               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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 9, 2019
                 Plaintiff-Appellee,

v                                                                    No. 336775
                                                                     Oakland Circuit Court
NICHOLAS COLE SINNETT,                                               LC No. 2016-259413-FC

                 Defendant-Appellant.


Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

        A jury convicted defendant of armed robbery, MCL 750.529; possession of a firearm
during the commission of a felony, MCL 750.227b; and unlawfully driving away a motor
vehicle, MCL 750.413. The trial court sentenced defendant as an habitual offender, fourth
offense, MCL 769.12, to prison terms of 25 to 60 years for the armed robbery conviction and 2
to 20 years for the unlawfully driving away a motor vehicle conviction, and to a consecutive
two-year term for the felony-firearm conviction.1 We affirm.

                                       I. BACKGROUND FACTS

        On April 18, 2016, the victim, Kara Volpe, arrived home at approximately 9:00 p.m. and
saw a black pickup truck with its lights on in the road near her house. As she exited her Jeep, the
truck sped down the road. On April 19, her husband, Joe Volpe, the vice-president of sales and
purchasing at Detroit Wheel & Tire, received a call from a number with the northern Michigan
area code of 231. The caller identified himself as “Jason” and said that he wanted to meet with
Joe that day to conduct some business. Joe declined a meeting, but asked his northern Michigan
salesperson to contact the caller. The caller thereafter sent a text message to Joe telling him not
to share his phone number with anyone.



1
    All three sentences are “consecutive to parole.”



                                                  -1-
       Later on April 19, Joe went home to do some work. The lawn care person, Greg Watts,
was working on the lawn when he saw a black Ford F-150 pickup truck drive past the house
multiple times before parking in the street. A man got out of the truck and walked up the
driveway. Around the same time, Joe’s employee at Detroit Wheel & Tire, Jason Busti, stopped
by. The man, who had an “Amanda” tattoo on his neck, inquired about lawn care and obtained a
business card from Watts. The man also inquired whether the house was for sale and asked if he
could go inside. Busti went inside and told Joe about the man’s inquiry. Busti later saw the man
walk to the F-150. Busti identified defendant in court as the man he saw at the Volpe home on
April 19.

        On the afternoon of April 20, Kara and her mother, Charlene Rivard, were cleaning
Kara’s house when defendant,2 whom Kara testified she had never seen before, came to the door
and inquired about the name of the lawn care person. Defendant was dressed in professional
attire and had a tattoo with the name “Amanda” going down his neck. Defendant said that he
had spoken to the lawn care person the day before but did not get his business card. Kara gave
defendant Watts’s phone number. Defendant then asked Kara if she was interested in selling her
house. When Kara told defendant that she had recently purchased the house, defendant told her
that he could sell the house at a price that Kara knew exceeded the appraised value of the house.
She told defendant that she would have to talk to her husband. Kara noticed defendant look
down at her ring finger, and she felt compelled to tell him that she was not wearing her rings
because she was doing spring cleaning. Defendant asked if he could look at the house, and Kara
permitted him to look around the outside only. Defendant said that his name was “Mike” and he
provided a business card with a phone number with a 480 area code. Kara went inside and called
Joe, who told her that a man had come to the house the day before and had the same inquiries.
Defendant came back to the door and asked Kara to come outside. He asked her about the
property line. At that point, Kara noticed that defendant’s worn black square-toed shoes with
stitching on the top did not match his attire. Defendant asked Kara questions about her Jeep and,
before leaving, defendant told her that “a girl like her really should be wearing her wedding
ring.” When defendant speculated that Kara’s rings were in her Jeep, Kara told him that her
rings were in the house.

