                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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

v                                                                   No. 323082
                                                                    Wayne Circuit Court
RONNIE LLEWELLY JORDAN, also known as                               LC No. 14-000706-FC
RONNIE LLEWELLYN JORDAN,

               Defendant-Appellant.


Before: SAWYER, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

        Defendant, Ronnie Jordan, appeals as of right his convictions following a jury trial of
assault with intent to commit murder, MCL 750.83, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him to 20 to
30 years’ imprisonment for the assault with intent to commit murder conviction and two years’
imprisonment for the felony-firearm conviction. Because we agree with defendant that his trial
counsel rendered ineffective assistance of counsel and there is a reasonable probability that the
result of the proceedings would have been different, we reverse and remand for a new trial.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

       On September 2, 2013, Jason Foley was shot several times while at a Sunoco gas station
in Detroit. The only evidence linking defendant to the incident is Foley. At trial, Foley testified
that he was at the gas station to purchase narcotics from defendant, whom he knew as “J.R.”
According to Foley, he had known defendant for a little under six months and had purchased
cocaine from him on approximately 20 occasions. All but one of their transactions took place at
the same gas station. Although Foley had always initiated the prior transactions by calling
defendant, on this night, Foley testified that defendant called him and offered to sell him drugs.
Foley agreed to buy marijuana for $20.




                                                -1-
        Foley testified that at approximately midnight, he pulled his car up to a pump at the east
side of the gas station. Two vehicles were also at the station, a gold SUV and a blue Chevy
Malibu. Two unknown males were seated in the blue Malibu. Foley claimed to have previously
seen defendant in the blue Malibu six months earlier during their one transaction that did not take
place at the Sunoco gas station, although he did not connect defendant to the car on the night of
the shooting. Foley testified that the driver of the blue Malibu “aggressively” tried to get him to
purchase drugs from them, which he found strange because “[e]very time I go to Detroit to
purchase narcotics, they always think I’m a cop.” Although he kept trying to ignore them, Foley
finally told them to “go get it” so they would leave. Foley testified that his conversation with the
occupants of the blue Malibu took place through their open windows while they were seated in
their cars. Foley did not get out of his car.

       Foley testified that when the gas station parking lot was empty, he saw defendant
approaching from a nearby alley, as he had done on every prior occasion when they engaged in a
drug transaction. Defendant was wearing a black hooded sweatshirt. Foley then lost sight of
defendant when a white car pulled into the gas station. After the white car left, a homeless man
began banging on a blue metal donation box directly in front of Foley’s car.

        Foley next saw defendant approaching from the alley through his rearview mirror;
defendant was running up to Foley’s car with the hood of his sweatshirt pulled up and the strings
pulled tight, covering the top of his head and his face from the ears back, although his eyes, ears,
and nose were still visible. Foley looked through his right side mirror and saw that defendant
was pulling out a gun from his pants. Foley put his car, which was still running, in drive and hit
the accelerator. Defendant immediately began shooting; he was no more than five feet away and
by the right rear door, according to Foley. Foley’s side window broke, and he heard at least
eight shots fired. As defendant fired, he was yelling something, although Foley could not discern
what he was saying. Foley was hit in the back, causing him to lose feeling in his legs. He was
also shot in the right middle finger, and “fragments” lodged in his wrist. Using his right hand,
Foley pushed the accelerator to escape, looking up intermittently to see where he was going. He
made it a mile down the road and stopped at the Hazel Park Police Department, where an
ambulance was called. Hazel Park Police Officer R. Ackerberg1 rendered first aid to Foley and
directed Officer Michael Kasdorf to the crime scene to secure the area until the Detroit Police
Department (DPD), who had jurisdiction over the gas station, could arrive.

        At the hospital, police officers from the DPD spoke with Foley and prepared a two-page
written statement, which Foley read and signed. He did not recall with certainty whether he told
the officers at the hospital why he was at the gas station at the time of the shooting, or whether
he told them who shot him, but he contended that he did describe the shooter. Foley contended
that during his statement, doctors and nurses were trying to get the police officers out of the
room so they could save his life. Foley underwent surgery to remove the bullet from his back.




