                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 4, 2018
               Plaintiff-Appellee,

v                                                                   No. 340025
                                                                    Wayne Circuit Court
PHILLIP RANDALL TILLIE,                                             LC No. 16-009962-01-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                   No. 340026
                                                                    Wayne Circuit Court
PHILLIP RANDALL TILLIE,                                             LC No. 16-010054-01-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                   No. 340035
                                                                    Wayne Circuit Court
PHILLIP RANDALL TILLIE,                                             LC No. 16-010053-01-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

       Defendant was charged with a series of offenses in three different cases that were
consolidated for a jury trial. In total, the jury convicted defendant of two counts of first-degree
home invasion, MCL 750.110a(2), three counts of unlawful imprisonment, MCL 750.349b, two

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counts of felonious assault, MCL 750.82, one count of felon in possession of a firearm, MCL
750.224f, one count of aggravated stalking, MCL 750.411i, one count of domestic violence,
MCL 750.81(2), and one count of second offense possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b(1). The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to prison terms of 20 to 40 years for each home-invasion
conviction, 12 to 20 years for each unlawful imprisonment conviction, four to eight years for
each felonious assault conviction, 4 to 10 years for the felon-in-possession conviction, 93 days
for the domestic violence conviction, and five years for the felony-firearm conviction.1
Defendant appeals as of right in each case, and we affirm in each appeal.

                               I. FACTS AND PROCEEDINGS

       Defendant was charged with a series of offenses involving the following complainants:
(1) Dakyra Gaddy, who was defendant’s former girlfriend; (2) AT, the two-year-old daughter of
Gaddy and defendant; (3) Nakita Williams, who is Gaddy’s sister; and (4) LD, the one-year-old
daughter of Williams.

       In LC No. 010053-01-FH, Gaddy testified at trial that defendant visited her house on
August 31, 2016. She would not let him inside, but he kicked open the door, entered the house,
and assaulted both Gaddy and AT. Defendant allowed Gaddy to leave to attend a court
appointment, but he stayed in the home with AT. Gaddy and AT were reunited later in the day,
when Gaddy picked up AT from defendant’s workplace. Gaddy did not report this incident to
the police until November 2016. Defendant was charged with first-degree home invasion,
unlawful imprisonment, assault by strangulation, felonious assault, fourth-degree child abuse,
and domestic violence for this incident. The jury convicted defendant of the home invasion,
unlawful imprisonment, and domestic violence charges but acquitted him of the remaining
charges.

       In LC No. 0110054-01-FH, Gaddy testified that defendant repeatedly sent her threatening
text messages in September, October, and November 2016. Defendant was charged with
aggravated stalking, and the jury convicted defendant of that charge.

        In LC No. 16-009962-01-FH, Williams testified that on September 5, 2016, defendant
broke into the house where she and Gaddy were living, although Gaddy was not there. Williams
said that defendant threatened her and her daughter, LD, with a gun and prevented them from
leaving the home. Defendant was charged with first-degree home invasion, two counts of



1
  In amended judgments of sentence, the trial court clarified that in LC No. 16-009962-01-FH,
the felony-firearm sentence was to be served consecutively to the sentence for home invasion,
and the unlawful imprisonment and felonious assault sentences were also to be served
consecutively to the home invasion and felony-firearm sentences. In LC No. 16-010053-01-FH,
the home invasion sentence was to be consecutive to the sentence for unlawful imprisonment.
All other sentences were to be served concurrently with each other and concurrently with the
sentences in the other cases.


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unlawful imprisonment, two counts of felonious assault, felon in possession of a firearm, and
felony-firearm (second offense) for the September 5, 2016 incident. The jury convicted
defendant of all counts as charged.

                                   II. JURY INSTRUCTIONS

        Defendant argues that the trial court erred by failing to instruct the jury on an entry-
without-permission theory of guilt for the home invasion charges and that this error affected the
jury’s verdict in LC No. 16-010053-01-FH, because the evidence in that case relied on an entry-
without-permission theory to establish defendant’s guilt of first-degree home invasion.

        Preliminarily, we conclude that this claim of error was waived because defense counsel
expressly approved the trial court’s jury instructions. The waiver extinguished any error, leaving
no error to review. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Even if the
issue had not been waived, however, defendant would not be entitled to relief.

        Breaking and entering a dwelling, and entering a dwelling without permission, are two
alternative means of satisfying the unlawful entry element of first-degree home invasion. MCL
750.110a(2); People v Bush, 315 Mich App 237, 244; 890 NW2d 370 (2016). Defendant was
charged with both forms of first-degree home invasion in both LC No. 010053-01-FH (Gaddy’s
case) and LC No. 16-009962-01-FH (Williams’s case). The trial court gave a single instruction
on first-degree home invasion, to be applied to both cases, but omitted the entry-without-
permission theory of unlawful entry. It instead instructed the jury only on the breaking-and-
entering theory for the unlawful entry element.

