come back2. I tried to
       call them this morning—

              The Court: (Interposing) [w]ho told them never to come back?

              [Defense Counsel]: I don’t know. It was an officer.

              [Prosecution]: I was told by Sergeant Eby that they were out in the
       hallway and the witnesses on her case were trying to intimidate the witnesses on
       my case and there was a big argument. And they told them to leave. And they
       left. Then they tried to come back upstairs. And so, they walked them out of the
       building to the parking structure….

                                                 * * *




2
 Defendant contends that Eby told both witnesses to leave and never to return to the courthouse.
There is no direct testimony that Eby told the witnesses never to return to the courthouse. The
only record evidence of what Eby actually told the witnesses is the hearsay statement of
Shajuana offered by defense counsel to the trial court.


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        The Court: But Eby cannot tell people not to come in the building. He
really can’t tell people to leave. His job is to come get court personnel because he
doesn’t have jurisdiction to direct people to do anything. He’s acting outside of
his authority. The authority for security is vested in the Wayne County Sheriffs
and, specifically, kind of room-by-room.

       So, if you will let Mr. Eby know, on the streets, his word is whatever his
word is. But if he has any difficulty, his course of action is to come and let one of
the courtroom deputies handle the security....

       [Defense Counsel]: My point is I don’t have any witnesses.

       The Court: Well, one thing about it is you’ve got a number you can call
them and you can tell them to come down.

       [Defense Counsel]: I can’t call them. I couldn’t get through at all. I
mean, there phone was—[i]t wasn’t disconnected—

      The Court: (Interposing) [o]kay. But still, this man said he didn’t tell
anybody to leave.

       [Defense Counsel]: They were, they were—

       The Court: (Interposing) [o]kay. Who told you, who told you—

       [Defense Counsel]: (Interposing) [j]udge, I don’t—

       The Court: (Interposing) [t]hat they were told not to come back?

       [Defense Counsel]: I received a phone call from, I think it was one of the
witnesses—

       The Court: (Interposing) [o]kay. Who, Ms. Erwin?

       [Defense Counsel]: Shajuana James.

       The Court: Okay. So, you got called—

       [Defense Counsel]: (Interposing) [s]aid that she was asked to leave and,
her daughter and they left [sic].

       The Court: So, she used a phone and she didn’t, and how you can’t get
back to her?

        [Defense Counsel]: I can’t. No. I tried to rectify it this morning to make
sure they were going to be back, but—

       The Court: (Interposing) [b]y doing what?


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                 [Defense Counsel]: Calling them.

               The Court: Okay. Well, then we’ll send the police by 4204 Central over
       on the [w]est side, leave a little—[y]ou make them a note….

The record is silent concerning whether the note ordered by the trial court was delivered or
received. It is undisputed however, that Shajuana and Shantia failed to appear on the third day of
trial. Rather than ask for a continuance or further assistance in securing the witnesses, defendant
rested:
                The Court: This is People of the state of Michigan versus Mr. Baez.
        Okay, Ms. Erwin, have you got your witnesses?

                 [Defense Counsel]: No.

                 The Court: Okay. So, what are you going to do?

                                                   * * *

               [Defense Counsel]: (Interposing) Judge, you know, I tried to get them last
       night and I’ve had no contact with them.

                 Defendant: They’re not here?

                 [Defense Counsel]: No.

                 The Court: Okay. So, my question is: What are you going to do?

                 [Defense Counsel]: Well, I guess I’m going to rest. I don’t have any
       choice.

       Defendant was convicted and sentenced as stated above. This appeal then ensued.

                                           II. ANALYSIS.

        On appeal, defendant argues that Eby’s conduct in ordering Shajuana and Shantia to
leave violated his right to compulsory process and also violated his right to present a defense. As
a result, defendant argues that he is entitled to a remand for an evidentiary hearing “to establish
that his defense was sufficiently prejudiced by [the absence of his alibi witnesses] to require a
new trial.”
        Defendant failed to assert any objection regarding his right to compulsory process or to
present a defense in the trial court, leaving this issue unpreserved. People v Moorer, 262 Mich
App 64, 67-68; 683 NW2d 736 (2004). Unpreserved constitutional claims are reviewed for plain
error. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). Failure to assert a
constitutional right ordinarily constitutes a forfeiture of that right. People v Vaughn, 491 Mich
642, 654; 821 NW2d 288 (2012). “In analyzing a forfeited claim of error, a defendant is not
entitled to relief unless he can establish (1) that the error occurred, (2) that the error was ‘plain,’
(3) that the error affected substantial rights, and (4) that the error either resulted in the conviction


                                                  -4-
of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” Id., citing Carines, 460 Mich at 763.

