              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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 19, 2019
                Plaintiff-Appellee,

v                                                                   No. 343129
                                                                    Wayne Circuit Court
MICHAEL DEPP MONROE,                                                LC No. 17-007702-01-FH

                Defendant-Appellant.


Before: LETICA, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

        Defendant, Michael Monroe, appeals as of right his bench trial convictions of assault
with intent to do great bodily harm less than murder, MCL 750.84(1)(a), felonious assault, MCL
750.82, aggravated domestic assault (second offense), MCL 750.81a(3), possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b, interference with reporting
a crime, MCL 750.483a(2)(a), and domestic violence, MCL 750.81(2). Monroe argues that his
defense lawyer provided constitutionally ineffective assistance by ignoring favorable e-mails and
text messages and by failing to call two eyewitnesses who were willing to testify on Monroe’s
behalf. Because further factual development is required, we remand for a Ginther1 hearing.2

                                        I. BASIC FACTS

        On July 29, 2017, there were a series of physical altercations between Shyniece Williams
and Monroe. At the time Williams and Monroe were in a dating relationship. Williams testified
that she went with her daughter and Monroe to an apartment belonging to Deandre Monroe, so


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 We note that the judgment of sentence incorrectly states that Monroe was convicted by a guilty
plea as opposed to by the court following a bench trial. Accordingly, on remand, the trial court
shall amend the judgment of sentence to reflect the actual method of conviction. See People v
Avant, 235 Mich App 499, 521; 597 NW2d 864 (1999).



                                                -1-
that a nearby mechanic could fix her vehicle. Deandre is Monroe’s brother. While Williams was
inside the apartment with her daughter and Deandre, a woman knocked on the door. Deandre
identified the woman as Tajanay Salter,3 and he testified that Salter was Monroe’s girlfriend.
Salter and Williams got into an argument, and Williams went outside with her daughter.
According to Williams she screamed questions at Monroe about who Salter was and then
demanded her car keys. Williams stated that Monroe gave her the keys and, as she was
screaming at him, he punched her in the face so hard that she fell to the ground. Williams stated
that Deandre and the mechanic helped her up, and she walked away from the area with her
daughter. Williams testified that Monroe followed her and, after becoming frustrated, hit her
again in the face before leaving her and her daughter alone.

        In contrast, Deandre testified that Williams hit Monroe with the keys, so Monroe pushed
her and she fell to the ground. He agreed that after getting up, Williams walked away with her
daughter. He offered no testimony regarding whether Monroe followed Williams and punched
her after she walked away.

        After a while, Williams returned to the apartment complex, this time with her brother.
According to Williams, her brother spoke to Monroe after they arrived, and she was able to get
in her car and drive away. Deandre, however, testified that Williams arrived with her brother
and another man and that when she left she only drove a short distance before running back
yelling that Monroe was a liar and that she was going to confront Salter. He recounted that
Williams ran into the apartment building, but came back out with her brother and another man
and they all left.

        Williams returned to the apartment complex a third time, this time by herself. When she
arrived, Deandre was outside. Williams stated that she told him she needed her purse and then
went inside his apartment where she found Monroe and Salter naked. She yelled at Monroe
about his actions and she told him she needed her purse. She said that he got out of the bed and
started “tussling” with her, trying to get her down to the ground. She added that during the
confrontation, Monroe grabbed a gun from a pink tote bag, pointed it at her, and ordered her to
open her mouth. He put the gun in her mouth so she walked backward until she bumped into the
couch. Monroe took the gun from her mouth and struck her face with it several times before
choking her with his other hand. Williams stated that Deandre and another man entered the
apartment and told Monroe to stop. She thought Deandre took the gun and stated that she saw
him with it. Regardless, she testified that Deandre and the other man left the apartment while
Monroe continued to punch her face.




3
 Tajanay’s last name was not mentioned at trial; however, Monroe submitted an affidavit from
“Tajania Salter” in connection with his motion for an evidentiary hearing or a new trial.
Comparing Salter’s affidavit with the trial testimony, it appears likely that “Tajanay” and
“Tajania” are the same individual. Accordingly, for ease of reference we will refer to Tajanay as
Salter in this opinion.