        Although defendant now argues that failure to instruct the jury on the entry-without-
permission option likely confused the jury in LC No. 010053-01-FH (Gaddy’s case), the legal
distinction between breaking and entering and entering without permission was not factually
significant in Gaddy’s case. The factual basis for the home invasion charge in Gaddy’s case was
Gaddy’s testimony that she told defendant to wait outside her house, but he then kicked in the
door and entered her house. This conduct supported the unlawful entry element of first-degree
home invasion under both an entry-without-permission theory and a breaking-and-entering
theory. In this context, by finding that defendant broke and entered the dwelling, the jury
necessarily found that defendant entered without permission. There is no rational basis for
concluding that if the jury had been additionally instructed on entry without permission, it would
have been less likely to convict him of first-degree home invasion.

        Defendant attempts to support his claim of juror confusion by pointing to the fact that the
jury inquired about the possibility of considering a lesser charge for the first-degree home
invasion count in LC No. 16-010053-01-FH. Although the basis for the jury’s inquiry is not
known, there is no relationship between that inquiry and the question whether the trial court
erred by failing to instruct the jury on an alternative form of first-degree home invasion. Indeed,
if anything, the omission of the entry-without-permission alternative inured to defendant’s
benefit by reducing the available theories under which the jury could have found defendant
guilty of first-degree home invasion. Accordingly, even if this issue had not been waived,
defendant would not be entitled to relief.


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                   III. WITHDRAWAL OR SUBSTITUTION OF COUNSEL

       Defendant next argues that the trial court violated his right to counsel by denying
appointed defense counsel’s motion to withdraw and by requiring him to proceed to trial despite
a breakdown in the attorney-client relationship. A trial court’s decision regarding substitution of
counsel is reviewed for an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628
NW2d 120 (2001). “An abuse of discretion occurs when the trial court’s decision is outside the
range of principled outcomes.” People v Daniels, 311 Mich App 257, 265; 874 NW2d 732
(2015). To the extent that this issue asserts a constitutional question, review is de novo. Id.

         The federal and state constitutions grant the right to counsel in all criminal prosecutions.
US Const, Am VI; Const 1963, art 1, § 20; People v Marsack, 231 Mich App 364, 372; 586
NW2d 234 (1998). But while an indigent defendant is guaranteed the right to counsel, a
defendant is not necessarily guaranteed the attorney of his or her choice. Traylor, 245 Mich App
at 462. An indigent defendant “is not entitled to counsel of his choice nor is he entitled to
different counsel whenever and for whatever reason dissatisfaction arises with counsel provided
for him.” People v Bradley, 54 Mich App 89, 95; 220 NW2d 305 (1974). However, a defendant
is entitled to substitution of defense counsel if discharge of the first attorney is for (1) good cause
and (2) does not unreasonably disrupt the judicial process. People v Buie (On Remand), 298
Mich App 50, 67; 825 NW2d 361 (2012). “Good cause may exist when a legitimate difference
of opinion develops between a defendant and his appointed counsel as to a fundamental trial
tactic, when there is a destruction of communication and a breakdown in the attorney-client
relationship, or when counsel shows a lack of diligence or interest.” People v McFall, 309 Mich
App 377, 383; 873 NW2d 112 (2015) (quotation marks and citation omitted). “A mere
allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial
reason, does not amount to adequate cause. Likewise, a defendant’s general unhappiness with
counsel’s representation is insufficient.” Id. (citation and quotation marks omitted). “A
difference of opinion regarding “a fundamental trial tactic” could support sufficient good cause,
but disagreements over defense strategy, “including what evidence to present and what
arguments to make, are matters of trial strategy, and disagreements with regard to trial strategy
or professional judgment do not warrant appointment of substitute counsel.” People v
Strickland, 293 Mich App 393, 398; 810 NW2d 660 (2011).

        A trial court is obligated to inquire about the truth of a defendant’s allegations that there
is a dispute which has led to the destruction of communication and a breakdown in the attorney-
client relationship. People v Bass, 88 Mich App 793, 802; 279 NW2d 551 (1979). “When a
defendant asserts that his assigned lawyer is not adequate or diligent or asserts . . . that his lawyer
is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony
and state his findings and conclusions.” People v Ginther, 390 Mich 436; 441-442; 212 NW2d
922 (1973).

