                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 8, 2016
              Plaintiff-Appellee,

v                                                                  No. 325121
                                                                   Kent Circuit Court
ROLANDO Q ALVARADO,                                                LC No. 14-004837-FC

              Defendant-Appellant.


Before: METER, P.J., and BOONSTRA and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions of assault with intent to murder,
MCL 750.83, and carrying a concealed weapon (CCW), MCL 750.227. The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 35 to 70 years’
imprisonment for the assault with intent to murder conviction and 35 to 70 years’ imprisonment
for the CCW conviction. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On February 1, 2014, defendant got into a disagreement with Michael Price, with whom
he was living, and Price told defendant that he either had to move out or control his drinking.
Defendant responded that if he were to move out, he wanted his money back for equipment they
had jointly purchased for their siding installation business. On February 3, 2014, defendant
arrived at Price’s house demanding the disputed money. Eventually, Price told defendant to
leave and followed defendant as he walked to the door of the home. As they reached the door,
according to Price, defendant told him to give him the money. Defendant then turned and
stabbed Price in the stomach. A struggle ensued. There was conflicting testimony at trial about
the events that followed. Price testified that he picked up a baseball bat and swung it at
defendant. The fight moved outside, with defendant swinging the knife at him while he swung
the bat at defendant. Eventually, defendant turned and walked out through a gate in front of
Price’s home, and Price turned to walk up the porch steps to call 911. Price claimed that as he
stepped on the first step, he was stabbed in the back. Price turned and swung the bat at
defendant, and Price eventually ended up on the ground. Defendant got on top of Price and
stabbed him while he was lying on the ground. Then defendant left. According to an eyewitness
who observed to portions of the encounter, defendant was stabbing at Price through the doorway
of the house, and Price was able to close the door. Defendant started to leave, but as he reached

                                               -1-
the gate, Price exited the house with a bat. Price swung the bat and hit defendant’s knee. Price
swung the bat again, but missed defendant and fell to the ground. Once Price was on the ground,
defendant got on top of him and stabbed him multiple times.

        At trial, the prosecution presented testimony from Price, from the eyewitness, from
responders to the scene from the Grand Rapids Police and Fire Departments, and from Dr.
Michael Leahy, the trauma surgeon who treated Price at the hospital, and Jana Forner, a Grand
Rapids Police Detective, who testified that she visited Price in the hospital and that Price
identified defendant from a photographic lineup as his attacker. The defense did not present any
evidence or testimony, but defense counsel argued that Price’s testimony was not credible in
light of the conflicting eyewitness testimony.

        Defendant was convicted as described above. Defendant moved this Court to remand the
case to the trial court for a Ginther1 hearing on the issue of the effectiveness of his trial counsel,
arguing that his counsel was ineffective in failing to introduce portions of Forner’s police report,
and portions of Price’s medical records, to impeach Price regarding his version of the events.
This Court denied his motion.2 This appeal followed, limited to the issue of defense counsel’s
effectiveness.

                                  II. STANDARD OF REVIEW

       “The question whether defense counsel performed ineffectively is a mixed question of
law and fact; this Court reviews for clear error the trial court’s findings of fact [if any] and
reviews de novo questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826
NW2d 136 (2012), citing People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
Because no evidentiary hearing was held, this Court’s review is limited to mistakes apparent on
the lower court record. People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012), citing
People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).

                                          III. ANALYSIS

       Defendant contends that he was denied the effective assistance of counsel when defense
counsel did not impeach Price with information contained in excerpts of the police report and
hospital records. We disagree.

         To establish ineffective assistance of counsel, defendant must show:

         (1) counsel’s performance fell below an objective standard of reasonableness and
         (2) but for counsel’s deficient performance, there is a reasonable probability that
         the outcome would have been different. [People v Trakhtenberg, 493 Mich 38,



1
    People v Ginther, 390 Mich 436, 444-445; 212 NW2d 922 (1973).
2
  People v Alvarado, unpublished order of the Court of Appeals, entered September 29, 2015
(Docket No. 325121).


                                                 -2-
       51; 826 NW2d 136 (2012), citing People v Armstrong, 490 Mich 281, 290; 806
       NW2d 676 (2011).]