                                               -2-
        At some point, Williams got her purse and keys, and Monroe grabbed her and threw her
out the door. Williams stated that she went outside and got in her car. She told Monroe that she
was going to call the police but he grabbed her phone and threw it on the ground. She asked for
it to be returned to her and Deandre handed it to her. Williams added that Monroe “busted” the
back passenger window using his hands before she was able to drive away.

        Deandre recounted a different version of the third confrontation. He stated that when
Williams arrived her purse was in the backseat of her vehicle, but she went into the apartment,
claiming that her purse was inside. He followed her after at least five minutes had passed. When
he got inside, Monroe was wearing boxers and Salter had a sheet on. He stated that Salter was
pushing Williams against the wall and that Monroe broke them apart and told Williams to “leave,
leave,” but she would not. He stated that Monroe kept grabbing Williams and telling her to
leave, but Williams was “fighting against all that.” Deandre also indicated that while that was
occurring he noted that “they” had “punched all type of holes in [his] walls.” He stated that
while he was in the apartment he did not see a gun and he did not see Monroe strike Williams.
He added that Williams eventually walked out of the apartment. Monroe left as well, and then,
after a while, Deandre followed. Outside, Deandre saw that Williams’s car window was broken
and her phone was in pieces on the ground. Deandre said he picked up the pieces, put the phone
back together, and handed it to her before she drove away. He did not see Monroe break the
window.

       After Williams left, she called the police and told them her head hurt and she felt dizzy.
She was directed to pull over and wait for help. A police officer testified that when he arrived he
saw Williams being helped from her vehicle by emergency medical services. He stated that her
face was noticeably swollen and bruised all over. Williams reported that she had been assaulted
by Monroe, who she asserted had punched her and hit her in the face with a gun. Williams was
taken to the hospital via ambulance, but did not have any injuries other than facial bruising.
Williams testified that, a few days later, Monroe texted her saying, “Sorry for putting my hands
on you.”

         As indicated above, the trial court convicted Monroe of assault with intent to do great
bodily harm less than murder, felonious assault, aggravated domestic assault (second offense),
felony-firearm, interference with reporting a crime, and domestic violence. Following the entry
of a judgment of sentence, Monroe moved for a new trial or, alternatively, for a Ginther hearing,
asserting that his defense lawyer had provided constitutionally deficient representation by failing
to call two witnesses and by failing to use evidence in the form of e-mails and text messages that
Monroe had provided him with. In support of his motion, Monroe submitted three affidavits:
one from himself, one from Salter, and one from Timothy Sanders, who was a resident of the
apartment complex. Monroe did not provide copies of the e-mails or text messages that he
allegedly provided to his defense lawyer. Following a hearing on the motion, the trial court
determined that the affidavits did not satisfy the requirements set forth in MCR 2.119(B).
Additionally, the court noted that any testimony from Salter and Sanders would likely have been
barred because they did not comply with the court’s sequestration order. Finally, the court found
that the proposed testimony was merely cumulative to the trial testimony. Accordingly, the court
denied Monroe’s motion.

       This appeal follows.

                                                -3-
                               II. INEFFECTIVE ASSISTANCE

                                 A. STANDARD OF REVIEW

         Monroe argues that he was deprived of the effective assistance of a trial lawyer because
his lawyer failed to present certain documentary evidence and failed to call Salter and Sanders on
his behalf. “Whether a person has been denied the effective assistance of [a lawyer] is a mixed
question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). The defendant bears the burden of establishing the factual predicate of his claim that his
defense lawyer did not provide effective assistance. People v Hoag, 460 Mich 1, 6; 594 NW2d
57 (1999). Accordingly, to the extent that a defendant’s claim depends on facts not of record, it
is incumbent on the defendant “to make a testimonial record at the trial court level . . . .” People
v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973). A defendant preserves such a claim
by moving for a new trial or an evidentiary hearing to develop the record. People v Sabin (On
Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). In this case, Monroe
preserved his challenge to the effectiveness of his defense lawyer by filing a motion for a new
trial or an evidentiary hearing, which was denied by the trial court. On appeal, the only relief
requested is a remand for a Ginther hearing.