        In this case, defense counsel moved to withdraw on the first day of trial, alleging a
breakdown in the attorney-client relationship. The record discloses that the trial court questioned
defendant about his dissatisfaction with counsel. The dissatisfaction involved counsel’s failure
to file a witness list and file a notice of alibi, but the trial court found that defendant belatedly
informed trial counsel of potential witnesses and his claim of alibi. This finding is not clearly
erroneous because defendant made contradictory statements regarding when he told trial counsel

                                                 -4-
about the witnesses. Further, the prosecutor agreed to waive any notice objection, thereby
allowing defendant to call his witnesses. Moreover, defendant waited until the first day of trial
to express his dissatisfaction with counsel, although defendant had opposed an adjournment of
trial two months earlier. Defendant did not demonstrate any dispute regarding a fundamental
trial tactic. Defendant’s belated request for an adjournment to obtain new counsel would have
further delayed his trial, thus disrupting the judicial process.

        We also reject defendant’s argument that failure to appoint new counsel deprived him of
the effective assistance of counsel. To succeed on a claim of ineffective assistance of counsel,
defendant must show that (1) counsel’s performance did not meet an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable probability that,
but for counsel’s errors, the results of the proceeding would be different. People v Lockett, 295
Mich App 165, 187; 814 NW2d 295 (2012).

        Defendant’s claims that defense counsel was unprepared for trial are not supported by the
record.    Defense counsel’s extensive cross-examination of the prosecution’s witnesses
demonstrated his familiarity with the witnesses’ testimony and weaknesses in the prosecution’s
case. Counsel cross-examined Gaddy regarding her pending child protection case, her
aggressive conduct toward defendant, and her jealousy of defendant’s relationship with the
mother of defendant’s other child. Although defendant claims that defense counsel erred by
failing to obtain the threatening text message evidence sooner, defendant elicited Gaddy’s
testimony and the officer-in-charge’s testimony that Gaddy provided only selected screen shots,
instead of submitting her phone for objective forensic analysis. Defense counsel also elicited
testimony that the officers did not inspect Gaddy’s home to attempt to corroborate her testimony
that defendant kicked the door in. He extensively cross-examined Williams regarding her
knowledge of guns and her inconsistent descriptions of defendant’s gun. He questioned her
about the details concerning defendant tying her hands and her prior statements about those acts.
He also elicited a witness’s admission that Williams did not produce the torn blanket or sheet
that allegedly was used to bind her. Defense counsel’s performance refutes defendant’s claim
that he was prejudiced by counsel’s alleged failure to timely obtain the text message evidence
and that counsel was unprepared for trial.

         In support of his argument that defense counsel was unprepared for trial, defendant
asserts that counsel was not aware of how many cases had been consolidated or how many
peremptory challenges he had available for jury selection. Defendant relies on a discussion
between defense counsel and the trial court regarding how many peremptory challenges
defendant would be permitted to use in light of the fact that multiple cases had been consolidated
for trial. The record does not demonstrate that counsel was actually confused about the number
of consolidated cases or the number of available peremptory challenges, but instead attempted to
use the consolidations to support an argument that defendant should be awarded additional
peremptory challenges. Regardless, any alleged confusion was resolved before trial and did not
interfere with counsel’s ability to conduct voir dire. Thus, defendant has not demonstrated any
prejudice with regard to this matter.

       Defendant also argues that he was prejudiced by defense counsel’s failure to file a
witness list and failure to provide notice of an alibi defense. The trial court found that defendant
was responsible for these alleged omissions by failing to cooperate with counsel. Regardless,

                                                -5-
defendant cannot demonstrate prejudice because the prosecutor waived objection to the
presentation of defendant’s unnamed witnesses, including his alibi witness, thereby permitting
the witnesses to testify at trial.

       Consequently, defendant has failed to prove either prong necessary to show that defense
counsel provided ineffective assistance, and his claim necessarily fails.

           IV. EXCLUSION OF DEFENDANT’S MOTHER FROM COURTROOM

        Defendant next argues that the trial court erred by excluding his mother, Karen Tillie,
from the courtroom, thereby violating his right to a public trial. “Whether the circuit violated
defendant’s right to a public trial presents a question of constitutional law,” which is reviewed de
novo. People v Vaughn, 491 Mich 642, 649-650; 821 NW2d 288 (2012). But because defendant
did not object to the trial court’s exclusion of Karen from the courtroom, or otherwise argue that
the exclusion violated his right to a public trial, this issue is unpreserved. Unpreserved issues are
reviewed for plain error affecting defendant’s substantial rights. People v Pipes, 475 Mich 267,
274; 715 NW2d 290 (2006).

       The record discloses that Karen was the last defense witness to testify. At the end of her
testimony, she addressed defendant by saying “I love you, son” in the jury’s presence. After the
jury was excused, the trial court admonished Karen for making this remark in the jury’s presence
during defendant’s trial. The trial court tried to explain the necessity for her to observe court
procedure and protocols. Karen persisted in protesting in defense of her statement, despite
warnings from the court. Eventually, the trial court responded by prohibiting her from attending
the next day’s court proceeding.

