                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 23, 2018
               Plaintiff-Appellee,

v                                                                   No. 335066
                                                                    Wayne Circuit Court
ROBERT CARL GARDNER,                                                LC No. 15-009499-01-FC

               Defendant-Appellant.


Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

        Defendant appeals his jury trial convictions of first-degree murder, MCL 750.316, felon
in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced,
as a third habitual offender, MCL 769.11, to life imprisonment without parole for first-degree
murder, two to five years’ imprisonment for felon-in-possession, and a consecutive two-year
sentence for felony-firearm. We affirm.

       This case arises from the fatal shooting of Keon Rooks in the early hours of September 9,
2015. It is undisputed that, at the time of the shooting, defendant and the victim were socializing
on the porch of a vacant house on Stout Street. Multiple witnesses testified that defendant told
them that four individuals pulled up in a vehicle and started shooting the victim.



       John Martin lived next to the vacant home on Stout Street and had known the victim for
years. Martin testified that he was in bed when he heard gunshots and the victim yell out, “Why
you doin’ this? You ‘sposed to be my dog.” Martin then heard another gunshot. Jacqueline
Collins also lived on Stout Street and testified that she heard three gunshots, the victim’s voice,
and then one more gunshot. Martin saw the victim lying on the sidewalk and called 911.

         Lonnie Mock was also living on Stout Street on the night of the crime. He testified that
he was with the victim earlier that evening when he saw defendant for the first time. Mock
testified that later that night he heard defendant and the victim outside and when he looked out
the window he saw defendant walking across the street with a firearm. Mock said that defendant
fired the weapon into the ground. Mock testified that he heard two more gunshots minutes later,



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followed by the victim saying something, and then another gunshot. None of the witnesses
living on Stout Street heard the presence of a vehicle around the time of the shootings.

       Alexandra Dickerson, defendant’s girlfriend, testified that defendant arrived at her home
between 1:00 a.m. and 3:00 a.m. and that he seemed “dazed and shocked.” Dickerson said that
defendant told her that Rooks had just been shot and killed. Dickerson explained that she then
drove defendant to see LaVonte Darby—a friend of the victim who had been with him and
defendant earlier that night—but she indicated that neither of them left the vehicle because it
appeared no one was at Darby’s home. In contrast, Darby testified that when he spoke to
defendant the next day, defendant said that he had entered Darby’s home and tried
unsuccessfully to wake him.

        Defendant maintained his innocence throughout two police interviews. An edited video
of the interview was played for the jury. Officer David Soli testified that a shell casing was
found on the porch. Officer Derrick Griffin testified that if a weapon was fired from the street,
any casing would have been found in the street rather than by the porch.

        Following defendant’s convictions, the trial court heard testimony from defense counsel
and defendant at a Ginther1 hearing. Ultimately, the trial court denied defendant’s motion for a
new trial, finding that defendant failed to demonstrate that defense counsel’s performance was
ineffective.

        On appeal, defendant presents numerous claims of ineffective assistance of counsel.
Whether a defendant was denied the effective assistance of counsel “is a mixed question of fact
and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “[T]he
trial court must first determine the facts and then decide whether those facts demonstrate a
violation of the defendant’s constitutional right to the assistance of counsel.” People v Grant,
470 Mich 477, 484; 684 NW2d 686 (2004). This Court reviews questions of constitutional law
de novo, and factual findings are reviewed for clear error. People v Jordan, 275 Mich App 659,
667; 739 NW2d 706 (2007).

       To establish a claim of ineffective assistance of counsel, the defendant must demonstrate
that defense counsel’s performance fell below an objective standard of professional
reasonableness and that there is a reasonable probability that, in the absence of counsel’s
unprofessional errors, the outcome of the proceedings would have been different. Grant, 470
Mich at 485-486. There is a strong presumption that defense counsel’s decisions constitute
sound trial strategy. People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017).

       Defendant first argues that defense counsel was ineffective when she did not move to
suppress defendant’s police statements because his statements were the product of coercion and
showed defendant’s “consciousness of guilt.” Trial counsel is afforded wide discretion regarding
“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). “The fact that defense counsel’s


1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).



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strategy may not have worked does not constitute ineffective assistance of counsel.” People v
Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).

        At the Ginther hearing, both defendant and defense counsel agreed that, during the police
interviews, defendant never confessed that he shot the victim or that he was involved in the
shooting in any way. Officer Griffin testified at trial that defendant asserted his innocence even
after six hours of intense questioning. Further, defense counsel reviewed the interrogation video
and found that defendant was adequately advised of his rights, voluntarily waived them, and was
not coerced in any way. Significantly, the interrogation video allowed defendant to place his
version of events before the jury without being subject to cross-examination. While not all of
defendant’s statements to the police were favorable to his defense, it is apparent from the record
that defense counsel’s decision not to challenge the admissibility of the statements was both
strategic and reasonable. Accordingly, defendant fails to overcome the presumption that defense
counsel’s decision not to move to suppress defendant’s police statements was sound trial
strategy.

        Next, defendant argues that defense counsel was ineffective by failing to investigate and
call Kenise Howard, a woman who lives on Stout Street, and Matthew Davidson, defendant’s
parole officer, as witnesses. Defendant bears the burden of establishing trial counsel’s deficient
performance and prejudice. People v Jackson (On Reconsideration), 313 Mich App 409, 432;
884 NW2d 297 (2015). Additionally, the decision whether to call certain witnesses is presumed
to be a matter of trial strategy. People v Putman, 309 Mich App 240, 248; 870 NW2d 593
(2015). Failure to call a witness at trial constitutes ineffective assistance of counsel when it
deprives the defendant of a substantial defense. Id. “A substantial defense is one that could have
affected the outcome of the trial.” Id.

