                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 17, 2017
              Plaintiff-Appellee,

v                                                                  No. 333290
                                                                   Ottawa Circuit Court
JUAN ZAMUDIO,                                                      LC No. 15-039577-FH

              Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        On August 5, 2015, defendant, Juan Zamudio, and Jose Antonio Chiquito, who goes by
the nickname “Tony,” attended a social gathering at the home of Leonel Hernandez-Arellano,
who is known as “Wedo.”1 At some point during the evening, an argument between defendant
and Tony escalated into a physical confrontation, and defendant stabbed Tony multiple times.
Tony suffered severe injuries, but ultimately survived the altercation. The trial court received
conflicting testimony regarding who was the initial physical aggressor. Defendant admitted that
he stabbed Tony, but argued that he acted in self-defense after Tony attacked him.

        Following a jury trial, defendant was convicted of assault with intent to do great bodily
harm less than murder (AWIGBH), MCL 750.84, and felonious assault, MCL 750.82. The trial
court sentenced defendant to serve 30 to 120 months’ imprisonment for his AWIGBH conviction
and 24 to 48 months’ imprisonment for his felonious assault conviction. Defendant now appeals
as of right. We affirm.

        Defendant first argues on appeal that he was denied his right to a fair trial by the
admission of certain statements made by Detective Scott Weiss in the video of Weiss’s
interrogation of defendant that was played for the jury at trial. We conclude that defendant has
waived appellate review of this issue.




1
  When consistent with the trial testimony, we will use nicknames in lieu of proper names
throughout this opinion.


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        At trial, the prosecutor requested permission to play the video recording of the interview
for the jury, and defense counsel stated, “No objection.” The video was played for the jury, and
defense counsel never objected to any portion of the video while it was being played. Defense
counsel’s affirmative statement that defendant had “No objection” to the admission of this
evidence waives review of this issue on appeal and extinguishes any purported error. People v
McDonald, 293 Mich App 292, 295; 811 NW2d 507 (2011).

        Next, defendant argues in the alternative that he received ineffective assistance of counsel
based on defense counsel’s failure to object and obtain a redacted version of the interrogation
video. We conclude that defendant has failed to demonstrate that he was denied his
constitutional right to the effective assistance of counsel.

       Defendant did not move the trial court for a new trial or for an evidentiary hearing, and
defendant’s claim of ineffective assistance of counsel is therefore unpreserved. People v Sabin
(On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). “Unpreserved issues
concerning ineffective assistance of counsel are reviewed for errors apparent on the record.”
People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012).

         “[T]o find that a defendant’s right to effective assistance of counsel was so undermined
that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that the representation so
prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 338;
521 NW2d 797 (1994). To show prejudice, the defendant “must show a reasonable probability
that the outcome would have been different but for counsel’s errors.” People v Grant, 470 Mich
477, 486; 684 NW2d 686 (2004). “Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland v Washington,
466 US 668, 700; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        In this case, we need not decide whether the challenged statements were inadmissible and
whether defense counsel’s performance was deficient because we conclude that defendant has
failed to demonstrate sufficient prejudice. Additionally, this Court “does not second-guess
counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of
hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

         Defendant admits that he and Tony engaged in a physical altercation, and that he stabbed
Tony multiple times, severely wounding him. In fact, testimony from Tony’s treating physician,
Dr. Teddy Sasha Vlahu, revealed that defendant stabbed Tony ten times in total, causing Tony to
suffer three intestinal lacerations, a collapsed lung, and a cut to a major artery. Dr. Vlahu
testified that each of these injuries was potentially life-threatening. The only real issue at
defendant’s trial was whether defendant acted in self-defense. There was conflicting testimony
about who started the physical altercation. 2 Nonetheless, even crediting defendant’s assertion


2
 Whether defendant or Tony was the initial aggressor is an important factual question, given that
an initial aggressor is not entitled to the defense of self-defense. People v Guajardo, 300 Mich
App 26, 35; 832 NW2d 409 (2013). We need not address that question, however, given that,


                                                -2-
that he used the knife in response to Tony’s attack, he could not have been found to have acted in
lawful self-defense.

        An individual has a right, under the Self-Defense Act (SDA) to use deadly force to repel
an attacker if he honestly and reasonably believes that (1) he or another person is in imminent
danger of death, great bodily, harm, or sexual assault, and (2) deadly force is necessary to
prevent the harm. MCL 780.972; Guajardo, 300 Mich App at 35-36 (explaining that, although
the SDA modified the common-law duty to retreat in some circumstances, the SDA continued to
require a person to have an honest and reasonable belief of imminent harm sufficient to justify
the use of deadly force). A defendant is only entitled to use the amount of force necessary to
defend himself or another person, and “does not act in justifiable self-defense when he or she
uses excessive force.” Id. at 35.