       The Sixth Amendment to the United States Constitution guarantees a defendant the right
to compulsory process to obtain witnesses in his defense. US Const, Am VI. The Michigan
Constitution guarantees the same right. Const 1963, art 1, § 20. “The right to offer the
testimony of a witness, and to compel their attendance, if necessary, is in plain terms the right to
present a defense.” Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967).
Though the right to compulsory process is fundamental, it is not absolute. People v McFall, 224
Mich App 403, 408; 569 NW2d 828 (1997). It requires a showing that the absent witnesses’
testimony would be both material and favorable to the defense. Id. Unsupported claims that the
witness is material or necessary are insufficient to establish materiality. Id. at 410.

        It is clear that defendant’s alibi witnesses Shajuana and Shantia were present on the first
day of trial. They reportedly engaged in an argument with the prosecution’s witnesses in the
hallway and, as a result, Eby asked them to leave the building. Between the first and second
days of trial, Shajuana called defense counsel and reported the incident. However, defense
counsel was unsuccessful in calling Shajuana back and asking her to return to court. Upon
learning of the issue on the second day of trial, the trial court asked the police to send a note to
the witnesses’ home. Rather than ask for a continuance or further assistance in securing the
witnesses, defendant rested. On these facts, defendant has not demonstrated a violation of his
right to compulsory process. As an initial matter, defendant does not argue that the trial court’s
efforts to recall Shajuana and Shantia by sending the note were insufficient. Instead, defendant
suggests that the note “did not get to [the alibi witnesses] in time to have them reappear.” The
record reveals that the trial court ordered the note immediately after learning that Shajuana and
Shantia had been improperly dismissed from the building. Defendant does not explain how the
trial court could have acted earlier or how else it should have reached out to the witnesses,
particularly given the fact that Shajuana was not returning defense counsel’s repeated telephone
calls.

         When Shajuana and Shantia did not appear to testify on the third day of trial, defendant
did not ask for a continuance to locate the alibi witnesses or seek any other assistance from the
trial court to compel their presence. In essence, defendant did not invoke his right of compulsory
process. The trial court was not required to offer defendant such assistance sua sponte. See, e.g.,
People v Elston, 462 Mich 751, 764; 614 NW2d 595 (2000) (“The longstanding rule of this state
is that, in the absence of a request for a continuance, a trial court should assume that a party does
not desire a continuance.”) Because defendant never requested a continuance or any other
assistance in producing his alibi witnesses, no error occurred.

        Defendant’s compulsory process claim also fails because he has not established that the
missing witnesses’ testimony would be material and favorable to his defense. McFall, 403 Mich
App at 408. He offers no affidavit or other form of proof summarizing Shajuana’s and Shantia’s
anticipated testimony. Absent such proof, defendant cannot demonstrate plain error, and is not
entitled to his request that this Court remand for an evidentiary hearing. See MCR
7.211(C)(1)(a)(ii) (“A motion [to remand] under this subrule must be supported by affidavit or
offer of proof regarding the facts to be established at the hearing.”)


                                                -5-
         Our review of the record evidence leads us to conclude that even assuming Shajuana and
Shantia testified consistent with the notice of alibi, the jury still could have found defendant
guilty beyond a reasonable doubt. The notice of alibi does not account for defendant’s
whereabouts at the time of the shooting. The notice states that defendant was helping Shajuana
and Shantia move furniture from Livernois to Central Street at 12:45 p.m. on the day of the
shooting. Witness testimony established that Larodrick first stopped at the apartment building on
Livernois between 10:00 a.m. and 10:30 a.m. and that the shooting occurred approximately 30
minutes later, around 11:00 a.m. Hence, even had they testified in accordance with defendant’s
notice of alibi, said alibi did not cover the time of the shooting. Given the evidence presented,
and assuming that both witnesses testified in strict accordance with the notice of alibi, defendant
could still have been found guilty beyond a reasonable doubt. The testimony of Marcus, Driver,
and four other witnesses clearly put defendant at the scene prior to 12:45 p.m. and clearly
identified defendant as the shooter. It is therefore likely that even if the witnesses would have
testified according to the notice of alibi, the jury could have found beyond a reasonable doubt
that defendant committed the crime and then went to help Shajuana and Shantia move furniture
approximately an hour and a half later. Accordingly, on this record, we cannot conclude that
defendant has suffered any prejudice due to the nonappearance of his alibi witnesses.

       Affirmed.




                                                            /s/ Jane E. Markey
                                                            /s/ Christopher M. Murray
                                                            /s/ Stephen L. Borrello




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