                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 23, 2015
               Plaintiff-Appellee,

v                                                                  No. 320998
                                                                   Wayne Circuit Court
THOMAS PATRICK DOUGHTERY,                                          LC No. 13-020467-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of assault with intent to do great
bodily harm less than murder, MCL 750.84. Defendant was sentenced to three years of
probation for his conviction. For the reasons set forth in this opinion, we affirm the conviction
and sentence of defendant.

        This appeal arises out of an altercation which occurred between defendant and Richard
Shuler at North Ridge Church (“the church”) in Plymouth Township. Shuler was in his vehicle
in the church parking lot waiting to pick up his daughter after a church service. As Shuler waited
in the line of cars near the entrance of the church to pick up his daughter, defendant backed his
vehicle out of a handicapped parking space and “bumped” into Shuler’s right tire. Shuler and
defendant got out of their respective vehicles and looked at Shuler’s tire. According to Shuler,
“No damage was done. Nobody was hurt.” Defendant wanted to exchange information, but
Shuler “didn’t see any reason for that” because there was no damage and nobody was injured.
Defendant became upset and began “hollering” that Shuler had to wait for the police to arrive.

       According to witness testimony, Shuler got back into his vehicle, drove around the
vehicles that were in line, and parked his vehicle next to the church door. Defendant also got in
his vehicle and “pulled up” behind Shuler. Defendant got out of his car, approached Shuler’s
vehicle, and began “hollering” and “screaming” at him. As a result, Shuler testified that he
drove to the “farthest spot in the parking lot” so he could make a phone call. As he was trying to
make a phone call, defendant “pulled up” behind him again. Shuler looked in his rear view
mirror and saw defendant standing outside of defendant’s car, reaching into the backseat.

       At that point, according to Shuler, he got out of his vehicle, walked to defendant’s
vehicle, and “held the [rear driver’s side] door” to keep “it from coming open” as defendant was
reaching in the backseat, he pushed the door and Shuler fell backward. Defendant then grabbed
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a metal cane1 from the back seat and began swinging the cane at Shuler. Defendant hit Shuler’s
leg, causing him to fall down. After he fell to the ground, defendant hit him with the cane in the
leg again. While on the ground, Shuler was trying to protect his head with his arms. Defendant
swung the cane again, and the cane “bounced off” Shuler’s arm and “broke two ribs.” Defendant
beat him with the cane five or six more times on his arms and back.

        Defendant claimed that he beat Shuler with his cane in self-defense. According to
defendant, as he was reaching for his pad of paper and pen from the backseat of his car, Shuler
“slammed” the car door against the side of defendant’s head and his head was “pinned” between
the door and the “metal seal” of the car. Defendant testified he thought he “was gonna die.”
According to defendant’s testimony, he tried to “back out” but Shuler pushed the door against
defendant’s head even harder. Shuler then pushed his hand behind defendant’s neck and pushed
defendant’s head down. Because defendant was fearful, he took his cane and “swished it back
and hit [Shuler’s] leg.” Defendant continued to struggle to free himself and continued to swing
his cane. The third time defendant hit Shuler with his cane, he “backed out” and the car door
opened. Shuler fell on the ground and said, “I give up. I give up.” At that point, defendant
stopped hitting Shuler.

        While the trial was proceeding, it was brought to the attention of the trial court that a
person who had been watching the trial was associated with one of the jurors. The trial court
questioned the individual and told them not discuss anything they had heard with the juror. The
trial court then asked of the person, “Lips are sealed, right?” The person responded: “Right.”

        Additionally, during trial, defendant sought to admit expert psychiatric testimony from
Dr. Warwick David Armstrong to discuss defendant’s mental state at the time of the incident.
The proffered testimony would establish that defendant has post-traumatic stress disorder which
“could potentially cause [defendant] to react differently or maybe a little faster than a normal
person.” Defendant claimed Armstrong’s testimony would help explain defendant’s theory of
self-defense. The prosecution objected to the introduction of the testimony on the grounds that
the testimony was not relevant and that a psychiatrist may not render an opinion regarding
whether an individual defendant suffers from a syndrome or if he acted pursuant to that
syndrome.