         Kara put her rings on before she and Rivard went to the store. She forgot to lock the door
to the house before leaving. The two returned to the house about an hour later. Kara went to the
backyard and Rivard stayed inside the house. As she was kneeling down to tie cushions on the
patio chairs, Kara noticed a person dressed all in black, with only his forehead exposed, pointing
a gun at her. The man had white skin and had a tall and slim build like defendant. Kara was 100
percent positive that the man was wearing the same shoes that she had seen defendant wearing
earlier that day. The man screamed at Kara and threatened to kill her if she did not give him her
rings. Defendant also threatened to shoot Rivard when she went outside in response to Kara’s
screams. The man demanded the key fob for Kara’s Jeep. As he went into the garage to retrieve
the key fob, and before driving away in Kara’s Jeep, the man said, “Tell Joe not to f___ with me


2
 Defense counsel said during her opening statement that defendant admitted that he was at the
Volpe home on the afternoon of April 20.


                                                -2-
and stay out of my shit.” Kara’s wallet, which contained credit cards, a debit card, and cash, and
her cell phone were inside the Jeep. Kara placed a 911 call just before 4:00 p.m.

       Police recovered Kara’s Jeep about one-half mile from her home. A pneumatic gun and
Kara’s cellular telephone were on the passenger seat. Her wallet was missing. Surveillance
video of the parking lot of the business where police found Kara’s Jeep showed a black F-150
back into a parking spot at 3:45 p.m. on April 20. A man walked from the vicinity of the truck
and across the parking lot. At 4:02 p.m., the video showed Kara’s Jeep pull into the parking lot
and back into the parking spot next to the F-150. The driver exited the Jeep and walked toward
the F-150, which then drove off.

       The police investigation linked the 231 telephone number to defendant. A search of
defendant’s name produced a photograph of defendant. Kara identified defendant in a
photographic array as the man who had been at her house the day of the robbery. Police
subsequently arrested defendant at a house on Mulberry Street in Wyandotte. Defendant
admitted that he drove the black F-150 that was backed into the driveway at the house. A
zippered pouch containing Joe’s business card, pawn shop business cards, and real-estate-related
business cards was found during a search of the F-150. Jewelry and documents regarding
jewelry were discovered during a search of the Mulberry Street home, which belonged to
defendant’s girlfriend, Collette Morton. Morton had an Arizona driver’s license with an address
in Mesa, Arizona. The area code in Mesa is 480, which is the same area code for the phone
number that Kara received from defendant.

        Defendant provided police with information about a man named Duane Butler and said
that Butler was involved with stolen cars, wheels and tires, and credit card manufacturing
devices. He provided a tip about an address on Minock Street in Detroit and said that there
would be a green Dodge Ram, which was used as a “push vehicle,” in the driveway. 3 Police
verified that Butler was the owner of the residence. Police observed the green Dodge Ram in the
driveway. When the police ran the license plate of the vehicle, the Law Enforcement
Information Network (LEIN) system indicated that the vehicle was reported stolen. Butler, a
heavyset black man, arrived home while the police were at the residence. During a search of the
garage at the property, a stolen Dodge minivan that contained tools to remove tires and wheels,
as well as “blocks” for lifting, were found. Many of the wheels and tires found in the garage
were matched to stolen vehicles. A credit card reader and several blank Visa gift cards were
found inside the residence. Five credit cards, including three of Kara’s credit cards, were found
in a nightstand. Also found was a check for $2,000 from Detroit Wheel & Tire to Duane Butler
for payment of a purchase order. Duane Butler had been a customer of Detroit Wheel and Tire
for a year prior to the robbery. He previously had seen Kara at the business and had made a
comment to Joe about Kara’s engagement ring and asked what he paid for it. Joe told Butler that
he paid about $30,000 for the ring.

       Defendant was tried and convicted as already noted. This appeal followed.


3
 A push vehicle is used to pull up behind a vehicle that has been put into neutral and push the
car away.


                                               -3-
                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant argues that he was denied the effective assistance of counsel at trial because
(1) trial counsel deprived him of a possible defense by failing to investigate and call witnesses,
and (2) trial counsel sent rebuttal witnesses to the wrong courthouse on the final day of trial.
Thus, he claims that the trial court abused its discretion by denying his motion for a new trial.
We disagree.