       MCR 8.116(D)(1) governs access to court proceedings. It provides, in pertinent part:

       Except as otherwise provided by statute or court rule, a court may not limit access
       by the public to a court proceeding unless

              (a) a party has filed a written motion that identifies the specific interest to
       be protected, or the court sua sponte has identified a specific interest to be
       protected, and the court determines that the interest outweighs the right of access;

               (b) the denial of access is narrowly tailored to accommodate the interest to
       be protected, and there is no less restrictive means to adequately and effectively
       protect the interest; and

               (c) the court states on the record the specific reasons for the decision to
       limit access to the proceeding.

        The right to a public trial is guaranteed by the Sixth Amendment of the United States
Constitution and article I, § 20 of the Michigan Constitution. Vaughn, 491 Mich at 650. The
right to a public trial serves the goals of “(1) ensuring a fair trial, (2) reminding the prosecution
and court of their responsibility to the accused and the importance of their functions, (3)
encouraging witnesses to come forward, and (4) discouraging perjury.” Id. at 667.


                                                -6-
       In People v Kline, 197 Mich App 165, 169; 494 NW2d 756 (1992), this Court identified
the four requirements for total closure of a trial as set forth in Waller v Georgia, 467 US 39, 45;
104 S Ct 2210; 81 L Ed 2d 31 (1984):

       (1) The party seeking to close the hearing must advance an overriding interest that
       is likely to be prejudiced, (2) the closure must be no broader than necessary to
       protect that interest, (3) the trial court must consider reasonable alternatives to
       closing the proceeding, and (4) it must make findings adequate to support the
       closure.

        In Presley v Georgia, 558 US 209; 130 S Ct 721; 175 L Ed 2d 675 (2010), the
defendant’s uncle was seated in the courtroom before jury voir dire began. The court instructed
the man to leave the courtroom and leave that floor of the courthouse, but advised him that he
could return when jury selection was completed. When the defendant objected, the trial court
replied that 42 prospective jurors were about to enter the courtroom and occupy the “audience”
area of the courtroom. The trial court stated that the defendant’s uncle “cannot sit and
intermingle with members of the jury panel.” Id. at 210. On appeal, the defendant presented
evidence “that 14 prospective jurors could have fit in the jury box and the remaining 28 could
have fit entirely on one side of the courtroom, leaving adequate room for the public.” Id. at 210-
211. The Supreme Court held that the trial court violated the defendant’s right to a public trial
by failing to consider alternatives to closure. Id. at 214-215. The defendant also argued that the
trial court erred by failing to identify “any overriding interest likely to be prejudiced absent the
closure of voir dire.” The Supreme Court noted that “broad concerns” about the “generic risk of
jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident,” were
not sufficient, because these concerns are present in all criminal trials. Id. at 215. However, the
Court declined to rule on this claim of error “because even assuming, arguendo, that the trial
court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all
reasonable alternatives to closure.” Id. at 216. The Supreme Court reversed the defendant’s
convictions. Id.

        In Vaughn, 491 Mich 642, the trial court closed the courtroom to the public during jury
voir dire. The trial court did not provide a reason for the disclosure, and the defendant did not
object. Id. at 647. Our Supreme Court addressed whether the right to a public trial could be
forfeited or waived by the defendant’s failure to timely assert his right to a public trial. Id. at
653. After concluding that the defendant was required to satisfy the plain error standard of
review in regard to his unpreserved claim of constitutional error, the Supreme Court held that the
defendant had satisfied the first two prongs of this analysis, i.e., that the trial court erred by
closing the courtroom without identifying the “overriding interest that is likely to be prejudiced”
if the courtroom remained open, and that this was plain, clear, and obvious error. Id. at 665.
With respect to the third prong, the Court observed that violation of the right to public trial was a
structural error and “intrinsically harmful, without regard to [its] effect on the outcome . . . .” Id.
at 666. However, the Court emphasized that under the plain-error standard, the defendant should
be granted a new trial only if the error “resulted in the conviction of an actually innocent
defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 666-667 (quotation marks and citation omitted). The Court concluded that
the closure did not seriously affect the fairness of the proceedings because both attorneys had


                                                 -7-
conducted a “vigorous voir dire process,” and each party “expressed satisfaction with the
ultimate jury chosen.” Id. at 668.

