                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 12, 2016
               Plaintiff-Appellee,

v                                                                    No. 315080
                                                                     Ingham County Circuit Court
RICHARD ANTHONY STRONG,                                              LC No. 12-000403-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and HOEKSTRA and METER, JJ.

PER CURIAM.

         Defendant appeals by right of his convictions, following a jury trial, of first-degree
murder, MCL 750.316(C); possession of a firearm by a felon, MCL 750.224(F); and possession
of a firearm with intent to commit a firearm (felony firearm), MCL 750.227. We affirm.

                                       I. BACKGROUND

        This conviction arises out of the shooting and death of Ygnacio Bermudez Jr. (the victim)
outside of the Loft nightclub (the bar) in Lansing, Michigan. The crucial issue at trial was the
correct identity of the shooter. An altercation occurred between the victim and defendant at a
bar. When the victim later left the bar, he was shot multiple times outside the bar by a man,
identified by witnesses as defendant, and died at the scene. The prosecution presented testimony
of multiple witnesses who identified defendant as the shooter. Evidence was also introduced
concerning the defendant’s access to a handgun and cartridges of the type used in the shooting.
Other testimony was presented concerning defendant and Pierce’s flight to North Carolina, and
defendant’s attempt to hide himself by posing as Pierce’s ex-husband. Defendant was
apprehended while living with Pierce in North Carolina.

                                  II. INEFFECTIVE ASSISTANCE
        Defendant raises a number of claims of ineffective assistance of counsel. We remanded
this case to the trial court for an evidentiary hearing to address defendant’s ineffective assistance
claims.1 The trial court held the evidentiary hearing and found that defendant’s trial counsel was
effective. After a review of the hearing transcript, we agree.

1
 People v Strong, unpublished order of the Court of Appeals, entered June 3, 2014 (Docket No.
315080).


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        In order to support a claim of ineffective assistance of counsel, a defendant must establish
that counsel’s performance was deficient and that the deficient performance was prejudicial.
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In order for
a defendant to show deficient performance, a defendant must show that counsel’s performance
was outside the wide range of professionally competent assistance as secured under the Sixth
Amendment of the United States Constitution. Id. at 689. To satisfy the prejudice prong, a
defendant must show that there is a reasonable probability that, but for counsel’s performance,
the result of the proceeding would have been different. Id. at 693-694. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. at 694. In reviewing this
issue, defense counsel is afforded wide latitude on matters of trial strategy. People v Unger, 278
Mich App 210, 242-243; 749 NW2d 272 (2008). If a defendant wishes to advance claims that
depend on facts not on the record, a defendant can seek at the trial court an evidentiary hearing to
establish evidence on the record that is a precondition for the process of the appellate courts.
Ginther, 390 Mich at 443-444.

         Defendant first faults trial counsel for not properly investigating or calling two witnesses
to testify on his behalf. “Failure to make a reasonable investigation can constitute ineffective
assistance of counsel.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005).
Failure to interview witnesses does not by itself serve to establish inadequate preparation.
People v Caballero, 184 Mich App 636, 642; 459 NW2d 80 (1990). “It must be shown that the
failure resulted in counsel’s ignorance of valuable evidence which would have substantially
benefited the accused.” Id. “[D]ecisions regarding what evidence to present and whether to call
or question witnesses are presumed to be matters of trial strategy . . . [and] . . . the failure to call
witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (internal
citations omitted). “A difference of opinion regarding trial tactics does not amount to ineffective
assistance of counsel.” People v Stubli, 163 Mich App 376, 381; 413 NW2d 804 (1987).