          After hearing arguments for both parties, the trial court ruled, in part:

          But I, I will not let a psychiatrist come in and tell us what his intent was or tell us
          that he has some kind of post traumatic stress syndrome because it has no bearing.
          That has no bearing on whether or not he committed the crime that he’s charged
          with, or whether or not he had the requisite intent. So, so that’s why I indicated
          that I would not allow the psychiatrist.




1
    Defendant uses a cane to walk as a result of multiple knee surgeries.




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       Defendant was convicted and sentenced as stated above. This appeal then ensued.

         On appeal, defendant first contends that he was denied his right to present a defense when
the trial court excluded testimony from Dr. Armstrong. To preserve the issue that defendant was
denied the right to present a defense, “a party must object below and specify the same ground for
objection that it argues on appeal.” People v Bosca, __ Mich App __, __; __ NW2d __ (2015);
slip op at 21, citing People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Defendant
failed to object to the trial court’s decision to exclude Armstrong’s testimony on the ground that
it would violate defendant’s right to present a defense. Therefore, the issue is not preserved.
This Court reviews unpreserved issues for plain error affecting a defendant’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order for defendant to establish
plain error, he must show that (1) an error occurred, (2) the error was plain, clear or obvious, (3)
and the plain error affected substantial rights. Id. The third prong requires a showing of
prejudice. Id.

        As previously stated, defendant sought to admit expert psychiatric testimony from
Armstrong to discuss defendant’s mental state at the time of the incident and to discuss that
defendant has post-traumatic stress disorder which “could potentially cause [defendant] to react
differently or maybe a little faster than a normal person.” Defendant claimed Armstrong’s
testimony would help explain defendant’s theory of self-defense. The trial court denied
introduction of the testimony for the reasons stated above. We find no error in the trial court’s
ruling.

        The Sixth Amendment of the United States Constitution provides that a criminal
defendant has the right “to have compulsory process for obtaining witnesses in his favor.”
People v Kowalski, 492 Mich 106, 139; 821 NW2d 14 (2012). This right has been incorporated
to the states through the Fourteenth Amendment. Kowalski, 492 Mich at 139, citing Washington
v Texas, 388 US 14, 18; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). “The right to offer the
testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to
present a defense.” Kowalski, 492 Mich at 139, quoting Washington, 388 US at 19. However,
the right to present a defense is not an absolute right and a defendant must still comply with
“established rules of procedure and evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence.” Kowalski, 492 Mich at 139, quoting People v Hayes,
421 Mich 271, 279; 364 NW2d 635 (1984).

        “‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. This Court, in People v Orlewicz, 293 Mich App
96, 102; 809 NW2d 194 (2011), was required to determine if psychiatric testimony was relevant
to a defendant’s claim of self-defense. In Orlewicz, the defendant was convicted of first-degree
premeditated murder, first-degree felony murder, and mutilation of a dead body. Id. at 99. The
prosecution’s theory of the case was that the “defendant did not like the victim,” was upset that
the victim refused to repay a debt to the defendant, and that the defendant devised a plan to
commit the “perfect crime” of killing the victim by leaving no evidence. Id. The defendant
contended that he was coerced into involvement in a robbery scheme devised by the victim and
that when the plan failed, the victim threatened the defendant’s life. Id. Defendant claimed that,


                                                -3-
upon being threatened, he killed the victim in self-defense. Id. The jury ultimately found the
prosecution’s case more credible. Id.

        On appeal, Orlewicz argued that he was denied his right to present a defense because the
trial court excluded psychiatric testimony that the defendant argued was relevant to his self-
defense claim. Id. at 101. The Orlewicz Court noted that self-defense requires an honest and
reasonable belief of imminent death or harm. Id. at 102, citing MCL 780.972. The Orlewicz
Court also recognized that “a defendant’s psychological idiosyncrasies may, at least in theory, be
relevant to the reasonableness of the defendant’s belief that he or she was in danger.” Id.
However, this Court concluded that the proffered psychiatric evidence was not relevant because
the case “featured two starkly contrasting, and largely incompatible narratives of what factually
transpired before the killing.” Id. Under the prosecution’s theory, “there was no possible way
defendant could have been legitimately defending himself,” and under the defendant’s version of
events, there was “absolutely no leap of logic of faith required to conclude that it is objectively
reasonable to fear for one’s life” when the victim was pointing a gun at the defendant and
threatening to shoot him. Id. at 102-103. The Orlewicz Court held that because the defendant’s
self-defense claim depended purely on which of the two factual scenarios actually happened, the
psychiatric testimony would only have been relevant if it had some bearing on which scenario
occurred. Id. at 103. Ultimately, the psychiatric testimony the defendant sought to admit was
not relevant as it “would have cast no light whatsoever on which of the two versions of events
was the more likely.” Id.

