                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 23, 2014
               Plaintiff-Appellee,

v                                                                  No. 313900
                                                                   Wayne Circuit Court
RICHARD ALLEN ALAKSON, III,                                        LC No. 12-005229-FC

               Defendant-Appellant.


Before: FITZGERALD, P.J., and WILDER and OWENS, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of two counts of armed robbery,
MCL 750.529, two counts of felonious assault, MCL 750.82(1), and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to
concurrent terms of six to 30 years’ imprisonment for each of the armed robbery convictions, and
two to four years’ imprisonment for each of the felonious assault convictions, and to a
consecutive term of two years’ imprisonment for the felony-firearm conviction. We affirm.

         Defendant argues that his trial counsel was ineffective for failing to move to sever his
trial from the trials of his codefendants, or at a minimum, to move for separate juries.1 We
disagree. Because defendant did not move for a new trial or an evidentiary hearing with the trial
court, this issue is unpreserved. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
When an ineffective assistance of counsel claim is unpreserved, “this Court’s review is limited to
mistakes apparent from the record.” Id. We review findings of fact for clear error and questions
of law de novo. Id.

       Both the United States Constitution and the Michigan Constitution guarantee criminal
defendants the right to the effective assistance of counsel. US Const, Am VI; Const 1963, art 1,
§ 20. To establish ineffective assistance of counsel, the defendant must show (1) that counsel’s
performance was deficient in that it fell below an objective standard of reasonableness under


1
 Defendant’s codefendants, Christopher Bereta and Calvin Bruning, were acquitted of the same
charges by the same jury.


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prevailing professional norms, and (2) that the deficient performance prejudiced the defense.
Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To
prove that the deficient performance prejudiced the defense, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.

        As stated, defendant argues that his trial counsel was ineffective for failing to move to
sever his trial from the trials of his codefendants or at least request separate juries. “There is a
strong policy favoring joint trials in the interest of justice, judicial economy, and administration,
and a defendant does not have an absolute right to a separate trial.” People v Etheridge, 196
Mich App 43, 52; 492 NW2d 490 (1992). A trial court must sever the trial of codefendants on
related offenses only when the defendant shows that “severance is necessary to avoid prejudice
to substantial rights of the defendant.” MCR 6.121(C); Etheridge, 196 Mich App at 53. Under
MCR 6.121(D), a trial court has the discretion to grant a request for severance “on the ground
that severance is appropriate to promote fairness to the parties and a fair determination of the
guilt or innocence of one or more of the defendants.” When determining if severance is
appropriate, a trial court may consider factors like “the potential for confusion or prejudice
stemming from either the number of defendants or the complexity or nature of the evidence” and
“the convenience of witnesses.” MCR 6.121(D).

         To show that severance is necessary, a defendant must provide the court with a
supporting affidavit, or make an offer of proof, “that clearly, affirmatively, and fully
demonstrates that his substantial rights will be prejudiced and that severance is the necessary
means of rectifying the potential prejudice.” People v Hana, 447 Mich 325, 346; 524 NW2d 682
(1994); see also MCR 6.121(C). Such a showing is not made by codefendants’ plans to present
inconsistent defenses. Hana, 447 Mich at 349. “[R]ather, the defenses must be ‘mutually
exclusive’ or ‘irreconcilable.’ ” Id. Essentially, the defenses must be such that “a jury would
have to believe one defendant at the expense of the other.” Id. (internal quotation marks and
citation omitted). Finally, proper jury instructions can reduce the risk of prejudice resulting from
a joint trial. Id. at 351; see also Zafiro v United States, 506 US 534, 539; 113 S Ct 933; 122 L Ed
2d 317 (1993).

        Even assuming that defendant’s trial counsel knew what evidence would be presented at
trial and what arguments would be made by the prosecutor and other defense attorneys, counsel
was not ineffective for failing to move for a separate trial. Defendant contends that severance
would have been required under MCR 6.121(C) because his and his codefendants’ defenses were
mutually exclusive or irreconcilable. In the alternative, defendant argues that it would have been
an abuse of discretion under MCR 6.121(D) for the trial court to deny a motion to sever or a
motion for separate juries. We disagree.

       Defendant’s defense was not mutually exclusive or irreconcilable with the defenses of
Calvin Bruning and Christopher Bereta. David Vernon Banks’s testimony implicated Bereta and
Bruning and was silent with respect to defendant. Ryan King’s testimony implicated Bereta,
Bruning, and defendant. Caitlyn Szolach testified that defendant was present and took part in the
robbery. She said that Bereta and Bruning were not present and had nothing to do with the
robbery. Caitlin Smith’s testimony placed defendant at the scene of the robbery. She claimed

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that she did not see any robbery or assault occur, but she assumed that the three guys that ran up
behind her toward King’s car were defendant, “Mikey,” and “Justin.” Smith denied ever
meeting Bereta or Bruning and said they were not at the trailer park the night of January 28,
2012, which is when the robbery occurred. It was possible for a jury to conclude that defendant,
Bereta, and Bruning all took part in the assault and robbery, since all witnesses agreed that it was
perpetrated by three males. A jury could disbelieve the testimony of Szolach and Smith that
Bereta and Bruning were not involved. It would not have been necessary for the jury to acquit
Bereta and Bruning at the expense of defendant, or vice versa, so their defenses were not
mutually exclusive. See Hana, 447 Mich at 349.