        Defendant cannot show that counsel was unreasonable in his investigation of the case, or
the decision to call or question witnesses. Defendant wanted Bryant Easter, a person who
provided a statement to the police at the scene to be called as a witness for identification because
Easter told law enforcement that he saw someone in a black pea coat run away from the scene
right after the shooting. At the evidentiary hearing, defendant’s trial counsel testified to his
reasons for not calling Easter. He explained that outside of the pea coat, Easter provided law
enforcement with an otherwise close physical and clothing description to that of his client. Trial
counsel did not want to risk Easter positively identifying defendant in court, nor providing the
additional testimony that defendant fled the scene. Therefore, the decision not to call Easter was
strategic and would not have advanced defendant’s mistaken identity defense. Defendant also
faults counsel for not interviewing witness Brian French after the preliminary examination,
before trial begun. French testified at defendant’s preliminary examination and trial that he
clearly saw defendant exit the bar after the victim and shoot the victim in the back of the head.
While trial counsel had little memory of French’s testimony and did not recall if he ever
interviewed him, the record demonstrates that he had the benefit of the preliminary examination
testimony and vigorously cross-examined French at the trial.                He, also, argued the
inconsistencies in all witness testimony in closing. From this record, defendant cannot establish
that not interviewing French in between the preliminary examination and trial was objectively
unreasonable or even necessary.


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       Defendant next argues counsel was ineffective for failing to arrange a polygraph
examination when the prosecution stated that it would agree to such an exam. After the
evidentiary hearing, it is now more evident that the prosecution was indifferent to, rather than in
agreement with defendant taking a polygraph exam. Trial counsel testified that the prosecution
told him it would continue to pursue first-degree murder charges even if defendant passed a
polygraph. Defendant passing a polygraph exam was also of no consequence when the results
are inadmissible. People v Terry, 489 Mich 907, 907; 796 NW2d 469 (2011). Trial counsel
cannot be faulted for failing to arrange a polygraph examination when an exam would not have
had any impact on defendant’s case with the prosecution or the jury. Accordingly, we fail to find
any outcome-determinative error.

        Defendant further claims trial counsel was ineffective for failing to present an alternative
substantive defense. We find that differing opinions between counsel and defendant, as to the
merit of offering an alternative theory that the victim was shot for being a drug dealer, did not
constitute an invalid or unreasonable trial strategy. The choice of which theories to pursue is a
matter of professional judgment entrusted to counsel. People v Traylor, 245 Mich App 460, 463;
628 NW2d 120 (2001). Nevertheless, defendant was not deprived of an alternative substantive
defense because he testified, and therefore the jury heard, that the victim was a known drug
dealer. Defendant’s alternative theory was the weaker of the two submitted to the jury, with no
facts on the record, other than defendant’s own testimony, to show the victim was shot as a result
of drug dealing or by someone related to the victim’s drug dealing. Given the facts, we also find
this claim of ineffective assistance to be without merit.

         Defendant also failed to prove that counsel was ineffective in advising defendant on his
right to testify. The decision whether to testify is ultimately the defendant’s personal decision to
make and counsel must respect that decision. See Rock v Arkansas, 483 US 44, 52; 107 S Ct
2704; 97 L Ed 2d 37 (1987). Here, the record indicates that counsel advised defendant not to
testify.

        Defendant’s assertion that counsel was ineffective due to his failure to address an issue of
juror misconduct fails, also. Defendant is unable to show that counsel was unreasonable or that
the conduct of trial counsel prejudiced him. To establish that extrinsic influence resulted in an
error requiring reversal a defendant must prove two points: (1) that the jury was exposed to
extraneous influences and (2) that these extraneous influences created a real and substantial
possibility that they could have affected the jury’s verdict. People v Budzyn, 456 Mich 77, 88-
89, 566 NW2d 229 (1997). There is no proof of such exposure. The factual record has not
changed since the evidentiary hearing. The witness was subpoenaed for the evidentiary hearing,
but did not appear. Defendant no longer had the letter from the witness. Trial counsel did not
have the letter in defendant’s file. The cell phone, which allegedly recorded the jury foreman’s
discussions, was either lost or broken. Defendant presents no proof of juror misconduct and has
not established that an extrinsic influence affected the jury’s verdict.