                     A. STANDARD OF REVIEW & APPLICABLE LAW

        Whether a defendant was deprived of the effective assistance of counsel presents a mixed
question of fact and constitutional law. People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012). Any findings of fact are reviewed for clear error, while the legal questions are reviewed
de novo. Id. Regard should be given to the trial court’s opportunity to assess the credibility of
the witnesses who appear before it. MCR 2.613(C); see also People v Dendel, 481 Mich 114,
130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008). A trial court’s decision whether to
grant a motion for a new trial is reviewed for an abuse of discretion. People v Schrauben, 314
Mich App 181, 187; 886 NW2d 173 (2016).

         “To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003).
Defense counsel is presumed effective. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288
(2012). “Defendant must overcome a strong presumption that counsel’s performance constituted
sound trial strategy.” People v Petri, 279 Mich App 407, 411; 760 NW2d 882 (2008). A
defendant claiming ineffective assistance has the burden of establishing the factual predicate for
the claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

         “The failure to reasonably investigate a case can constitute ineffective assistance of
counsel,” but only when such failure “undermines confidence in the trial’s outcome.” People v
Anderson, 322 Mich App 622, 630-631; 912 NW2d 607 (2018). Likewise, defense counsel’s
failure to present a given defense “is only considered ineffective assistance if it deprived the
defendant of a substantial defense.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593
(2015). “A substantial defense is one that could have affected the outcome of the trial.” Id.
“Decisions regarding whether to call or question a witness are presumed to be matters of trial
strategy.” Id. “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.” People v
Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).

                                         B. ANALYSIS

       In support of his claim that trial counsel failed to investigate a possible defense,
defendant first contends that he told his trial counsel, Paulette Michel Loftin, that he and Kara
had an affair and that he could provide witnesses, specifically Madeline and Scorpio Lenoir,
Autumn Steele, Jake Hardacre, and Sandra Sinnett, to testify that they had seen him and Kara
together in late March 2016, thereby impeaching Kara’s testimony that she did not know

                                               -4-
defendant. Loftin testified at the Ginther4 hearing that defendant provided the name of just one
witness, Maria Leach, and that defendant expected her to tell the witness what her testimony
would be. Loftin subsequently learned that Leach was the sister of one of defendant’s cellmates
and, after she contacted Leach, “it was blatantly clear that she would be perjuring herself if she
was to come in and testify.” Loftin denied that defendant gave her the names of any other
witnesses. Defendant denied providing Loftin with Leach’s name and testified that it was Loftin
who brought up Leach’s name and said that she could “pay off” Leach and a sheriff to be
witnesses for defendant.

        The trial court found Loftin’s testimony credible and found defendant’s testimony about
Loftin paying off witnesses incredible. We give deference to the trial court’s credibility
determinations. Dendel, 481 Mich at 130. The court’s finding that Maria Leach was the only
name that defendant provided to Loftin and that they did not discuss any other witnesses is
supported by Loftin’s testimony and is not clearly erroneous. See id. We will not find Loftin
“ineffective for failing to pursue information that [her] client neglected to tell [her].” People v
McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005).

        There also is no clear error in the trial court’s finding that defendant failed to present
credible evidence to support the factual allegation that Loftin sent rebuttal witnesses to the wrong
courthouse because the trial court found Loftin’s testimony credible and defendant failed to
produce witnesses in support of that claim. See Dendel, 481 Mich at 130. Defendant has failed
to show that counsel’s performance fell below an objective standard of reasonableness.
Ackerman, 257 Mich App at 455. Thus, defendant’s claims of ineffective assistance of counsel
are without merit.

                         III. CONSTITUTIONAL RIGHT TO TESTIFY

        Defendant argues that the trial court failed to take sufficient steps to protect defendant’s
constitutional right to testify after defendant informed the court that a proposed prosecution
rebuttal witness who was in a holding cell with defendant the previous day told defendant,
“Don’t be a rat. I know Duane.” Because defendant did not argue in the trial court that he was
denied his constitutional right to testify on his own behalf, we review this unpreserved claim of
error for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999).