         In United States v Sherlock, 962 F2d 1349 (CA 9, 1989), the defendants appealed their
convictions of assault with intent to commit rape on the ground that the trial court denied them
their right to a public trial when it excluded their family members from the courtroom during the
complainant’s testimony. Id. at 1353. The court reviewed the values underlying the right to a
public trial, but stated that this right “is not absolute and must give way in some cases to other
interests essential to the fair administration of justice.” Id. at 1356. These interests include the
maintenance of order in the courtroom. Id. The court stated that the temporary exclusion of the
defendants’ families during one witness’s testimony was not a “true ‘closure’ of
proceedings . . . .” Id. at 1357. Rather, the trial court properly balanced the rights of the
defendants and the protection of the victims. Id. The court concluded:

       The right to a public trial has always been interpreted as being subject to the trial
       judge’s power to keep order in the courtroom. Were this not so a public trial
       might mean no trial at all at the option of the defendant and his sympathizers.
       Trial judges must control the courtroom and provide a fair forum for the
       defendant in the search for truth. [Id. at 1357-1358 (quotation marks and citations
       omitted).]

The court also found that the scope of the partial closure “was narrowly tailored to protect [the
witness] and elicit her information” because the excluded persons were readmitted when her
testimony was complete; the jury was unaware of the limited closure order; other persons,
including members of the press, were permitted to remain; and the transcript of the trial became
a public record. Id. at 1358. The court further concluded that the trial court made factual
findings in support of the closure, and the court considered reasonable alternatives to closure. Id.
at 1358-1359.

        In United States v Perry, 375 US App DC 238; 479 F3d 885 (2007), the trial court
removed the defendant’s eight-year-old son from the courtroom based on reports that the
defendant had instructed his wife to bring the boy to court to evoke the jurors’ sympathy. Id. at
241. On appeal, the DC Circuit held that the closing was “trivial” because it did not implicate
the values served by the Sixth Amendment. Id. at 243-244. The court stated:

               Using the triviality standard, we believe the district court’s action did not
       violate the Sixth Amendment. Perry’s son was the only person excluded from the
       proceedings and an eight-year-old’s presence in the courtroom would neither
       “ensure that judge and prosecutor carry out their duties responsibly” nor
       “discourage[] perjury.” Waller, 467 US at 46; 104 SC 2210. Nor would the
       child’s attendance “encourage [a] witness[] to come forward.” Id. Perry's trial
       remained open to the public—and specifically to his wife—throughout. [Perry,
       375 US App DC at 243-244.]

       In this case, Karen’s exclusion from the courtroom before the testimony of the
prosecutor’s rebuttal witness did not implicate the goals underlying the right to a public trial.
See Vaughn, 491 Mich at 667. The court excluded Karen only because she had become

                                                -8-
disruptive. This was not a true closure of the courtroom. See Sherlock, 962 F2d at 1357.
Moreover, the removal of this one individual at this late stage in the trial did not prejudice
defendant’s right to a fair trial. The proceedings remained open to every other member of the
public. Karen’s attendance was not necessary to remind the prosecutor and the court of their
responsibilities. The only remaining witness was the prosecutor’s rebuttal witness, a police
officer, who was aware of his obligation to come forward and to testify truthfully. Accordingly,
even if Karen’s removal can be deemed a partial closure, the closure was trivial. See Perry, 375
US App DC at 243-244. This trivial closure was balanced by the trial court’s interest in
maintaining order. See Sherlock, 962 F2d at 1353. The trial court resorted to the exclusion of
Karen only after it unsuccessfully attempted to ensure that she would behave accordingly. As a
result, there was no Sixth Amendment violation.

        With respect to MCR 8.116(D), the trial court sua sponte determined that the interest of
maintaining order outweighed the right of access to a disorderly spectator. MCR 8.116(D)(1)(a).
Denying Karen access to the trial was “narrowly tailored to accommodate” that interest. MCR
8.116(D)(1)(b). The trial court explained its reasons for removing Karen, namely “to make sure
that the trial is run in a fair and efficient manner and to make sure that there is not improper
contact between the jurors and people unrelated to the case.” Thus, the court complied with the
mandates of MCR 8.116(D)(1)(c).

                                       V. SPEEDY TRIAL

        Defendant argues that the trial court violated his right to a speedy trial when it granted the
prosecution’s motion to adjourn trial to accommodate the officer-in-charge’s travel plans. “A
defendant must make a formal demand on the record to preserve a speedy trial issue for appeal.”
People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999) (quotation marks and citation
omitted). Defendant failed to make the requisite demand. Therefore, this issue is unpreserved.
“Whether defendant was denied his right to a speedy trial is an issue of constitutional law,”
which is reviewed de novo by this Court. People v Williams, 475 Mich 245, 250; 716 NW2d
208 (2006). But where an issue is unpreserved, the defendant has the burden of establishing a
plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).