1
    The officer’s first name is not clear in the lower court record and appellate briefs.


                                                   -2-
         On cross-examination, Foley admitted to various discrepancies between his trial
testimony and what was contained in the written statement that he signed at the hospital. For
example, he admitted that the statement did not mention his linking defendant to the blue
Malibu. Further, it described a blue Impala, not a blue Malibu, although Foley contended that
the bodies of those vehicles are nearly identical and the blue car was referred to as an Impala for
much of the rest of his testimony. It did not mention that Foley linked defendant to the blue
Impala. It did not mention that he had seen defendant with his hood down in the alley before
temporarily losing sight of him. Most significantly, it did not identify defendant as the shooter.
Rather, it indicated that he saw “a Guy” in his right mirror walking up wearing a hoodie with the
hoodie over his head with the strings pulled tight. When asked to describe the shooter in his
statement, he answered, “5’10” 180 Pounds Black male, Dark skin in his 20s,” rather than by
name. Foley admitted that his written statement only identified defendant (described as “J.R.”)
as the person he was meeting at the gas station at the time of the shooting. Foley explained the
lack of references to defendant as the shooter in his statement by saying, “I think it’s fair to say
that I didn’t write this [statement] and someone was trying to write down what I was saying.”
Foley admitted that when he saw the person with the gun, he was concerned about his safety, and
his immediate reaction was to get out of the area as quickly as possible. Foley admitted that at
the end of the statement, in response to the question, “Is there anything else you want to add to
your statement,” is written his response: “No sir, that’s it.” Foley also testified that he did not
give a description of the shooter when he was at the Hazel Park Police Department. He also
testified at trial that he had told the police the shooter had some facial hair, but on redirect and
recross he agreed that in his written statement there is no mention of facial hair, and at the
preliminary examination he testified that he did not tell police the shooter had facial hair. Foley
also testified that the shooter was attempting to crouch down, or hide, as he approached Foley’s
car, and Foley did not observe the shooter for very long.

         When answering questions posed by the trial court, Foley testified that he never got out
of his car when buying drugs from defendant. Instead, he would remain in his car at a gas pump,
defendant would approach on foot, and they would make their exchange at the driver’s-side door.
When the court asked Foley whether he sensed any anger or dissatisfaction in defendant’s voice
at the time of their phone call on the night of the shooting, Foley testified that he did not, but that
the two had gotten into a fight a month earlier because Foley had refused to give defendant a ride
after their drug transaction. Foley testified that defendant called the next day and apologized,
offering to give him the rest of the drugs he had withheld at the time of their fight; Foley told
defendant that he was trying to stop doing drugs and to never call again, provoking another
argument. Foley testified that the night of the shooting (a month later) was the next time they
spoke, that he had completely forgotten about their fight, and that defendant’s call was “a
complete setup” to shoot him. Foley admitted on recross that his written statement does not
mention him having a prior fight with defendant (or “J.R.” as he is referred to in the report), and
he did not testify about the argument at the time of his preliminary examination.

        Foley was questioned extensively at trial by defense counsel, the prosecutor, and the
court about his interaction with the occupants of the blue Impala, including the distance between
their respective cars, their placement between gas pumps, and whether the car windows were
open or closed. The jury also asked a host of questions of Foley.



                                                 -3-
         Officer Anthony Brown became the officer in charge of the case on September 3, 2013.
He testified that in the course of his investigation, on either September 3 or 4, he went to the
Sunoco gas station and attempted to obtain a copy of the gas station’s surveillance video, but the
system only stored video for 24 hours and it was no longer available. After Foley was out of the
hospital, Officer Brown met with him and took a second statement from him, although it was not
reduced to writing. Officer Brown testified that Foley told him about the prior argument he had
had with defendant, and he identified defendant in a photographic lineup. Officer Brown also
testified that defendant’s address was one block away from the gas station.

        On cross-examination, Officer Brown admitted that he did not mention in his report the
fact that Foley had told him about a prior argument with defendant. When asked his
understanding regarding how many people were involved in the shooting, Officer Brown stated
his belief that there was only one. Defense counsel then undertook to question Officer Brown
about the contents of Officer Ackerberg’s report—which, as discussed in more detail below,
contained a version of the events that significantly differed from Foley’s trial testimony—but the
court sustained the prosecutor’s objections to his questions based on hearsay. Defense counsel
pursued multiple additional attempts to get into the substance of Officer Ackerberg’s report with
Officer Brown, but was shut down on every occasion. Defense counsel finally undertook to
make an offer of proof outside the presence of the jury, but the trial court still found that the
evidence was hearsay from another officer, and thus, inadmissible when questioning Officer
Brown.

