                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 10, 2016
               Plaintiff-Appellee,

v                                                                  No. 328874
                                                                   Wayne Circuit Court
DEMOND STEELE,                                                     LC No. 15-000748-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and SAAD and METER, JJ.

PER CURIAM.

        Defendant appeals as of right his jury-trial convictions of two counts of assault with
intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; felon in possession of
a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony
(felony-firearm), second offense, MCL 750.227b. The trial court sentenced defendant, as third-
offense habitual offender, MCL 769.11, to 100 months to 20 years’ imprisonment for each of the
two convictions of AWIGBH, 3 to 10 years’ imprisonment for the felon-in-possession
conviction, and five years’ imprisonment for the felony-firearm conviction. We affirm.

        This case involves a shooting that occurred on Pingree Street in Detroit. On July 4, 2014,
defendant, Chike Kelley, Che Daniels, and Eric Garland were all at Kelley’s rental property on
Pingree Street. There was a physical altercation between Kelley and defendant. Daniels got
between them to prevent them from fighting. Testimony indicated that defendant pulled out a
silver revolver and shot Daniels three times, including in the head, shot Kelley in the shoulder
once, and then shot at Garland, who was located in the adjoining dining room.

       Defendant argues that he was deprived of the effective assistance of counsel when his
defense attorney did not request an adjournment or seek assistance to find defendant’s father,
Demond Steele, Sr. (hereinafter “Steele”), who went missing the day he was scheduled to testify.
We disagree.




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        Defendant failed to preserve the issue of ineffective assistance of counsel for appeal
because he did not bring a timely motion for a new trial or move for a Ginther1 hearing in the
lower court. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Whether a person
has been denied the effective assistance of counsel is a mixed question of law and fact. People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). A trial court’s factual findings, if any,
are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from
an ineffective-assistance-of-counsel claim de novo. See id. This Court reviews an unpreserved
claim of ineffective assistance of counsel for errors apparent on the record. People v Lopez, 305
Mich App 686, 693; 854 NW2d 205 (2014).

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). Counsel’s
performance is deficient when it falls below an objective standard of reasonableness under
prevailing professional norms. Id. A defendant is prejudiced if there is a reasonable probability
that, “but for defense counsel’s errors, the result of the proceeding would have been different.”
People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). “Effective assistance of counsel
is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). Additionally, a defendant must
overcome the presumption that the challenged action was sound trial strategy. People v
Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). The burden on a defendant to overcome
the presumption is heavy, and, “[i]n general, the failure to call a witness can constitute
ineffective assistance of counsel only when it deprives the defendant of a substantial defense.”
People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (quotation marks and citation
omitted). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (quotation marks and
citation omitted). “Trial counsel is responsible for preparing investigating, and presenting all
substantial defenses.” Id.

        The record indicates that defense counsel did not plan to call Steele until the third day of
trial, when counsel informed the trial court that she intended to amend her witness list to include
Steele. Defense counsel said that Steele would provide testimony that would attack Kelley’s
credibility. The trial court allowed defense counsel to amend the witness list to include Steele.

        On the fourth day of trial, Steele spoke with defense counsel off the record and claimed
that he wanted to confess to the shooting. Defense counsel informed Steele that he would need
to be appointed an attorney if he was going to confess to the crime. An attorney, Jeffrey
Schwartz, appeared on the record to inform the trial court that he was there to represent Steele.
He stated that he had been unable to locate Steele even after speaking with Steele’s family
members. On the record, the trial court released Schwartz, but asked that he try to look for
Steele one last time and to inform the court if he was found.



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -2-
       Defense counsel then proceeded to inform the trial court what Steele’s expected
testimony would be. Defense counsel stated:

               I did have a number of conversations with [Steele], starting last I want to
       say Friday, I believe. This trial started on Thursday. He first contacted me on
       Friday. He had indicated a willingness to testify. He was going to testify about a
       phone conversation that he had with one of the complainants in this matter, a
       phone conversation at the hospital. He, also, indicated to me that a number of
       different sort of versions of events that occurred that day [sic].

