                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 17, 2015
                Plaintiff-Appellee,

v                                                                  No. 322427
                                                                   Wayne Circuit Court
ANTWAN LABRON CHASE,                                               LC No. 11-010041-FC

                Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

         Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316, second-degree murder, MCL 750.317, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to
life in prison without parole for the first-degree murder conviction, 30 to 50 years’ imprisonment
for the second-degree murder conviction, and two years’ imprisonment for the felony-firearm
conviction. We affirm.

        Defendant argues that he is entitled to a new trial because he was deprived of his
constitutional right to the effective assistance of counsel. We disagree.

        Defendant failed to properly preserve the issue of ineffective assistance of counsel by
filing a motion for a new trial or a Ginther1 hearing in the trial court. People v Petri, 279 Mich
App 407, 410; 760 NW2d 882 (2008). This Court’s review of unpreserved ineffective assistance
of counsel claims is limited to mistakes apparent on the record. People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002). Further, a defendant has effectively waived the issue if the
record does not support the defendant’s assignments of error. People v Sabin (On Second
Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). Whether a person has been denied
effective assistance of counsel is a mixed question of law and fact. People v Matuszak, 263
Mich App 42, 48; 687 NW2d 342 (2004). “The trial court’s factual findings are reviewed for
clear error, while its constitutional determinations are reviewed de novo.” Id.



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


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       “Effective assistance of counsel is presumed, and a defendant bears a heavy burden to
prove otherwise.” People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). This Court
will not second-guess trial counsel’s strategic decisions, People v Henry, 239 Mich App 140,
149; 607 NW2d 767 (1999), and a defendant must overcome the strong presumption that his
counsel’s conduct represented sound trial strategy, People v Douglas, 496 Mich 557, 585; 852
NW2d 587 (2014). For a new trial based on ineffective assistance of counsel, a defendant must
show “(1) that defense counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and (2) that defense counsel’s deficient performance so
prejudiced the defendant that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” People v
Fonville, 291 Mich App 363, 382; 804 NW2d 878 (2011), citing Strickland v Washington, 466
US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        Defendant first argues that his trial counsel’s failure to call a weapons expert to
“properly” rebut the prosecutor’s calculations regarding the number of shots fired by defendant
on the night of the incident in question constituted ineffective assistance. Specifically, the
prosecutor’s argument highlighted defendant’s own statements during cross-examination that he
had fired only five shots in self-defense, that the handgun he used held only 11 bullets, and that
he had never reloaded. The prosecutor then compared these claims with physical evidence that
nine bullets were recovered from defendant’s handgun after the shooting. Defendant argues that
trial counsel should have known that the difference between the number of shots fired and the
number of bullets in defendant’s gun would become a central issue related to defendant’s self-
defense theory, and should reasonably have called a weapons expert to testify with regard to the
nature of guns, bullets, and magazines.

         This argument fails at the outset because defendant has not made an offer of proof
regarding the specific testimony a weapons expert could have offered and how that testimony
supported his self-defense theory. Defendant cannot establish his claim of ineffective assistance
of counsel by merely speculating that an expert could have testified favorably. See People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). Here, defendant does not even
speculate with regard to how a firearm expert’s testimony would be favorable to his defense and
fails to address the fact that a weapons expert would likely provide only cumulative information.
Defendant testified that he was familiar with handguns and had been trained in the proper use of
firearms by the Michigan State Police. He also testified, based on direct knowledge, that his
handgun, the one he admitted to using, held 11 bullets—10 in the magazine and one in the
chamber. Even without a weapons expert, the jury was provided with all relevant information
regarding the actual weapon used during the shootings from its owner and user. Without even
speculative evidence that additional information provided by a weapons expert would have aided
his defense, defendant has failed to establish the necessary factual predicate for his claim of
ineffective assistance of counsel. See People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001).

        Additionally, defendant has failed to overcome the presumption that decisions regarding
what evidence to present and whether to call or question witnesses, including expert witnesses,
are matters of trial strategy. See Davis, 250 Mich App at 368. Because the issue is unpreserved,
the Court’s determination of whether defendant has met the heavy burden required to overcome
that presumption must be supported by facts apparent on the record. See id. Here, the record

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provides no proof that trial counsel failed to explore the potential of expert testimony, as opposed
to making the objectively reasonable strategic decision not to present it. Therefore, defendant
has failed to overcome the presumption that his counsel employed effective trial strategy.
People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003).

        Finally, defendant has failed to establish the necessary prejudice because he cannot show
that expert testimony regarding guns, bullets, and magazines would have affected the outcome of
his trial. Defendant’s ineffective assistance claim is predicated on the assumption that the
number of shots fired on the night of the incident was crucial to defendant’s self-defense theory.
Despite defendant’s assertion on appeal, the prosecutor did not argue that defendant’s act of
reloading would negate his self-defense theory. It is clear from the record that the purpose of the
prosecutor’s “murder math” argument was simply to call defendant’s credibility into question.
Indeed, the bulk of the prosecutor’s closing argument focused on the testimony of three
eyewitnesses, all of whom saw defendant leaving the scene and returning to open fire on his
victims. The prosecutor argued that, regardless of how many shots were fired and by whom,
defendant’s claim that he was acting in self-defense failed because, according to eyewitness
testimony, defendant had been the initial aggressor.