        Furthermore, we note that these witnesses were not presented by any of the defendants.
A defendant can show that severance is necessary to rectify potential prejudice by demonstrating
codefendants’ plans to present irreconcilable defenses. See Hana, 447 Mich at 346. These
witnesses, and their conflicting testimony, were all presented by the prosecution. To the extent
that the attorneys for Bruning and Bereta did point fingers at defendant during their closing
arguments, such arguments do not constitute mutually exclusive or irreconcilable defenses:

       “It is natural that defendants accused of the same crime and tried together will
       attempt to escape conviction by pointing the finger at each other. Whenever this
       occurs the co-defendants are, to some extent, forced to defend against their co-
       defendant as well as the government. This situation results in the sort of
       compelling prejudice requiring reversal, however, only when the competing
       defenses are so antagonistic at their cores that both cannot be believed.
       Consequently, we hold that a defendant seeking severance based on antagonistic
       defenses must demonstrate that his or her defense is so antagonistic to the co-
       defendants that the defenses are mutually exclusive. Moreover, defenses are
       mutually exclusive within the meaning of this rule if the jury, in order to believe
       the core of the evidence offered on behalf of one defendant, must disbelieve the
       core of the evidence offered on behalf of the co-defendant.” [Hana, 447 Mich at
       349-350, quoting State v Kinkade, 140 Ariz 91, 93; 680 P2d 801 (1984).]

         Bereta’s and Bruning’s attorneys also hardly discussed defendant or argued that he was
guilty during their closing arguments. Bereta’s attorney did talk about Szolach’s testimony and
said that both the prosecutor and defendant’s attorney wanted to discredit her. Bereta’s attorney
asserted, “Mr. Dunn [defendant’s attorney] doesn’t want you to believe Caitlyn Szolach or
Caitlin Smith because it hurts his client.” Bereta’s counsel then argued that defendant’s attorney
tried to ask Szolach a trick question:

       He asked her a trick question: ‘Did you tell the detective Reco [defendant], Calvin
       Bruning, [sic] Chris Bereta walked toward the trailer?’ That was his question,
       trick question. Her response was no, it wasn’t Calvin and Chris, they weren’t
       there. She testified that she was 100% sure Mr. Bereta was not there.

This argument does not really implicate defendant. Rather, it appears that Bereta’s attorney was
focusing on the fact that Szolach has consistently said that Bereta was not at the trailer park
when the robbery occurred. This is consistent with the vast majority of the closing argument
made by Bereta’s attorney. He focused on the inconsistencies in Banks’s and King’s testimony

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and said that they were mistaken in identifying Bereta and Bruning as the perpetrators. He also
argued that Szolach and Smith have consistently said that Bereta and Bruning were not present at
the trailer park.

        Bruning’s attorney did not even mention defendant except once, in passing. Instead,
Bruning’s attorney also argued that Banks’s and King’s testimony was inconsistent, Szolach was
mostly a credible witness, and Bruning and his alibi witnesses were credible. The attorneys for
Bruning and Bereta barely pointed fingers at defendant. In addition, while these attorneys were
arguing that Szolach was a credible witness, the prosecutor, along with defendant’s attorney, was
arguing that Szolach was an incredible witness. The prosecutor was trying to rebut Szolach’s
testimony that Bereta and Bruning were not involved in the robbery. Thus, defense counsel
actually had the prosecutor on his side in arguing that Szolach was an incredible witness.

       For the foregoing reasons, defendant has not shown that he was entitled to severance or
separate juries because his defense was mutually exclusive or irreconcilable from the defenses of
his codefendants. Consequently, his trial attorney was not ineffective for failing to move for
severance or separate juries. “Failing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010).

       Finally, even assuming that the trial court would have granted a motion for severance,
defendant cannot show that the result of the proceeding would have been different if he had a
separate trial or jury. See Strickland, 466 US at 694. As discussed above, the arguments made
by Bereta’s and Bruning’s attorneys during their closing arguments were not particularly
prejudicial toward defendant. They asserted that Szolach was a credible witness, that the alibi
witnesses should be believed, and that the prosecutor failed to prove his case beyond a
reasonable doubt. The only mention of defendant or defendant’s attorney was made by Bereta’s
attorney, who brought up defense counsel’s conflicting argument that Szolach was an incredible
witness who should not be believed.

        The jury was instructed that it can choose to believe all, part, or none of a witness’s
testimony. Thus, the jury could have concluded that Szolach was telling the truth about Bereta
and Bruning not being part of the robbery, but lying about defendant’s involvement. It was not
necessary for the jury to “believe one defendant at the expense of the other[s].” Hana, 447 Mich
at 349 (internal quotation marks and citation omitted). Furthermore, the jurors were instructed
that the attorneys’ arguments are not evidence. Regardless of the attorneys’ arguments, the jury
would have heard Szolach’s testimony even if defendant’s trial was severed from the trial of his
codefendants. Finally, it is improbable that the jury chose to find Szolach credible because of the
brief comments made by Bereta’s attorney during his closing argument. Thus, defendant was not
prejudiced by these comments.

       The only other argument made by defendant is that if defendant had a separate trial or a
separate jury, then his jury would not have heard Bereta’s and Bruning’s alibi witnesses, which
were prejudicial to defendant. First, Bereta’s and Bruning’s alibis were not irreconcilable with
defendant’s alibi. Bereta and defendant both said they were at home, while Bruning said that he
was at a friend’s house. The jury could have acquitted all three defendants based on their alibis.
Second, the jury was instructed that it should determine the guilt or innocence of each defendant

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on an individual basis. With such an instruction, along with a proper instruction regarding
reasonable doubt, “the jury could reasonably be expected to compartmentalize the evidence
pertaining to each defendant.” Hana, 447 Mich at 356. Jurors are presumed to follow their
instructions. People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011). Thus, defendant
has not shown that he was prejudiced by the jury hearing Bereta’s and Bruning’s alibi defenses.

       Affirmed.




                                                          /s/ E. Thomas Fitzgerald
                                                          /s/ Kurtis T. Wilder
                                                          /s/ Donald S. Owens




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