        Defendant also asserts that trial counsel was ineffective for failing to address an issue of
witness intimidation involving his ex-wife, Lisa Pierce. This assertion is without support. The
trial court acknowledged at the evidentiary hearing that it was aware of Ms. Pierce’s fear of the
victim’s family. However, Ms. Pierce, who was involved in defendant’s flight, made an
informed decision with advice of counsel not to testify. She invoked her Fifth Amendment rights


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at trial and had no recollection of ever mentioning fear or intimidation as a basis for that
invocation. It is most probable that it was fear of prosecution and conviction that weighed most
heavily in Ms. Pierce’s decision not to testify. Defendant himself indicates that she was not
present at the scene. Considering her credibility issues, it is highly unlikely that even had she
testified, it would have positively affected the outcome of the trial.

        Defendant last claims counsel was ineffective due to conflicts of interest on the part of
the judge and trial counsel. A party claiming judicial bias has a heavy burden to overcome the
presumption of judicial neutrality. In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486
NW2d 326 (1992). The party must prove either actual bias or prejudice. Cain v Dep’t of
Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996). MCR 2.003 governs when a judge
must disqualify him or herself for bias and includes when “[t]he judge is biased or prejudiced for
or against a party or attorney.” MCR 2.003(C)(1)(a).

        As to counsel, a defendant has the burden of demonstrating that an actual conflict of
interest existed and adversely affected the adequacy of representation. Cuyler v Sullivan, 446 US
335, 348-350; 100 S Ct 1708; 64 LEd2d 333 (1980); People v Smith, 456 Mich 543, 556-557;
581 NW2d 654 (1998). In order to demonstrate an actual conflict of interest, a defendant has the
burden to show that counsel actively represented conflicting interests and that this actual conflict
of interest adversely affected counsel’s performance. Smith, 456 Mich at 557. Prejudice is
presumed if an actual conflict of interest exists that adversely impacts the counsel’s performance.
Id. at 556-557.

        With respect to the first alleged conflict of interest, defendant personally brought up the
question of trial court bias on the fifth day of trial. The trial judge refused to disqualify himself
on the ground that his wife was friends with defendant’s mother and the trial judge was familiar
with his step-father. Defendant fails to show that counsel’s failure to bring this matter up before
defendant did was either unreasonable or outcome-determinative. The trial judge stated that he
did not know defendant, which defendant acknowledged, and was not biased by the acquaintance
with defendant’s step-father. The trial judge maintained this position at the evidentiary hearing.
Trial counsel testified at the evidentiary hearing that he and defendant even discussed how the
association may have resulted in a favorable verdict for defendant. Given this, and the fact that
the trial judge did not disqualify himself, defendant cannot show that he is entitled to relief on
this claim of ineffective assistance.

        With respect to the second conflict alleged by defendant, trial counsel testified at the
evidentiary hearing that he made defendant aware, before defendant’s preliminary examination,
that he was previously counsel for one of the prosecution’s witnesses in an unrelated criminal
case that was dismissed during preliminary examination. Trial counsel testified that his contact
with the witness regarding that case lasted about an hour. Despite the disclosure, defendant
never asked for a new attorney. The witness hugged defense counsel when she saw him during
defendant’s trial. Defendant argues the hug evidenced a conflict of interest. This issue was not
presented in the record below. In fact, trial counsel testified at the evidentiary hearing that he
was not aware that the hug upset defendant until after the jury verdict. The trial and evidentiary
hearing records do not show that trial counsel had a personal relationship, or anything to gain
from the witness or the victim’s family. Defendant fails to offer any evidence as to how the prior
dealings adversely effected the representation beyond an acknowledgment that the relationship


                                                -4-
exists. We find that defendant has not shown that interest in this case would disqualify counsel
from representing defendant. We also note that counsel zealously represented defendant.
Defendant is not entitled to relief on this issue.

        Moreover, counsel’s representation overall indicates that he provided effective assistance.
He argued that the prosecution could not establish the shooter’s identity beyond a reasonable
doubt, that the police did an incomplete investigation of suspects, that there were no fingerprints
or gunshot residue to show defendant as the shooter, that another man may have been the
shooter, that the gun and ammunition used was common, and that defendant had proffered an
alibi. Furthermore, the evidence against defendant was considerable, including eyewitness
identifications, ballistic evidence linking defendant to the type of gun used in the shooting, and
defendant’s actions in fleeing the scene and state.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Patrick M. Meter




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