               Today I was advised by -- that he was going to testify that, in fact, he was
       at the residence on Pingree that day and that he was the shooter. When I spoke
       with him he was-- At that point we went and spoke with you. The [c]ourt
       indicated that-- I felt he needed to talk to a lawyer. If he was going to testify in
       that manner for sure he needed a lawyer before he incriminated himself. And I
       came in to talk to you about getting a lawyer appointed for him and the [c]ourt did
       that, and now it appears that he is not here any longer.

             So I honestly don’t know what his testimony would be. I really don’t
       know. But he’s gone.

       The trial court explained that the date and time for trial had been set and ordered the trial
to continue. Defense counsel rested. Before closing arguments, the trial court asked defense
counsel one last time if she had made contact with Steele, but defense counsel said that she had
not seen him. The trial court then stated, “[Steele] has not contacted any of my staff or made any
presence known. So I just want the record reflecting with regard to that.” There was no other
mention of Steele, and the trial concluded with a verdict on the fifth day.

       Defendant argues that the failure to seek an adjournment or assistance in locating Steele
when he could not be found constituted performance that fell below an objective standard of
reasonableness because without Steele’s testimony, defendant did not have a strong defense and
his case “more or less depended entirely on attacking the credibility of the witnesses the
prosecution brought forth.”

        Defendant has not shown that defense counsel’s inaction was unreasonable because there
is no indication that Steele would have been available to testify at a later time. Defendant relies
on People v Tommolino, 187 Mich App 14, 18; 466 NW2d 315 (1991), where an attorney’s
failure to seek an adjournment to procure two alibi witnesses was deemed not objectively
reasonable and considered “unsound strategy.” However, the instant case is unlike Tommolino,
because this Court, in Tommolino, acknowledged that the two alibi witnesses could have been
subpoenaed to testify. Id. Here, Steele’s latest iteration of his probable testimony was that he
had been the shooter, but defense counsel could not subpoena Steele and require him to either
confess to the crime or invoke his Fifth Amendment right. The Michigan Supreme Court has
held that an attorney cannot compel a witness to appear before a jury knowing the witness will




                                                -3-
claim his Fifth Amendment privilege against self-incrimination. People v Dyer, 425 Mich 572,
576-579; 390 NW2d 645 (1986).2 Defendant cannot show that defense counsel’s inaction fell
below an objective standard of reasonableness

        In addition, defendant has failed to show that counsel’s inaction resulted in prejudice.
Defendant argues that defense counsel’s failure to seek an adjournment was prejudicial because
the outcome would have been different had Steele confessed to the shooting. However, nothing
in the record shows that Steele would have ever been available, and even if he was, that he would
have actually waived his Fifth Amendment right and confessed to the shooting.

         In Tommolino, 187 Mich App at 19-20, this Court concluded that the defendant had not
been prejudiced when his defense counsel failed to request an adjournment. There, the defendant
had testified that one of the alibi witnesses was his ex-fiancée and she “indicated a willingness”
to testify. Id. at 20. However, the Court emphasized that no evidence was presented that showed
that the alibi witness would have testified as the defendant claimed. Id. Here, while defense
counsel said Steele had indicated a willingness to testify and confess, she was not sure if Steele
would have actually done so. She said, “I honestly don’t know what [Steele’s] testimony would
be. I really don’t know. But he’s gone.” Steele never signed an affidavit confessing to the
crime, never went on the record claiming he would testify, and never appeared in court to waive
his Fifth Amendment right.

        Also, there is no indication that the trial court would have granted an adjournment or
assistance (which, necessarily, would have required an adjournment, given the timing of events).
Indeed, there was a high likelihood that the trial court would have denied the request,
considering that Steele inexplicably went missing from the courthouse3 on the fourth day of a
five-day trial, the case was ready for closing arguments, and the trial court had once previously
adjourned the date set for trial. Defendant cannot show the requisite prejudice.

          Affirmed.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Henry William Saad
                                                            /s/ Patrick M. Meter




2
  The fact that Steele could not be found on the day he was scheduled to testify supports the
proposition that trial counsel had reason to believe Steele would likely invoke his Fifth
Amendment right if subpoenaed.
3
    He had been there earlier and departed.


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