                                         B. ANALYSIS

        It is well established that criminal defendants have a constitutional right to the effective
assistance of a lawyer. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). Defense
lawyers are presumed to provide effective assistance, and the defendant bears the burden of
overcoming that presumption on appeal. People v Solmonson, 261 Mich App 657, 663; 683
NW2d 761 (2004). In addition, courts give defense lawyers “wide discretion in matters of trial
strategy because counsel may be required to take calculated risks to win a case.” People v Heft,
299 Mich App 69, 83; 829 NW2d 266 (2012). Thus, this Court will not substitute its judgment
for that of the defendant’s lawyer regarding matters of trial strategy, nor will it assess the
defendant’s lawyer’s competence with the benefit of hindsight. People v Payne, 285 Mich App
181, 190; 774 NW2d 714 (2009).

        In this case, Monroe argues that his lawyer provided ineffective assistance because he
failed to call two eyewitnesses. “Decisions on whether to call or question witnesses are
presumed to be matters of trial strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d
623 (2012). Further, the failure to call a witness only constitutes ineffective assistance of a
defense lawyer when it deprives the defendant of a substantial defense. People v Chapo, 283
Mich App 360, 371; 770 NW2d 68 (2009). “A substantial defense is one that might have made a
difference in the outcome of the trial.” Id. (quotation marks and citation omitted).

        Monroe requests that this Court remand to the trial court for a Ginther hearing. Although
the trial court denied Monroe’s request for a Ginther hearing, this Court is not precluded from
revisiting the issue. See id. at 368-369; see also MCR 7.216(A)(5) (permitting this Court to
“remand the case to allow additional evidence to be taken.”). A remand for a Ginther hearing is
appropriate if the “defendant has demonstrated [an] issue for which further factual development
would advance his claim.” Chapo, 283 Mich App at 369. A defendant can demonstrate the need


                                                -4-
for further factual development by presenting affidavits or by making an offer of proof. See
MCR 7.211(C)(1).

         Monroe attached three affidavits to his motion for a Ginther hearing and/or new trial. In
the proceedings before the trial court, the prosecution asserted that the affidavits were deficient
because they did not comply with the requirements for an affidavit under MCR 2.119(B)(1), so it
asked the court to strike them. At oral argument, Monroe’s lawyer conceded that the affidavits
were technically deficient, but he asserted the court should nevertheless consider them, noting
that they were all signed and that the affidavits from Salter and Sanders were also notarized. In
its ruling, the court held that the affidavits were deficient, but it still evaluated them as an offer of
proof. Accordingly, we too consider them as offers of proof.

         Monroe’s statement is that he provided information to his defense lawyer, which was
ignored by his lawyer. Specifically, he asserts that he provided his lawyer with e-mails and text
messages from Williams and that he directed his lawyer to two eyewitnesses who would have
testified on his behalf. Merely stating that favorable information ignored after it was brought to
a defense lawyer’s attention is not sufficient to establish the need for a Ginther hearing.
However, taken with other affidavits or offers of proof, it may be sufficient, so we must also
consider the other information submitted.

       As an initial matter, although Monroe asserts that he provided relevant text messages and
e-mails, the content of the messages is not included with his offer of proof. As a result, we have
no basis to conclude that further factual development would advance his claim.

        Next, the proposed testimony from Sanders, a resident of the apartment complex, is
largely cumulative of Deandre’s testimony. Like Deandre, Sanders testified that Williams
returned on the third occasion and told Deandre that she had forgot her wallet. Further, like
Deandre, Sanders stated that he could see Williams’s wallet in the backseat of her vehicle and
that Williams waited on the hood of her vehicle until someone opened the door to the apartment
complex before running inside. Unlike Deandre, however, Sanders explained that when
Williams came back outside, Monroe was behind her and knocked her phone out of her hand.
Sanders stated that when Williams demanded that Monroe pick up the phone, and, when Monroe
picked it up she tried to hit him with her car. The part of his proposed testimony regarding the
car is contrary to the testimony from Williams and Deandre, who both testified that Deandre
picked up the phone. Thus, it is not clear on this record that this testimony would have any
significant impact on the trial’s outcome given that it was largely cumulative or contrary to all
other evidence presented. In other words, this statement does not show that further factual
development would advance Monroe’s claim of ineffective assistance.