       The constitutional right to testify on one’s own behalf at a criminal trial is essential to due
process of law. People v Soloman, 220 Mich App 527, 533-537; 560 NW2d 651 (1996). A
defendant’s right to testify in his own defense arises from the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution. People v Bonilla-Machado, 489 Mich 412, 419;
803 NW2d 217 (2011). Although counsel must advise defendant of this right, the ultimate
decision whether to testify at trial remains with the defendant. Id. In People v Harris, 190 Mich
App 652, 661-662; 476 NW2d 767 (1991), this Court held that the trial court has no duty to
advise a defendant of the right to testify on one’s own behalf. Harris further held that, at trial, a


4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
court is not required to determine whether a defendant’s failure to testify was the result of a
knowing and intelligent waiver of that right. Id. If the defendant “decides not to testify or
acquiesces in his attorney’s decision that he not testify, the right will be deemed waived.”
People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985) (quotation marks and
citation omitted).

       Here, the trial court provided defendant the opportunity to consult with counsel before
making a decision whether to testify. The court then placed defendant under oath and questioned
him about the alleged threat. Defendant agreed on the record that he had sufficient time to talk
with counsel and that he was aware that he had an absolute right to testify. Indeed, on appeal
defendant does not dispute that it was his decision not to testify.

        Although defendant argues that his waiver of the right to testify was not voluntary
because of the alleged threat, and maintains that the trial court should have questioned the
rebuttal witness about the threat, defendant did not ask the court to question the rebuttal witness.
Even assuming that the trial court’s handling of defendant’s waiver of his right to testify was
erroneous, the record does not support a finding that the error affected the outcome of the trial.
The trial court, which had the ability to assess defendant’s credibility, found significant portions
of defendant’s testimony at the Ginther hearing to be incredible, and it is likely that a jury would
have similarly found defendant’s testimony incredible had he testified at trial. Thus, defendant
has failed to show any plain error affecting his substantial rights. Carines, 460 Mich at 763-764.

             IV. ADMISSION OF JAILHOUSE LETTERS AND PHONE CALLS

       Defendant next argues that the prosecutor failed to establish the proper foundation for the
authenticity of defendant’s jailhouse telephone calls and letters and that the trial court erred by
admitting the telephone calls and letters at the Ginther hearing. We disagree.

                     A. STANDARD OF REVIEW & APPLICABLE LAW

        We review for an abuse of discretion a trial court’s decision whether a proponent of
evidence sufficiently authenticated the item for admission. People v Ford, 262 Mich App 443,
460; 687 NW2d 119 (2004). MRE 901(a) provides: “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” “Factors to be
considered in making this determination include the nature of the article, the circumstances
surrounding the preservation and custody of it, and the possibility of intermeddlers tampering
with it.” People v Muhammad, 326 Mich App 40, ___; ___ NW2d ___ (2018) (Docket No.
338300) (quotation marks omitted); slip op at 8. “If, after considering such factors, the trial
judge is satisfied that in reasonable probability the article has not been changed in important
respects, he may permit its introduction in evidence.” Id. (quotation marks omitted).

                                         B. ANALYSIS

        The trial court did not abuse its discretion in finding that the telephone calls were
sufficiently authenticated. The prosecutor presented the testimony of Gary Miniard, the person
in charge of obtaining prison telephone call recordings. He testified that each prison inmate has
an account that is activated by a voice biometric system that is 99.9% effective and that the only
                                                -6-
way an inmate can make a call is by using his own voice as the password. Miniard accessed the
telephone calls recorded on defendant’s account and transferred defendant’s recorded telephone
calls onto two CDs. Miniard’s testimony was sufficient to authenticate that the calls made using
defendant’s voice-activated account were made by defendant. Thus, a witness with personal
knowledge of how the evidence was created testified that the evidence was “what its proponent
claims” as required by MRE 901(a) and MRE 901(b)(1) (testimony that a matter is what it is
claimed to be). Further, the content of the phone calls contained distinctive characteristics and
information relevant to defendant’s case. These distinctive characteristics authenticated the calls
as belonging to defendant. MRE 901(b)(4) (appearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with the circumstances); see also
Muhammad, 326 Mich App at ___; slip op at 8.

