            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 31, 2019
              Plaintiff-Appellee,

v                                                                 No. 344115
                                                                  Ingham Circuit Court
DEVANTE CORTEZ GADDIS,                                            LC No. 17-000187-FC

              Defendant-Appellant.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Defendant, Devante Cortez Gaddis, appeals by right his jury trial convictions of assault
with intent to murder, MCL 750.83, intentional discharge of a firearm at a dwelling or an
occupied structure, causing injury, MCL 750.234b(3), felon in possession of a firearm (felon-in-
possession), MCL 750.224f(1), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b(1). Defendant was sentenced as a third-offense habitual
offender, MCL 769.12, to serve prison terms of 200 to 562 months for assault with intent to
murder; 5 to 30 years for intentional discharge of a firearm at a dwelling or an occupied
structure; 5 to 10 years for felon-in-possession; and 2 consecutive years for felony-firearm. We
affirm.

                                      I. BASIC FACTS

        On the evening of January 22, 2017, Jacquay Jones and his girlfriend, Jacquelyn Zalesak,
were inside their apartment with their child when defendant knocked on the door. Jones looked
through the peephole and saw a person wearing a hoodie standing to the right of the door. Jones
opened the door and said, “What’s up?” The person opened fire. Jones shut the door and lay on
the floor of his apartment to avoid the bullets. Jones was shot once in the chest and another
bullet grazed him on the left shoulder. Jones later identified defendant as the shooter in a
photographic lineup. Jones testified at trial that he recognized the shooter as defendant from
earlier that day at a basketball court. Evidence was presented at trial that defendant shared no
relationship with Jones, but that defendant did have a relationship with one “Brown,” who lived
across the hallway from Jones’s apartment.



                                              -1-
        Two days later, defendant was arrested following a traffic stop where police recovered
the following items: two Glock 9-millimeter handguns with extended magazines, 14 9-millimeter
Winchester rounds, a box of .40-caliber ammunition with 10 rounds missing, a .40-caliber Glock
magazine, and a receipt showing the purchase of the Winchester ammunition, paid in cash. The
two Glock handguns were loaded with live rounds.

       During trial, defense counsel challenged the veracity of Jones’s eyewitness identification
of defendant on the night the shooting occurred. Specifically, counsel pointed out that the
shooter’s face was partially covered, that the lighting in the hallway was dim, and that Jones only
looked at the shooter for seconds before seeking cover from the incoming bullets.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

                                 A. STANDARD OF REVIEW

        “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). Generally, this Court reviews for clear error the trial court’s findings of fact and
reviews de novo questions of law. Id. at 188. However, because defendant’s motion in this
Court to remand for a Ginther1 hearing was denied,2 “no factual record was created with respect
to defendant’s claim, and this Court’s review is limited to mistakes apparent on the lower court
record.” Id.

                                         B. ANALYSIS

       Trial counsel was not ineffective for failing to request the appointment of an expert
witness on eyewitness identification.

        “Trial counsel is presumed to have been effective, and defendant must prove otherwise.”
People v Blevins, 314 Mich App 339, 351; 886 NW2d 456 (2016). In order to establish
ineffective assistance of counsel, a defendant must show that “(1) counsel’s performance was
deficient, meaning that it fell below an objective standard of reasonableness, and (2) but for
counsel’s error, there is a reasonable probability that the outcome of the defendant’s trial would
have been different.” Solloway, 316 Mich App at 188. “This Court does not second-guess
counsel on trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.”
People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017). The defendant “bears the
burden of establishing the factual predicate for his claim.” People v Putman, 309 Mich App 240,
248; 870 NW2d 593 (2015) (quotation marks and citation omitted). “Decisions regarding what
evidence to present, whether to call witnesses, and how to question witnesses are presumed to be
matters of trial strategy . . . .” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Gaddis, unpublished order of the Court of Appeals, entered October 12, 2018 (Docket
No. 344115).


                                                -2-
Defense counsel’s failure to present certain evidence does not constitute ineffective assistance of
counsel unless defendant has been deprived of a substantial defense. People v Jackson (On
Reconsideration), 313 Mich App 409, 432; 884 NW2d 297 (2015). “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).