        Similar to Orlewicz, this case features two contrasting and incompatible narratives of
what factually transpired before the assault. The prosecution’s theory was that defendant
attacked Shuler while he tried to detain defendant in his car by holding the rear driver’s side door
shut. Defendant’s theory was that Shuler “slammed” the car door on his head, which prompted
defendant to hit Shuler with his cane because he was fearful for his life. Under the prosecution’s
theory, there was no possible way defendant could have been legitimately defending himself, and
under the defendant’s theory, there was “absolutely no leap of logic of faith” required to
conclude that it is objectively reasonable to fear harm when Shuler “slammed” the car door on
defendant’s head. Id. Similar to Orlewicz, defendant’s self-defense claim depended entirely on
which of the two factual scenarios actually happened. Armstrong’s testimony that defendant
suffered from post-traumatic stress syndrome and that the syndrome “could potentially cause
[defendant] to react differently or maybe a little faster than a normal person” “would have cast
no light whatsoever on which of the two versions of events was the more likely.” Orlewicz, 293
Mich App at 103. Therefore, the trial court did not err in concluding that the psychiatric
testimony of Armstrong was not relevant pursuant to MRE 401 and Orlewicz.

       Additionally, in People v Wilson, 194 Mich App 599, 605; 487 NW2d 822 (1992), this
Court held that “an expert is qualified only to render an opinion regarding the ‘syndrome’ and
symptoms that manifest from it, not whether the individual defendant suffers from the syndrome
or acted pursuant to it.” Because Armstrong’s testimony that the syndrome “could potentially
cause [defendant] to react differently or maybe a little faster than a normal person” would be an
opinion regarding whether defendant suffered from post-traumatic stress syndrome and if he
acted pursuant to it, the trial court properly excluded the evidence. Because the right to present a
defense is not an absolute right, and a defendant must still comply with “established rules of
procedure and evidence designed to assure both fairness and reliability in the ascertainment of

                                                -4-
guilt and innocence,” Kowalski, 492 Mich at 139, quoting Hayes, 421 Mich at 279, defendant
was not denied the right to present a defense. Therefore, defendant is not entitled to relief on this
issue.

        Defendant next asserts that the trial court erred by not exhausting every possible effort to
protect his right to an impartial jury. “For an issue to be preserved for appellate review, it must
be raised, addressed, and decided by the lower court.” People v Metamora Water Serv, 276
Mich App 376, 382; 741 NW2d 61 (2007). Defense counsel did not raise the issue that the trial
court’s actions were insufficient at trial. Thus, the issue is not preserved. This Court reviews
unpreserved issues for plain error affecting defendant’s substantial rights. Carines, 460 Mich at
763.

       As previously stated, the trial court discovered that an individual seated in the courtroom
during the trial was associated with one of the jurors. After the parties and the trial court had a
discussion on the record, outside the presence of the jury, the following conversation took place:

               THE COURT: We have a young man in the courtroom.

                       Are you with one of the jurors?

               PERSON IN THE GALLERY: Yes.

               THE COURT: Okay. Well, that’s great. I mean I -- but you have had an
       opportunity to overhear some conversations outside the presence of the jury
       which the jury cannot hear. And I just -- I probably don’t need to tell you this, but
       just in case, please do not reveal the contents of anything that you’ve just heard
       here to the juror that you’re connected with. I’m not -- at least until there’s a
       verdict.

               And I’m not sure that you would even have a chance to talk to her before
       the verdict comes out anyway. But just in case, okay.

               PERSON IN THE GALLERY: Okay.

               THE COURT: So just lips sealed, right?