      Next, in her statement, Salter stated that after Williams left the apartment the first time,
Monroe came inside and they went to bed together. She then stated:

        I was woke up to a knock at the door. I went and approached the door asking who
        it was when [Williams] made a male voice saying it me, and just pushed her way
        in, she went over to [Monroe] who was still sleeping and started slapping his face,
        he just lay there covering his head and face[.] I said to keep your hands off him,
        she then walked over to me saying “wass up” and swung over the chair in the

                                                  -5-
       living room and hit me. I swung back and we fought back and forth for a while
       before [Monroe] got up and said that’s enough and broke us up. He asked her to
       leave and she was smacking him, and he said to her just leave and she started
       yelling really [Monroe] you gone put me out for her[,] still smacking him, and he
       said just leave[.] [S]he left eventually.

Salter also indicated that there was no gun “involved at all while Ms. Williams was in the
apartment.” The court erroneously found that this testimony was cumulative to the trial
testimony.

        Deandre testified that he observed Williams enter the apartment building just before the
third altercation. He stated, however, that he did not follow her until at least five minutes had
passed. In other words, Salter’s testimony is that there was no gun involved and that Monroe did
not hit Williams from the time she entered the apartment until the time she left, whereas
Deandre’s testimony is that he did not see a gun or see Monroe hit Williams when he came into
the apartment at least five minutes after the confrontation began. Given that the testimony
covers different periods of time, it is not cumulative. Furthermore, Salter’s testimony is
significant in that it goes to the heart of several of the charges, including felonious assault and
felony-firearm.

         On this record, we are unable to discern whether there was a strategic reason for
Monroe’s lawyer’s decision to not call Salter as a witness. The prosecution suggests that the
defense strategy was to present a witness who contradicted various aspects of Williams’s trial
testimony and emphasized the lack of physical evidence supporting Williams’s claim that she
was beat in the face with a handgun. The prosecution, however, ignores that Monroe’s lawyer
called a single witness: Deandre. Then, although Williams had testified that Deandre was
present for part of the assault with the gun and that he did, in fact, have the gun at one point,
Monroe’s lawyer did not ask any questions regarding the third incident. Instead, Deandre
testified regarding the events in the apartment during the third occasion solely in response to
questions by the prosecution and the court. Consequently, the defense strategy appears to have
been to call Deandre, a witness who was present for at least part of the third incident, and then
wholly fail to ask any questions regarding what happened in the apartment at that time.
Similarly, Monroe’s lawyer asked no questions of Deandre with regard to whether he returned
Williams’s phone to her and whether he observed Monroe breaking Williams’s back window
before she left. Again, that information was elicited through questioning by the prosecution and
the court. Under these circumstances, we will not simply assume that the defense strategy was to
not present Salter’s testimony because it was partially cumulative to testimony that the defense
did not actually attempt to present. And, again, significant aspects of Salter’s testimony were (1)
favorable to the defense and (2) not cumulative to Deandre’s trial testimony. Without a Ginther
hearing, we cannot evaluate whether the decision to not present the noncumulative testimony
constituted reasonable professional judgment given the facts of the case and the defense strategy
and options. As a result, we conclude that a remand for a Ginther hearing is necessary to further




                                                -6-
develop the factual record with respect to the reason(s) for Monroe’s lawyer opted to not present
Salter’s testimony. See MCR 7.211(C)(1)(ii).4

       Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

                                                              /s/ Anica Letica
                                                              /s/ Michael J. Kelly
                                                              /s/ Mark T. Boonstra




4
  The trial court was concerned that Salter and Sanders violated the sequestration order.
However, as they were never identified as witnesses, they were not subject to that order.
Moreover, the question before the trial court was whether Monroe’s lawyer provided ineffective
assistance by not calling Salter and Sanders as defense witnesses. In order to call them, the
witnesses would have had to be identified, and, under such circumstances, they would have been
subject to the sequestration order. It is not proper to presume that, if directed to leave the
courtroom pursuant to the sequestration order, they would have nevertheless stayed. It is not
proper for a court to assert, with the benefit of hindsight, that the witnesses will not be allowed to
testify because while they were not identified as witnesses they may have been in the courtroom
in violation of an order they were not subject to. Therefore, the sequestration order is irrelevant
as to whether Monroe’s lawyer provided ineffective assistance.



                                                 -7-