        “Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial.” Williams, 475 Mich at 261, citing US Const, Am VI;
Const 1963, art 1, § 20; People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 (2013); MCL
768.1 (codifying the right to a speedy trial); MCR 6.004(A). “In determining whether a
defendant has been denied the right to a speedy trial, [courts] balance the following four factors:
(1) the length of the delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and
(4) the prejudice to the defendant.” Williams, 475 Mich at 261-262 (citation omitted); see also
Rivera, 301 Mich App at 193.

       The length of the delay does not weigh in defendant’s favor. In this case, the right to a
speedy trial attached when defendant was arrested. See Williams, 475 Mich at 261. Defendant
was tried less than eight months after his arrest, which was 2½ months after his original trial
date. We agree that the reason for the delay—to accommodate the officer-in-charge’s travel
plans—is not particularly compelling, especially given his delay in informing the prosecutor.

                                                 -9-
However, defendant failed to assert his right to a speedy trial when opposing the prosecutor’s
motion to adjourn, and a defendant’s failure to promptly assert his right to a speedy trial weighs
against his subsequent claim that he was denied the right. People v Rosengren, 159 Mich App
492, 508; 407 NW2d 391 (1987).

         The fourth factor is prejudice to the defendant. Williams, 471 Mich at 262. “When the
delay is less than 18 months, the defendant must prove that he or she suffered prejudice.”
Rivera, 301 Mich App at 193. Here, a period of less than eight months elapsed between
defendant’s arrest and trial. Defendant must therefore prove prejudice. Defendant argues that
the trial court’s grant of an adjournment in April 2017 made the court disinclined to grant a
second adjournment, for defendant’s benefit, in June 2017. However, the heart of this argument
does not implicate the right to a speedy trial because defendant’s complaint is not that the trial
was held too late, but that it was held too soon. Defendant’s argument is not persuasive because
if the trial court had denied the prosecutor’s motion for an adjournment, trial would have been
held two months earlier, yet defendant argues that he was prejudiced by having to proceed to
trial in June, when counsel allegedly was unprepared.2 Consequently, defendant fails to
demonstrate prejudice based on the delay of trial from April to June.

       After balancing the relevant considerations, we hold that defendant has failed to prove the
existence of any plain error that affected his substantial rights.

                          VI. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, but none of them has any merit.

                       A. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that both his trial attorney and appointed appellate counsel were
ineffective. Because defendant did not raise these claims in a motion for a new trial or for an
evidentiary hearing under Ginther, 390 Mich at 443, our review of defendant’s claims is limited
to errors apparent on the record. Lockett, 295 Mich App at 186.

        “Effective assistance of counsel is presumed, and the defendant bears the heavy burden of
proving otherwise.” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (quotation
marks and citation omitted). To succeed on a claim of ineffective assistance of counsel,
defendant must show that (1) counsel’s performance did not meet an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable probability that,
but for counsel’s errors, the results of the proceeding would be different. Lockett, 295 Mich App
at 187. “The test for ineffective assistance of appellate counsel is the same as that for trial
counsel.” People v Pratt, 254 Mich App 425, 430; 656 NW2d 866 (2002). “In examining
whether defense counsel’s performance fell below an objective standard of reasonableness, a


2
 As discussed previously, the record does not support defendant’s argument that defense counsel
was unprepared for trial.


                                              -10-
defendant must overcome the strong presumption that counsel’s performance was born from a
sound trial strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). “[T]his
Court will not second-guess defense counsel’s judgment on matters of trial strategy.” People v
Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). “The fact that defense counsel’s
strategy may not have worked does not constitute ineffective assistance of counsel.” People v
Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).

        Defendant first asserts that appellate counsel was ineffective for failing to raise various
claims of error and instead leaving it to defendant to raise the claims in a Standard 4 brief. We
disagree. “An appellate attorney’s failure to raise an issue may result in counsel’s performance
falling below an objective standard of reasonableness if that error is sufficiently egregious and
prejudicial.” People v Reed, 198 Mich App 639, 646; 499 NW2d 441 (1993), aff’d 449 Mich
375 (1995). “However, appellate counsel’s failure to raise every conceivable issue does not
constitute ineffective assistance of counsel.” Id. “The process of winnowing out weaker
arguments on appeal and focusing on those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.” Id. at 648 n 8. As analyzed later
in this opinion, none of the issues raised in defendant’s Standard 4 brief has any merit. Thus,
there is no basis for concluding that appellate counsel was ineffective for failing to raise these
additional issues or that counsel’s failure to raise them could have prejudiced defendant.

         Defendant also argues that trial counsel was ineffective for failing to investigate and call
four witnesses, including an alibi witness. “Decisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy . . . .” People v
Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). However, “[t]he failure to make an
adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial
court’s outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d 686 (2004). And the failure
to present certain evidence or to call a witness constitutes ineffective assistance of counsel only
if it deprives the defendant of a substantial defense. People v Dunigan, 299 Mich App 579, 589;
831 NW2d 243 (2013). A defense is substantial if it might have made a difference in the
outcome of the trial. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009).