         The trial court also did not abuse its discretion in finding that the letters were sufficiently
authenticated.5 Miniard testified that in order for an inmate to get postage to send a letter, the
inmate had to include his or her name, inmate number, and prison address on the envelope and
then the envelope would be returned to the inmate. Afterword, Miniard intercepted defendant’s
letters from the mail room, copied them, and then sent them on to the addressees. He recognized
the letters offered at the hearing as those he had intercepted and copied. The envelopes had
defendant’s name, inmate number, and facility address on them. Additionally, Miniard testified
that he was familiar with defendant’s handwriting from prison visitor lists and defendant’s prison
file and that he recognized defendant’s handwriting on the letters. Thus, a witness with personal
knowledge of how the evidence was created testified that the evidence was “what its proponent
claims” as required by MRE 901(a); MRE 901(b)(1); and MRE 901(b)(2) (nonexpert opinion as
to genuineness of handwriting, based upon familiarity not acquired for purposes of the
litigation). Further, Miniard testified that the contents of the letters were “spot on” to “what was
being investigated.” The content of the letters, taken in conjunction with the circumstances,
authenticated the letters as belonging to defendant. MRE 901(b)(4); see also Muhammad, 326
Mich App at ___; slip op at 8.

                          V. DELAYED DISCLOSURE OF EVIDENCE

        Defendant also argues that the prosecutor failed to timely disclose some of defendant’s
jailhouse calls and letters prior to the Ginther hearing as required by criminal discovery rules.6
He maintains that he was prejudiced by the late disclosure of evidence that was unfavorable to
him because he was not able to obtain expert testimony that could have shown that the voice on
the calls was not his and that the letters were not written by him. Because defendant did not
challenge the trial court’s decision to admit the jailhouse telephone calls and letters at the
Ginther hearing on the ground that the prosecution did not timely disclose the evidence,
defendant did not preserve this issue. Thus, our review is for plain error affecting substantial


5
  The trial court did not consider the letters in its opinion and order denying defendant’s motion
for a new trial.
6
  Defense counsel’s e-mail request to the prosecution was for production of recorded jailhouse
telephone calls and did not include production of any written statements.


                                                  -7-
rights. Carines, 460 Mich at 763-764. The interpretation of a court rule is a question of law that
we review de novo. People v Buie, 285 Mich App 401, 416; 775 NW2d 817 (2009).

        MCR 6.201(A) provides that upon request a party must provide all other parties: (1) the
names and addresses of all lay and expert witnesses whom the party may call at trial, (2) any
written or recorded statement, including electronically recorded statements, pertaining to the case
by a lay witness whom the party may call at trial, (3) the curriculum vitae of an expert the party
may call at trial, (4) any criminal record that the party may use at trial to impeach a witness, (5)
a description or list of criminal convictions, known to the defense attorney or prosecuting
attorney, of any witness whom the party may call at trial, and (6) a description of and an
opportunity to inspect any tangible physical evidence that the party may introduce at trial.

         MCR 6.201(B) governs discovery of information known to the prosecuting attorney. As
pertinent to this case, the court rules provide that upon request, a prosecutor must provide “any
written or recorded statements, including electronically recorded statements, by a defendant,
codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness
at trial . . . .” MCR 6.201(B)(3) (emphasis added).

        MCR 6.201 expressly contemplates that discovery should be provided before trial.
Nothing in this court rule provides for post-conviction discovery in a criminal case, such as at a
Ginther hearing. In addition, defendant has not cited any authority providing that the criminal
discovery rules apply to post-conviction proceedings. Defendant has failed to demonstrate plain
error in the admission of those telephone calls admitted at the Ginther hearing because they were
not provided to defendant prior to the hearing.

                                       VI. CONCLUSION

       Affirmed.

                                                             /s/ Christopher M. Murray
                                                             /s/ Kathleen Jansen
                                                             /s/ Michael J. Riordan




                                                -8-
