                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 19, 2015
              Plaintiff-Appellee,

v                                                                  No. 318383
                                                                   Wayne Circuit Court
TAHRI ARLANDIS SMITH,                                              LC No. 13-004750-FC

              Defendant-Appellant.


Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ.

PER CURIAM.

        Defendant Tahri Arlandis Smith appeals by right his jury convictions of first-degree
premeditated murder, MCL 750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b),
assault with intent to commit murder, MCL 750.83, first-degree home invasion, MCL 750.110a,
and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
sentenced Smith to serve life in prison for the murder convictions, to serve 25 to 50 years in
prison for the assault conviction, to serve 10 to 20 years in prison for the home invasion
conviction, and to serve two years in prison for the felony-firearm conviction. Because we
conclude there were no errors warranting relief, we affirm.

                                       I. BASIC FACTS

        The jury convicted Smith on the basis of evidence that, in April 2013, Smith shot and
killed Maria Zavala with a single shot to her head and then shot Zavala’s neighbor, Angela
Lampkin, several times. Zavala and Lampkin lived in a house in Detroit that had been divided
into two flats. Zavala occupied the upstairs unit with her boyfriend, Kenneth Owens. According
to the prosecution, Smith knew Zavala and Owens and went to their flat with three other men to
rob them, but ended up killing Zavala and tried to kill Lampkin because she could identify him.

        At the time of the shootings, Owens was riding a bus to Indiana and was talking to Zavala
on his cell phone when Smith arrived. Owens testified that Zavala told him that Smith was
present with three other men armed with guns. Owens heard someone ask Zavala for money and
then heard Zavala drop her phone. Lampkin, who was being held downstairs at gunpoint, heard
a single gunshot and the sound of something dropping. Owens called 911, but the call went to a
local dispatcher in Ohio who could not assist him. Owens then contacted Dealvis Young and
Gregory Hill (Lampkin’s boyfriend), for assistance. Hill and Lampkin had already called 911 in
Detroit at 12:17 a.m., which was the same time that the dispatcher in Ohio received the call from
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Owens. Lampkin testified that after Smith came down from Zavala’s unit with the other men, he
admitted he shot Zavala and then proceeded to shoot her.

                               II. INEFFECTIVE ASSISTANCE

        Smith argues on appeal that his trial lawyer did not provide him with effective assistance.
Because the trial court did not hold an evidentiary hearing on this claim of error, we review this
claim of error for mistakes that are apparent on the record alone. People v Matuszak, 263 Mich
App 42, 48; 687 NW2d 342 (2004). In order to establish his claim, Smith must show that his
trial lawyer’s acts or omissions fell below an objective standard of reasonableness under
prevailing professional norms and that, but for the unprofessional errors, there is a reasonable
probability that the outcome of the trial would have been different. People v Gioglio (On
Remand), 296 Mich App 12, 22; 815 NW2d 589 (2012), lv denied in relevant part 493 Mich 864.

        Smith first argues that it was unreasonable for his lawyer to waive Young as a witness.
The decision to call a particular witness is a matter of trial strategy. People v Davis, 250 Mich
App 357, 368; 649 NW2d 94 (2002). This Court presumes that the defendant’s trial lawyer acted
competently. Gioglio, 296 Mich at 22. “Reviewing courts are not only required to give counsel
the benefit of the doubt with this presumption, they are required to affirmatively entertain the
range of possible reasons that counsel may have had for proceeding as he or she did.” Id.
(quotation marks and citation omitted). If this Court concludes that there might have been a
legitimate strategic reason for the lawyer’s act or omission after reviewing the range of possible
reasons for proceeding as he or she did, this Court must conclude that the act or omission fell
within the range of reasonable professional conduct. Id. at 22-23.

        The prosecutor originally endorsed Young as a witness, but indicated that she would not
be calling him at trial. She nevertheless agreed to ensure that Young was available for the
defense. Smith’s trial lawyer expressed his belief that Young’s testimony would be hostile to the
defense, but stated that he wanted Young to remain present for trial. Smith’s lawyer later
informed the court that, after conferring with Smith, they had decided not to call Young as a
witness; at that point, the trial court excused Young.

        On this record, we must conclude that Smith’s lawyer chose not to call Young as a matter
of reasonable trial strategy. It is apparent that defense counsel had the opportunity to learn the
substance of Young’s testimony, and there is no basis for concluding that Young’s testimony
would have been favorable to the defense. Testimony showed that Owens phoned Young and
asked him to go to the victims’ house after his call with Zavala. The prosecutor advised defense
counsel on the record that Young had reported seeing Smith leaving the victims’ house.
Considering that Owens’ testimony provided an explanation for Young’s presence at the house,
and the representation that Young could establish Smith’s presence at the time of the shooting, a
reasonable lawyer could conclude that it would not be beneficial to call Young. Accordingly,
Smith has not overcome the presumption that the decision was a matter of reasonable trial
strategy. Gioglio, 296 Mich at 22-23. Although Smith argues that the case should be remanded
for an evidentiary hearing on this issue, he has not offered any proof showing that Young would
have provided testimony favorable to the defense. Therefore, he has not established grounds for
a remand.