        As an initial matter, it is unclear from the record when, if at all, defendant informed
defense counsel about Howard or Davidson. Defendant did not provide any affidavits from
Howard or Davidson to demonstrate what their respective testimony would have been, and he
merely speculates as to how they might have testified. Nothing in the record suggests that
Howard had any knowledge of the incident. Defendant asserts that Davidson, his parole agent,
would have testified to his good behavior and would have provided an explanation for why
defendant did not report the shooting to the police. But defendant has not provided any support
for his position that merely reporting a shooting to the police would have constituted a parole
violation. In any event, his decision to not report the crime was a minor piece of circumstantial
evidence in this case. Thus, defendant fails to establish that defense counsel’s decision to not
investigate and call Davidson and Howard denied him a substantial defense.

        Defendant next argues that defense counsel was ineffective by failing to retain an
identification expert to discredit Mock’s testimony and an investigator to support defendant’s
narrative. Whether to retain an expert witness is a “paradigmatic example” of trial strategy so
long as the decision is made following trial counsel’s thorough investigation. People v Ackley,
497 Mich 381, 390; 870 NW2d 858 (2015). Defense counsel’s failure to investigate and attempt
to obtain an expert witness to assist in preparing a defense may rise to the level of ineffective
assistance of counsel. People v Carll, ___ Mich App ___; ___ NW2d ___ (2018) (Docket No.
336272); slip op at 5. However, the failure to call a witness only becomes ineffective assistance



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of counsel when it deprives the defendant of a substantial defense. Putman, 309 Mich App at
240.

         Defendant admitted that he was with the victim at the time of the shooting and no
identification was needed to place him there. Further, no witness claimed to have seen the shots
fired at the victim and so no evidence of visual identification of the shooter was introduced by
the prosecutor. We acknowledge that Mock testified that he observed defendant fire a gun
moments before the victim was shot. However, defense counsel conducted an extensive cross-
examination of Mock and established that he was unable to see the actual shooter from his house.
Defense counsel also attacked Mock’s credibility by questioning him about his level of
intoxication on the night of the shooting. At the Ginther hearing, defense counsel testified that
she did not believe an identification expert was necessary because there were no witnesses that
testified that they saw defendant shoot the victim. Instead, defense counsel made the strategic
decision to focus on attacking Mock’s testimony through cross-examination. This strategy does
not constitute ineffective assistance of counsel simply because it did not work. Stewart (On
Remand), 219 Mich App at 42. Defendant has thus failed to establish that defense counsel’s
decision to not seek an identification expert was objectively unreasonable.

         For similar reasons, defendant cannot establish that defense counsel’s failure to call an
identification expert prejudiced him. “A defendant is prejudiced if, but for defense counsel’s
errors, the result of the proceeding would have been different.” Carll, ___ Mich App at ___; slip
op at 5. Defendant has not provided any indication that an identification expert would have been
able to offer testimony that would have changed the outcome of his trial, especially because
Mock testified that he did not see who actually shot the victim.

        Defendant also fails to demonstrate that defense counsel’s performance was deficient for
failing to retain an investigator. Defendant admitted at the Ginther hearing that he could only
speculate that an investigator may have been able to locate a man named “Vic,” whom defendant
believed knew something about the shooter and may have even been the shooter. Defendant at
no point presented evidence to support that theory. The same can be said for defendant’s
speculation regarding what Howard observed, as discussed above. In sum, it is apparent from
the record that defense counsel adequately investigated the laws and facts of defendant’s case
and made the strategic decision to attempt to prove defendant’s innocence by attacking the
prosecution’s witnesses and highlighting the lack of physical evidence connecting defendant to
the shooting.

        Defendant’s final argument, that he was denied the effective assistance of counsel
because defense counsel failed to plan a trial strategy with him, is unavailing. Defendant and
defense counsel testified at the Ginther hearing that there were at least two meetings prior to
trial. Defendant’s and defense counsel’s recollections of their meetings were consistent—first, to
understand the events of September 9, 2015, and second, to review any discrepancies between
defendant’s narrative and the discovery packet. More importantly, the record reveals that
defense counsel was prepared for trial, demonstrated an adequate knowledge of the evidence,
and was fully prepared to cross-examine each of the prosecution’s witnesses.

       At the Ginther hearing, defense counsel testified that defendant was adamant that he was
innocent and defense counsel crafted a defense to prove that. Defense counsel conducted an


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extensive cross-examination of each of the prosecution’s witnesses, focusing on the lack of
physical evidence and the absence of any witnesses that could testify that they saw defendant
shoot the victim. Defense counsel attacked the credibility of the prosecution’s witnesses and
highlighted the fact that the victim was a drug dealer. During closing arguments, defense
counsel repeated all of the flaws in the prosecution’s case. It is thus apparent from the record
that defense counsel made the strategic decision to attempt to prove defendant’s innocence
through rigorous cross-examinations.

       Affirmed.



                                                           /s/ Douglas B. Shapiro
                                                           /s/ Deborah A. Servitto
                                                           /s/ Michael F. Gadola




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