        The viability of defendant’s self-defense theory rested not, therefore, on how many shots
defendant fired, but on the jurors’ determination of whether defendant was telling the truth about
being shot first. The jury does not require an expert to aid in its assessment of witness
credibility, and a weapons expert could not take defendant’s own conflicting statements and
make them consistent. The jury heard defendant testify that he fired four shots inside the house
and one inside his truck, that his gun held 11 total shots, and that he never reloaded his weapon.
No expert testimony could counter the fact that 11 minus 5 equals 6, or refute the physical
evidence that more than six bullets were found inside defendant’s gun. Conflicts in the evidence
are resolved by the jurors, who remain “free to believe or disbelieve, in whole or in part, any of
the evidence presented.” People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999).

         Defendant also argues that trial counsel was ineffective for failing to present expert
medical testimony regarding defendant’s mental state after being shot. Again, defendant has
failed to offer proofs in the form of prospective testimony to overcome the strong presumption
that trial counsel’s decisions were not sound trial strategy. See Ackerman, 257 Mich App at 455.
Defendant claims that a medical expert could have testified that “victims of shootings and other
traumatic events who suffer much blood loss cannot recreate what happened during the events
with clarity.” But again, defendant fails to provide even a speculative argument with regard to
how that testimony would have aided his defense, therefore failing to establish a factual
predicate for his ineffective assistance claim. See Carbin, 463 Mich at 600. Additionally,
defendant has offered no proof that trial counsel failed to explore the potential of medical expert
testimony and simply made the strategic decision not to present it. Absent evidence regarding
the extent of counsel’s pretrial investigation, defendant cannot overcome the strong presumption
that trial counsel’s decision regarding expert testimony was a matter of trial strategy not to be
second guessed by this Court. See Ackerman, 257 Mich App at 455.

       Next, defendant argues that his trial counsel provided constitutionally deficient assistance
when he “allowed the prosecutor to harass [defendant] in such a way that the jury did not fully
appreciate the true situation,” which “was exceptionally dangerous and frightening.” Defendant

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has not indicated which of the prosecutor’s questions was improper or designed to harass him.
Indeed, apart from the one sentence argument quoted above, defendant has not provided a single
record cite or any authority for this argument.

         Without an offer of proof, defendant cannot overcome the strong presumption that trial
counsel’s decisions regarding when to object to the prosecutor’s questions were strategic. See
Douglas, 496 Mich at 585. Nor can he claim that he suffered prejudice despite the trial court’s
explicit instruction to the jury that the prosecutor’s questions themselves were not evidence. See
People v Messenger, 221 Mich App 171, 180; 561 NW2d 463 (1997) (holding that reversal was
not required since the prosecutor’s improper questioning was curable by a limiting instruction).
“ ‘An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority.’ ” People v Watson, 245 Mich App 572, 587; 629
NW2d 411 (2001) (citation omitted). Defendant has abandoned this claim by failing to make a
meaningful argument in support of his position. See id.

        Additionally, we note that defendant was read his rights and expressed his
acknowledgement after the trial judge specifically reminded him, “[I]f you choose to take the
stand, . . . you will be subject to cross-examination by the [p]rosecutor, in front of the jury.”
Defendant was properly informed of his right not to testify, and cannot now argue that he was
prejudiced by his own informed and voluntary decision.

        Finally, defendant argues that trial counsel’s failure to understand MRE 404(b) and MRE
405, which require the use of opinion evidence over specific acts to establish a victim’s
propensity for violence, constituted ineffective assistance. Specifically, defendant argues that
trial counsel’s decision to seek admission of evidence regarding specific acts of violence
perpetrated by the victims, rather than calling individuals to testify with regard to the victims’
reputation for violence, fell below an objective standard of reasonableness.

        First, it should be noted that defendant has failed to establish that trial counsel did not
understand the rules of evidence. Contrary to defendant’s assertion, the fact that trial counsel
filed a motion seeking permission to present testimony regarding the victims’ prior violent crime
convictions does not establish a misunderstanding of the rules. While the trial judge ruled that
the victims’ convictions were inadmissible as specific instances of conduct, defendant does not
argue that trial counsel misstated or misinterpreted the evidentiary rules in his motion or in his
arguments before the trial court. Defendant cannot, in hindsight, fault trial counsel for making
an unsuccessful attempt to request admission of evidence that would greatly aid defendant’s self-
defense theory.

         Defendant’s argument also fails for the same reasons his other ineffective assistance
claims failed. Despite defendant’s claim that it would be “easy” to locate witnesses who would
testify with regard to the victims’ violent propensities, defendant has failed to provide the name
of a single witness, other than himself, who would so testify. Defendant’s assertion that, at the
very least, he could have testified regarding his opinion of the victims’ violent natures is
drastically undermined by defendant’s trial testimony, which indicates that he did not know one
of the victims before their confrontation that evening. Finally, defendant has offered no proof
that trial counsel failed to seek out witnesses and discovered either that the victims did not have a

                                                -4-
reputation for violence, or that there were no witnesses available to testify in that regard. Again,
without a factual predicate contained in the record, defendant fails to overcome the strong
presumption that trial counsel employed effective trial strategy. See Ackerman, 257 Mich App at
455.

       Affirmed.


                                                             /s/ Kathleen Jansen
                                                             /s/ William B. Murphy
                                                             /s/ Michael J. Riordan




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