         The extent of counsel’s investigation is not a matter of record. Although defendant
complained on the first day of trial that defense counsel failed to file a witness list or a notice of
alibi, the defense was permitted to and in fact called witnesses at trial, including an alibi witness.
Defendant does not identify any other witness who he believes should have been called, and he
does not indicate what testimony any additional witnesses could have provided if called. A
defendant bears the burden of establishing the factual predicate for his claim of ineffective
assistance. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Because defendant does not
identify any witnesses who were not called and does not identify the substance of any testimony
that could have been provided, he has not met his burden of establishing the factual predicate for
his claim of ineffective assistance of counsel. Therefore, this claim cannot be sustained.

       Defendant claims that trial counsel was ineffective for failing to impeach Williams with
inconsistencies between her trial testimony and her prior police statement and preliminary
examination testimony. He also complains that counsel failed to impeach Williams with her
prior commission of a crime involving theft or dishonesty. “The questioning of witnesses is
presumed to be a matter of trial strategy.” People v Petri, 279 Mich App 407, 413; 760 NW2d

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882 (2008); see also People v McFadden, 159 Mich App 796, 800; 407 NW2d 78 (1987). The
record does not support defendant’s assertions. On the contrary, the record discloses that defense
counsel questioned Williams in detail regarding various discrepancies between her trial
testimony and her preliminary examination testimony or signed statement to the police. That
examination included matters such as her description of defendant’s gun, whether defendant tied
her hands before or after he took her to the basement, and whether defendant untied her hands
after her sister left. Counsel further challenged Williams regarding whether she saw defendant
outside the door before he entered the flat, or whether she woke up and found defendant in front
of her. Counsel also suggested that her explanation about “leaking fluid” and going into labor
during the incident was not credible where she did not give birth until three months later. In
addition, counsel questioned Williams regarding whether she had been convicted of a crime
involving theft or dishonesty in the past 10 years, including, specifically, uttering and publishing.
On appeal, defendant does not identify any other impeachment matter that counsel failed to
pursue.

        Defendant also complains that trial counsel did not inform the trial court that he was not
prepared for trial when he moved to withdraw on the first day of trial. He further argues that the
trial court did not allow him to explain the breakdown in communication between himself and
his attorney. Again, the record does not support these claims. Defense counsel stated that he
was “prepared as I can be but I don’t think I’m prepared to go to trial,” but on further questioning
by the court explained that he was prepared to try the case, just not in the manner that defendant
wanted. Counsel’s subsequent performance established that he was indeed prepared for trial.
The trial court also allowed defendant to explain his dissatisfaction with defense counsel, but
determined that defendant failed to show good cause for substitution of counsel. In light of this
record, this ineffective-assistance claim is without merit.

                             B. PROSECUTORIAL MISCONDUCT

        To preserve a claim of prosecutorial misconduct, a defendant must contemporaneously
object and request a curative instruction. People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). Defendant raises several claims of prosecutorial misconduct but failed to object to
the alleged instances. Therefore, these claims are not preserved.

       “Allegations of prosecutorial misconduct are considered on a case-by-case basis, and the
reviewing court must consider the prosecutor’s remarks in context.” Id. at 475. “The test of
prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.” People
v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). However, “[u]npreserved claims of
prosecutorial misconduct are reviewed for plain error affecting substantial rights.” People v
Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011).

        Defendant argues that the prosecutor improperly presented evidence from a separate case
in which defendant was charged with a series of offenses arising from his arrest, including felon
in possession of a firearm, resisting arrest, felony-firearm, and carrying a concealed weapon.
Although the trial court denied the prosecutor’s motion to join this fourth case for trial along
with the other three, it ruled that the evidence of defendant’s conduct during his arrest and
evidence regarding the firearm and ammunition that were recovered from defendant at the time
of his arrest could be admitted at trial. “A finding of prosecutorial misconduct may not be based

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on a prosecutor’s good-faith effort to admit evidence.” People v Dobek, 274 Mich App 58, 76;
732 NW2d 546 (2007). Defendant does not offer any explanation for why testimony relating to
his arrest was improperly admitted, and he does not address why the prosecutor’s efforts to have
such evidence introduced, which the trial court agreed was admissible, was made in bad faith.
“An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Henry, 315 Mich App 130, 148; 889 NW2d 1 (2016).
Accordingly, defendant has not met his burden of showing plain error.