               PERSON IN THE GALLERY: Right.

               THE COURT: Okay. All right.

                       We ready for the jury now?

               [DEFENSE ATTORNEY JOHNSON]: Yes

               [DEFENSE ATTORNEY CURRY]: Yes.

       MCR 2.513(B) provides, in relevant part:



                                                -5-
       The trial court must control the proceedings during trial, limit the evidence and
       arguments to relevant and proper matters, and take appropriate steps to ensure that
       the jurors will not be exposed to information or influences that might affect their
       ability to render an impartial verdict on the evidence presented in court.

To interpret a court rule, “we apply the same rules as when we engage in statutory
interpretation.” People v Buie, 285 Mich App 401, 416; 775 NW2d 817 (2009). The
overarching goal of rule interpretation “is to give effect to the intent of the authors.” Id. To
begin interpreting a court rule, the first step is to consider the language of the rule. Id. “If the
language of the court rule is clear and unambiguous, then no further interpretation is required or
allowed.” Id.

        Defendant contends that the trial court’s action was insufficient because it did not exhaust
“every effort to protect” the jurors from being exposed to information that might affect their
ability to render an impartial verdict. However, as the plain language of MCR 2.513(B)
provides, the trial court is required to “take appropriate steps to ensure that the jurors will not be
exposed to information or influences that might affect their ability to render an impartial
verdict.” (Emphasis added.) After having a discussion outside the presence of the jury, the trial
court instructed the person in the gallery “not [to] reveal the contents of anything that” he just
heard to the juror he was associated with. The record indicates that the person in the gallery
understood the trial court’s instructions and further agreed that he would keep his “lips sealed.”
Moreover, the trial court had previously instructed the jury not to discuss the case with family,
friends, or others on three separate occasions, and jurors are presumed to follow instructions.
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Thus, the trial court took
appropriate steps to ensure that the jurors were not exposed to information or influences that
might have affected their ability to render an impartial verdict. Further, there was no evidence
presented that the person in the courtroom communicated with the juror. While defendant claims
on appeal that communication between the two could have easily happened through social
media, there is no evidence for us to conclude that there was any communication between the
person in the courtroom and any juror. In the absence of any evidence of improper
communications to a juror, and because the trial court met its obligation under the court rule to
“take appropriate steps,” to ensure that the jurors will not be exposed to information or
influences that might affect their ability to render an impartial verdict MCR 2.513(B), no error
occurred. Defendant is not entitled to relief on this issue.

        Defendant next argues he was denied the effective assistance of counsel when his trial
counsel failed to present expert testimony interpreting defendant’s medical records. Specifically,
defendant argues that an expert would have testified that defendant underwent a cervical fusion
of the C-1 and C-2 levels on his spine and this information would have shown defendant’s state
of mind at the time of his interaction with Shuler. According to defendant, having a medical
expert interpret the medical records would have been important to any determination that
defendant believed he faced serious bodily harm when Shuler pinned the car door on defendant.
Hence, defendant argues that he was prejudiced by this error because defendant’s testimony was
meaningless without the expert explaining the seriousness of defendant’s physical injuries to his
neck. Defendant also argues that he was denied the effective assistance of counsel when counsel
failed to object to the trial court’s insufficient actions taken to protect defendant’s right to a trial
by jury.

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        The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; People v Trakhtenberg, 493
Mich 38, 51; 826 NW2d 136 (2012). To establish ineffective assistance of counsel, the
defendant must show that “(1) defense counsel’s performance was so deficient that it fell below
an objective standard of reasonableness and (2) there is a reasonable probability that defense
counsel’s deficient performance prejudiced the defendant.” People v Heft, 299 Mich App 69,
80-81; 829 NW2d 266 (2012). A defendant is prejudiced if, but for defense counsel’s errors, the
result of the proceeding would have been different. Id. at 81. Effective assistance of counsel is
presumed, and a defendant bears a heavy burden of proving otherwise. People v Eisen, 296
Mich App 326, 329; 820 NW2d 229 (2012), citing People v Solmonson, 261 Mich App 657, 663;
683 NW2d 761 (2004). Counsel is not required to raise meritless or futile objections. Eisen, 296
Mich App at 329, citing People v Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004).
Because the defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his
claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