“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). In ruling on
claims of ineffective assistance of counsel, we affirmatively consider the range of possible
reasons that defense counsel may have proceeded as he did. People v Gioglio (On Remand), 296
Mich App 12, 22; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich 864 (2012).
This Court “will not substitute our judgment for that of defendant’s counsel, nor will we use the
benefit of hindsight to assess counsel’s performance.” People v Unger (On Remand), 278 Mich
App 210, 258; 749 NW2d 272 (2008). “A particular strategy does not constitute ineffective
assistance of counsel simply because it does not work.” People v Matuszak, 263 Mich App 42,
61; 687 NW2d 342 (2004). However, “[c]ounsel may provide ineffective assistance if counsel
unreasonably fails to develop the defendant’s defenses by adequately impeaching the witnesses
against the defendant.” People v Lane, 308 Mich App 38, 68; 862 NW2d 446, 465 (2014).

        The excerpts of the police report and hospital records that defendant attached to his brief
on appeal are not contained in the lower court record. Additionally, because this Court denied
his motion to remand, these documents were not made a part of the post-trial record. However,
because defendant argues that his counsel’s failure to make these documents a part of the lower
court record was the basis for his claim of ineffective assistance, we will nonetheless consider
them in reviewing his claim. See People v Payne, 285 Mich App 181, 190; 774 NW2d 714
(2009) (failure to introduce evidence may be ineffective assistance of counsel if it deprives
defendant of a substantial defense).

        Our review of the record reveals that defense counsel’s cross-examination of Price was
adequate to develop defendant’s defense that Price was not credible and that defendant did not
have the intent to murder the victim. Lane, 308 Mich App at 68. Defense counsel questioned
Price about the stabbing that Price claimed to have occurred at the bottom of the porch. Toward
the end of defense counsel’s cross-examination, defense counsel asked Price whether he knew
there was an eyewitness to the attack; Price responded that he did not. Defense counsel’s trial
strategy was clearly to show that Price was not credible. Questioning Price on his recollection to
firmly establish his version of the events, and cross-examining the eyewitness regarding
discrepancies with Price’s account, in an attempt to impeach Price, was sound trial strategy for
defense counsel even though it did not work. Matuszak, 263 Mich App at 61. Defense counsel’s
conduct in attempting to impeach Price was not objectively unreasonable. Lane, 308 Mich App
at 68. Although defendant argues that the police report contained additional information that
defense counsel could have used to further impeach Price, counsel is not ineffective in failing to
exhaustively impeach a witness on every conceivable point; rather, defense counsel was required
to develop defendant’s defense by adequately impeaching the witnesses against him. Lane, 308
Mich App at 68. Moreover, by not questioning Price about his statements to Forner, defense
counsel did not risk being seen as bullying Price about a statement he had made in the hospital
after receiving surgery to repair the life-threatening injuries he had sustained. This strategy was
within the range of possible reasons that defense counsel may have acted as he did. Gioglio (On
Remand), 296 Mich App at 22. Therefore, defendant cannot demonstrate that failing to
explicitly impeach Price using statements contained in the police report, rather than relying on


                                                -3-
his impeachment through the eyewitness’s testimony, was not sound trial strategy.
Trakhtenberg, 493 Mich at 51.

        Defendant’s argument that defense counsel was ineffective in failing to impeach Price
about the length of his hospitalization, or about Price’s statement that he saw the tip of the knife
protruding from his chest, as reflected in the medical records, is also without merit. First,
defendant makes no showing that those portions of the hospital records were admissible at trial,
as the length of Price’s hospitalization and whether he could see the knife’s tip protrude from his
chest, arguably were not “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. Second, even assuming the hospital records could have
been admitted at least for impeachment purposes, MRE 613(b), nothing in the records attached to
defendant’s motion to remand or brief on appeal supports defendant’s contention that Price was
hospitalized for less than one month (as defendant suggests), or that Price could not have seen
the tip of the knife protruding from his chest. Additionally, because the hospital records contain
numerous statements regarding the seriousness of Price’s injuries and the fact that he had
sustained several serious wounds to his back, it was sound trial strategy for defense counsel not
to provide the jury with additional evidence of Price’s injuries. Gioglio (On Remand), 296 Mich
App at 22. Therefore, defendant has failed to establish that defense counsel was deficient in this
regard so as to overcome the presumption of effective assistance of counsel. Lockett, 295 Mich
App at 187.

       Affirmed.



                                                             /s/ Patrick M. Meter
                                                             /s/ Mark T. Boonstra
                                                             /s/ Michael J. Riordan




                                                -4-