        Defendant avers that the prosecutor knowingly introduced false testimony by Williams.
The factual basis for this claim is that Williams gave inconsistent descriptions of the gun, despite
her testimony that she was a licensed gun owner and knowledgeable about guns. Defendant
states that the prosecutor withheld evidence about Williams’s inconsistent statements about the
gun. A prosecutor may not knowingly use false testimony to obtain a conviction. People v
Smith, 498 Mich 466, 475-476; 870 NW2d 299 (2015). “[A] conviction obtained through the
knowing use of perjured testimony offends a defendant’s due process protections guaranteed
under the Fourteenth Amendment.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285
(2009). A conviction must be set aside if there is any reasonable likelihood that the knowingly
false testimony could have affected the judgment of the jury. Smith, 498 Mich at 476. But
conflicts between a witness’s testimony and statements the witness gave to the police do not
constitute misconduct where there is no evidence that the prosecutor attempted to conceal the
contradictions and the defense is permitted an opportunity to impeach the witness with the
inconsistent statements. See People v Parker, 230 Mich App 677, 690; 584 NW2d 753 (1998).
In this case, defendant has not provided any evidence to factually support his claim that the
prosecutor failed to disclose evidence. Further, the record discloses that defense counsel was
aware of Williams’s prior inconsistent statements because counsel extensively cross-examined
her and a police witness regarding discrepancies between Williams’s testimony and her prior
statements. Accordingly, there is no merit to this issue.

        Defendant also claims that the prosecution violated its duty to produce exculpatory
evidence by failing to produce the body cam video of his arrest. The prosecutor is required to
disclose material evidence favorable to the defense. Brady v Maryland, 373 US 83; 83 S Ct
1194; 10 L Ed 2d 215 (1963); People v Fox (After Remand), 232 Mich App 541, 549; 591 NW2d
384 (1998). To establish a Brady violation, a defendant must show that (1) the prosecution
suppressed evidence; (2) the evidence was favorable to the accused; and (3) viewed in its totality,
the evidence was material. People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014).
However, if the government fails to preserve evidence, the exculpatory value of which is
indeterminate or only “potentially useful,” the defendant has the burden of proving that the
government acted in bad faith in failing to preserve the evidence. Arizona v Youngblood, 488 US
51, 57-58; 109 S Ct 333; 102 L Ed 2d 281 (1988); People v Johnson, 197 Mich App 362, 365;
494 NW2d 873 (1992). In this case, defendant has not provided any proof that body cam videos
actually existed, and in fact one witness expressly testified that the body camera was not working
when defendant was arrested. Therefore, this claim of prosecutorial misconduct is also without
merit.

      In sum, the record does not support defendant’s multiple claims of prosecutorial
misconduct.
                                               -13-
                          C. DEFENDANT’S REMAINING ISSUES

       Defendant’s remaining claims of error require only brief attention because they are not
supported by the record. Specifically, there is no record support for defendant’s claim that jurors
communicated with complainant Nikita Williams during a lunch break. The only record instance
of contact between a witness and the jurors occurred at the end of the first day of trial, when
defendant informed the trial court that Williams stood near the door as jurors exited, and smiled
and nodded at them. However, defense counsel informed the court that he was not requesting
any remedy for this apparently innocuous and isolated incident. Accordingly, we reject
defendant’s claim that he was denied a fair trial because of juror misconduct.

       Defendant also claims that he was denied his right to a speedy trial. For the reasons
discussed earlier, there is no merit to defendant’s reiterated claim.

        We also reject defendant’s claim that trial counsel was ineffective for failing to inform
defendant that the prosecutor had made a more favorable plea offer than an offer that defendant
rejected earlier. Although the record discloses that the prosecutor contemplated making a more
favorable plea offer, there is no evidence that a more favorable plea offer ever was made.
Defendant has failed to establish the factual predicate for this claim. Hoag, 460 Mich at 6.

        Defendant also argues that the trial court pierced the veil of judicial impartiality by
stating in the jury’s presence that a gun shown to the jury had to be the gun that defendant used
in the offense against Williams. To preserve a claim of judicial misconduct, a defendant must
object to the trial court’s conduct on that basis at trial. People v Sardy, 216 Mich App 111, 117-
118; 549 NW2d 23 (1996). Defendant failed to object to the trial court’s conduct, leaving this
issue unpreserved. We review unpreserved issues for plain error affecting substantial rights.
Carines, 460 Mich at 763-764. Defendant fails to provide a citation to the record in support of
this claim, and we have not found the alleged statement in our review of the record. The record
does disclose that during a discussion between the court and the attorneys outside the presence of
the jury, the court remarked, “My thought was that she testified to a revolver and a revolver was
found in the backpack that he was caught with.” However, because this statement was made
outside the jury’s presence, it could not have pierced the veil of judicial impartiality. People v
Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015).

       Affirmed.

                                                            /s/ Colleen A. O'Brien
                                                            /s/ Jonathan Tukel
                                                            /s/ Anica Letica




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