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        Smith next argues that his lawyer was ineffective for not honoring Smith’s request to
testify at trial. A criminal defendant has a constitutional right to testify. People v Simmons, 140
Mich App 681, 683-684; 364 NW2d 783 (1985). While the decision whether to call the
defendant to testify is generally a matter of trial strategy, People v Martin, 150 Mich App 630,
640; 389 NW2d 713 (1986), the defendant retains the ultimate authority to decide whether to
testify. See Jones v Barnes, 463 US 745, 751; 103 S Ct 3308; 77 L Ed 2d 987 (1983). Thus, the
defendant has the right to testify even if counsel disagrees with that decision. Simmons, 140
Mich App at 685. Counsel has the responsibility to advise the defendant “of his right to testify
or not to testify, the strategic implications of each choice, and that it is ultimately for the
defendant himself to decide,” and violation of that responsibility can constitute ineffective
assistance of counsel. United States v Teague, 953 F2d 1525, 1533-1535 (CA 11, 1992).
Consistent with these principles, the record at trial discloses that Smith’s lawyer met with him
during trial, advised him of his constitutional right to testify, discussed the possible advantages
and disadvantages of having him testify, and left the ultimate decision whether to testify with
Smith. Upon questioning by the trial court, Smith acknowledged that, after discussing the matter
with his lawyer, it was “not [his] desire to take the stand.” On this record, we conclude that
Smith’s argument is without any merit.

        Smith next argues that his lawyer was ineffective for stipulating that the times listed for
some of the telephone calls between Owens and Zavala might have been off by one hour due to
the effect of daylight savings time. Smith maintains that this stipulation allowed the jury to
ignore discrepancies in the prosecutor’s timeline. The record shows that Smith’s lawyer
withdrew the stipulation and the trial court instructed the jury not to follow it. A jury is
presumed to have followed the court’s instructions. People v Graves, 458 Mich 476, 486; 581
NW2d 229 (1998). Further, defense counsel addressed the timeline issue at length during
closing argument and explained why he believed that there was a discrepancy in the timing of
Owens’ calls. The effect of withdrawing the stipulation allowed counsel to argue that the
telephone records for Owens and Zavala were accurate. In sum, to the extent that defense
counsel’s original stipulation was objectively unreasonable, Smith was not prejudiced in light of
the fact that the stipulation was later withdrawn, the jury was instructed not to follow it, and
counsel was able to argue that the listed times for various phone calls created discrepancies with
the prosecutor’s timeline. Smith also argues that the record should be further developed on this
issue at an evidentiary hearing. But because he has not presented any offer of proof indicating
what additional facts could be established, he has not demonstrated that an evidentiary hearing is
necessary.

       Smith has not demonstrated that his trial lawyer provided ineffective assistance.

                                     III. INVESTIGATOR

        Contrary to Smith’s assertion, the record discloses that the trial court appointed Joseph
Bruce as a defense investigator and that Bruce assisted in investigating the case for trial. Thus,
there is no merit to this issue. To the extent Smith argues that a new investigator should be
appointed, he has not identified any new evidence or facts that need to be investigated. His
argument is based on pure speculation and does not warrant relief. See People v Johnson, 245
Mich App 243, 260; 631 NW2d 1 (2001).


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                   IV. CORRECTION OF THE JUDGMENT OF SENTENCE

        The jury convicted Smith of alternative counts of first-degree premeditated murder, MCL
750.316(1)(a), and first-degree felony murder, MCL 750.316(1)(b). He now argues that because
his convictions arise from the death of a single victim, this case should be remanded for
correction of the judgment of sentence to reflect a single conviction and single life sentence for
first-degree murder. Smith correctly observes that multiple murder convictions and sentences
arising from the death of a single victim violate the double jeopardy. People v Orlewicz, 293
Mich App 96, 112; 809 NW2d 194 (2011). However, the trial court addressed this at sentencing
and clarified that the alternative murder theories would be merged into a single conviction and
sentence for murder. The trial court indicated on the judgment of sentence that Smith’s two
convictions for murder were “merged.” A review of the Department of Corrections’s Offender
Tracking Information System website confirms that Smith is listed as having only one conviction
and one life sentence for first-degree murder. Accordingly, Smith has not demonstrated a need
to have his sentence corrected.

       There were no errors warranting relief.

       Affirmed.



                                                            /s/ Deborah A. Servitto
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Michael J. Kelly




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