        In People v Blevins, 314 Mich App at 348, the defendant argued that his identification by
four witnesses in photographic arrays was the product of impermissibly suggestive procedures
and that an expert witness should have been presented on the topic of eyewitness identification.
The defendant specifically argued that there had been “250 exonerations based on DNA, 76% of
which involved misidentification as a factor.” Id. However, this Court held that the trial court
did not clearly err by admitting the identification evidence. Id. at 348-350. Further, this Court
held that trial counsel was not ineffective by failing to present an expert witness on eyewitness
identification:

       As the lower court found in its decision on defendant’s motion for new trial,
       counsel made strategic and reasonable choices in light of his trial strategy. His
       cross-examination of witnesses worked with the court’s instructions on
       identification: he impeached witnesses on issues of intoxication, lighting,
       distance, discrepancies in descriptions, and the amount of time each witness had
       to make an observation. Although defendant believes that additionally presenting
       an expert on eyewitness testimony would have been helpful, and defendant may
       even be right, that counsel could conceivably have done more, or that a particular
       trial strategy failed, does not mean counsel’s performance was deficient.
       Accordingly, counsel’s decision to rely on cross-examination to impeach the
       witnesses who identified defendant does not fall below an objective standard of
       reasonableness. [Blevins, 314 Mich App at 351 (citation omitted.)]

        Here, trial counsel extensively cross-examined Jones concerning his eyewitness
identification of defendant. Trial counsel elicited testimony that “the peephole [through which
Jones saw defendant] is pretty minute.” Further, trial counsel cross-examined Jones concerning
his visibility of the shooter. Counsel, noting that Jones “indicated the hoodie covered [the
shooter’s] forehead,” further questioned Jones as follows:

               Q. All right. So you got a look at his eyes, his nose, and his mouth?

               A. Yep, and the chin.

              Q. And the chin. All right. And that look only lasted a matter of seconds,
       correct?

               A. Yes.

       Trial counsel also impeached Jones concerning what the shooter was wearing:

              Q. All right. And did he have anything else on? Did he have a coat on;
       anything of that nature?


                                                -3-
               A. No. Just a hoodie.

             Q. All right. Okay. Do you remember testifying at the preliminary
       examination?

               A. Yes.

               Q. Do you remember testifying that he had a coat and hood [sic] on?

               A. Yes.

Trial counsel also asked Jones if he remembered testifying at the preliminary examination that
the light in the hallway, where the shooter stood, was very dim.

        Therefore, defense counsel was prepared to cross-examine Jones concerning his
eyewitness identification and made an effort to discredit Jones’s identification of defendant as
the shooter. “[C]ounsel’s decision to rely on cross-examination to impeach the witness[] who
identified defendant does not fall below an objective standard of reasonableness.” Blevins, 314
Mich App at 351. Instead, “[c]ounsel’s decision whether to call a witness is presumed to be a
strategic one for which this Court will not substitute its judgment.” People v Ackerman, 257
Mich App 434, 455; 669 NW2d 818 (2003).

         Further, in this case, “[d]efendant offers no proof that an expert witness would have
testified favorably if called by the defense.” Id. Accordingly, he has not established the factual
predicate for his ineffective assistance of counsel claim. Id.; see also People v Hoag, 460 Mich
1, 6; 594 NW2d 57 (1999). Therefore, “defendant has not established a reasonable probability
that but for counsel’s alleged error the result of the proceedings would have been different.”
Ackerman, 257 Mich App at 455-456.3




3
  Defendant additionally appears to argue that, even though defense counsel did not have the
benefit of People v Kennedy, 502 Mich 206; 917 NW2d 355 (2018), our Supreme Court’s
holding in that case applies to him. In Kennedy, 502 Mich at 210, our Supreme Court clarified
“that MCL 775.15 does not apply in [the] context” of an indigent defendant’s request for
appointment of an expert. Here, no request was made for the appointment of an expert witness;
therefore, Kennedy is not applicable. Moreover, Kennedy, 502 Mich at 228, provides that “a
defendant must show the trial court that there exists a reasonable probability both that an expert
would be of assistance to the defense and that denial of expert assistance would result in a
fundamentally unfair trial.” (Quotation marks and citation omitted.) For the reasons stated,
defendant cannot make this showing.


                                               -4-
Affirmed.

                  /s/ Jonathan Tukel
                  /s/ Deborah A. Servitto
                  /s/ Michael J. Riordan




            -5-