        Defendant testified that he was physically disabled and that he believed Tony was going
to kill him based in part on Tony’s reputation for violence and their ongoing disagreements.
According to defendant, Tony jumped on him while he was sitting in a chair and started
punching him. Defendant claimed to believe that stabbing Tony was necessary to prevent his
own death. Nonetheless, even viewing the circumstances as perceived by defendant—as we are
required to do, see People v Green, 113 Mich App 699, 704; 318 NW2d 547 (1982)—such a
belief was not reasonable under the circumstances. Defendant never claimed that Tony did
anything other than punch defendant, that Tony had a weapon of any kind, or that defendant was
seriously injured by Tony’s punches. Multiple life threatening stab wounds are beyond the
bounds of what was needed to repel Tony’s punches, and constitute excessive force.

        Accordingly, because defendant’s actions exceeded his right to self-defense, his actions
are not privileged under the SDA, and, consequently, he has failed to show that there is “a
reasonable probability that the outcome would have been different but for counsel’s errors.”
Grant, 470 Mich at 486. Therefore, defendant has not demonstrated that he was denied his right
to the effective assistance of counsel. Strickland, 466 US at 700.

        Finally, defendant argues that his presentence investigation report (PSIR) must be
corrected because it contains inaccurate information. We find that defendant has not met his
burden to show that the information in the PSIR is inaccurate or irrelevant, and conclude that no
alteration to the report is necessary.3

       “[I]t is imperative that the PSIR accurately reflect the sentencing judge’s determination
regarding the information contained in the report” because “[t]he Department of Corrections

even assuming Tony was the initial aggressor, defendant responded to this aggression with
unlawful excessive force.
3
  Defendant did move this Court to remand this case so that defendant could raise his issue
regarding the PSIR with the trial court. This Court, however, denied that motion concluding that
defendant had “not demonstrated that further factual development of the record or an initial
ruling by the trial court” was necessary for this Court to review the issues presented on appeal.
People v Zamudio, unpublished order of the Court of Appeals, issued March 20, 2017 (Docket
No. 333290).


                                               -3-
relies on the information contained in the PSIR to make critical decisions regarding a defendant’s
status.” People v Lloyd, 284 Mich App 703, 706; 774 NW2d 347 (2009). Accordingly,            upon
either party’s motion, the court must strike inaccurate or irrelevant information from the PSIR
before it is sent to the Department of Corrections. People v Maben, 313 Mich App 545, 554; 884
NW2d 314 (2015). Still, the PSIR is presumed accurate, and defendant bears the initial burden
of showing an inaccuracy or irrelevancy in the PSIR. Loyd, 284 Mich App at 705. If defendant
effectively meets this burden, “the prosecution must prove by a preponderance of the evidence
that the facts are as the prosecution asserts.” Id.

         Defendant argues that the PSIR does not accurately reflect the testimony presented at
trial. Primarily, defendant takes issue with the PSIR’s account of Wedo’s description of the
events at issue. In essence, the PSIR describes Wedo as stating that defendant was the initial
physical aggressor in the altercation. Defendant claims that this is inaccurate because Wedo
testified at trial that Tony was the initial aggressor. While defendant accurately portrays Wedo’s
direct testimony, defendant ignores that Wedo was impeached by his statements to police shortly
after the stabbing, which are consistent with the PSIR’s description. Moreover, we find that the
PSIR accurately reflects the differing theories presented at trial, in that the PSIR also includes
defendant’s statement that Tony attacked him and that defendant acted out of self-defense when
stabbing Tony.

        Finally, defendant argues that the PSIR should include portions of two witnesses’
statements that they never saw defendant with a knife. Those statements, however, were made
irrelevant by defendant’s own testimony that he stabbed Tony with a knife.

        We find that the PSIR contains a complete description of the offense and surrounding
circumstances, MCR 6.425(A)(1)(b), and that the information contained therein is supported by a
preponderance of the evidence, Lloyd, 284 Mich App at 705. Thus, there is no correction to be
made because defendant has failed to demonstrate that the information in the PSIR is inaccurate
or irrelevant, and we deny defendant’s request to remand this matter to the trial court. MCL
771.14(6); MCR 6.425(E)(2); Maben, 313 Mich App at 554.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




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