        We first address defendant’s contention that trial counsel rendered ineffective assistance
by failing to present testimony from an expert witness to interpret defendant’s medical reports.
We begin our resolution of this issue by noting that decisions regarding whether to call or
question a witness are presumed to be matters of trial strategy. People v Russell, 297 Mich App
707, 716; 825 NW2d 623 (2012), citing People v Rockey, 237 Mich App 74, 76-77; 601 NW2d
887 (1999). Counsel has wide discretion as to matters of trial strategy. Heft, 299 Mich App at
83. To assert that trial counsel was ineffective for failing to call an expert witness, a defendant
must offer proof that the expert witness would have testified favorably if called by the defense.
People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003).

        First, and contrary to defendant’s assertions, there were no medical records indicating the
type of cervical fusion alleged by defendant on appeal. Rather, the record reveals that the trial
court reviewed the medical records and inquired as to where the records regarding cervical
fusion were located. Even when such records were not produced, the trial court allowed
defendant’s medical records into evidence; however, trial counsel chose not to introduce them.
On appeal, defendant does not argue that trial counsel was ineffective for failure to introduce the
medical records. Rather, defendant argues that trial counsel was ineffective for not providing an
expert to testify as to what the medical records revealed about the basis for the fear defendant
argued he had for his safety. If the basis of defendant’s argument is that trial counsel was
ineffective for failing to call a witness to describe evidence which was never offered, we find this
argument devoid of legal merit. Additionally, we note the lack of any record evidence as to what
an expert would have testified to or if an expert would have testified favorably for defendant.
Just as there was no record evidence as to what an expert would have stated, defendant failed to
provide this Court with an affidavit explaining what an expert would have testified to regarding
either the nature or extent of defendant’s injuries. Our Supreme Court has stated that “ . . . it is
important to note that defendant has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Quoting, People v Ginther, 390 Mich. 436 at 442-43, 212 N.W.2d 922, our Supreme Court went
on to state:



                                                -7-
       “A convicted person who attacks the adequacy of the representation he received at
       his trial must prove his claim. To the extent his claim depends on facts not of
       record, it is incumbent on him to make a testimonial record at the trial court level
       in connection with a motion for a new trial which evidentially supports his claim
       and which excludes hypotheses consistent with the view that his trial lawyer
       represented him adequately. Id.

       Absent any evidence regarding an expert’s opinion, especially with respect to the nature
and extent of defendant’s claimed injuries, we conclude that defendant failed to establish the
necessary factual predicate of this part of his ineffective assistance of counsel claim. See,
Carbin, 463 Mich at 600, quoting Hoag, 463 Mich at 6-7.

        Even presuming that defendant produced a qualified medical expert who would testify in
strict accord with defendant’s arguments on appeal, defendant cannot establish that he was
prejudiced by the failure of trial counsel to produce an expert because this case was a contest of
two completely different and competing narratives. The victim testified that defendant engaged
in a premeditated attack, whereas defendant testified that the victim was going to kill defendant
by crushing defendant’s head in the car door. Against this backdrop of competing narratives, we
can find no scenario whereby insertion of defendant’s purported expert witness affects the
outcome of these proceedings. Thus, even presuming that trial counsel’s failure to procure an
expert witness fell below a standard of reasonableness, defendant cannot establish that but for
trial counsel’s error, the result of the proceedings would have been different. Heft, 299 Mich
App at 81.

        Defendant also argues that trial counsel was ineffective for failing to object to the trial
court’s alleged deficiency in dealing with the situation when it was discovered that the person in
the gallery was associated with one of the jurors. As discussed previously, the trial court took
appropriate steps to ensure that the jurors would not be exposed to information or influences that
might affect their ability to render an impartial verdict on the evidence presented in court. MCR
2.513(B). Any objection would have been meritless. Because counsel is not required to raise
meritless or futile objections, Eisen, 296 Mich App at 329, citing Moorer, 262 Mich App at 76,
counsel’s performance did not fall below an objective standard of reasonableness in this regard.

       Affirmed.




                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Stephen L. Borrello
                                                            /s/ Michael F. Gadola




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