        After two more witnesses testified and the prosecution rested, and outside the presence of
the jury, defense counsel indicated that he wanted to call Officer Ackerberg for impeachment
purposes. Defense counsel stated that Officer Ackerberg “personally questioned Mr. Foley, and
the information he got from Mr. Foley was -- and I’m gleaning this from his statement,[2] that he
was jumped by -- he being Mr. Foley was jumped by two black males, no description given.” In
pertinent part, Officer Ackerberg’s report contains the following description of events relayed by
Foley:

       I asked FOLEY what had happened. He stated that he had been at the Sunoco
       Gas Station at 8 Mile Road & John R Road, Detroit. He stated that he was
       “jumped” by 2 B/M’s (no description given). He stated that he was running to his
       car when he was shot in the back. He stated that he was able to get into his car
       and flee from the shooter/s to seek medical attention. FOLEY was not specific on
       what had led up to the shooting incident.



2
  It appears from the record that defense counsel had Foley’s statement to Officer Ackerberg in
his possession at the time of trial. Although the reasons for defense counsel’s failure to do so are
not clear from the record, the transcripts reveal that defense counsel did not attempt to impeach
Foley by asking him if he recalled giving an inconsistent version of what happened to Officer
Ackerberg or anyone else while at the Hazel Park Police Department immediately after the
shooting.


                                                -4-
Defense counsel stated that it was his intention to have Officer Ackerberg testify as to what
Foley told him right after the shooting. Defense counsel admitted that he had not subpoenaed
Officer Ackerberg, but stated that “as I listen to the testimony during the course of trial, I feel
that testimony is important.” The prosecutor noted that Officer Ackerberg was not endorsed as a
witness by the prosecution. In response to the trial court’s inquiry whether defense counsel had
made some effort to contact Officer Ackerberg, defense counsel admitted, “[n]ot until now Your
Honor. That’s why I’m asking for him to be subpoenaed –as I see the trial now, I think that
evidence is material to Mr. Jordan’s defense,” to which the trial court responded, “When was it
ever not material?” Defense counsel contended that he was under the impression that Officer
Ackerberg was going to be a witness in the case, and that he “honestly thought” he was going to
be called by the prosecution. The trial court ordered the prosecution to assist in locating Officer
Ackerberg and gave the parties until the next day to find him. Despite what the trial court found
to be diligent efforts by both the prosecution and the DPD to secure Officer Ackerberg’s
presence at trial, such efforts proved unsuccessful. 3

        The defense called as a witness Sergeant Brandon Cole of the DPD, who testified that he
took a statement from Foley at the hospital on the night of the shooting. Sergeant Cole testified
that Foley was coherent when he gave his statement and that health professionals, who were in
and out of Foley’s room, did not tell Sergeant Cole to leave. According to Sergeant Cole, Foley
stated that he was at the gas station to meet defendant for a $120 drug deal. Contrary to Foley’s
testimony at trial, Sergeant Cole recalled that Foley told him that he, not defendant, had set up
the drug deal. Sergeant Cole admitted that Foley’s signed statement did not identify defendant as
the shooter, just the person whom he was at the gas station to meet, and that his report contained
the words “unknown suspect.” But, he testified that the phrase “unknown suspect” had been
previously entered in the report by another officer and that Foley did identify J.R. as the shooter:

       Well, this unknown suspect is actually a bring forward from another officer’s
       report. What happens with Crisnet[4] is every -- because of the way the system is
       set up, every officer’s either victim, perpetrator, suspect, anybody that’s named in
       a previous report has to be brought up in the follow-up reports. . . . So that’s
       actually not mine. That was brought up from an earlier officer’s report that put
       basically unknown suspect. I can testify today that the victim told me that J.R. is
       the one who shot him.




3
  The prosecutor tracked down Officer Ackerberg’s cell phone number, as well as the telephone
number of his lawyer, and left messages for each instructing that Officer Ackerberg was to
appear in court the next day; the calls were not returned and Officer Ackerberg did not show up
in court.
4
  It appears from the record that Crisnet is a type of system into which reports are entered, and
that a “Crisnet report” is a preliminary report, which one law enforcement officer described at
trial as “basically just a brief synopsis of what occurred, and it’s basically saying who did what,
when and where.”


                                                -5-
         After the close of proofs and closing arguments, the jury deliberated and twice indicated
that it was deadlocked. The trial court read the deadlocked jury instruction on the first occasion
and adjourned for the day on the second occasion. The next morning, the jury rendered its
verdict and convicted defendant as described above.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues on appeal that defense counsel was ineffective for failing to subpoena
Officer Ackerberg to testify at trial, obtain the gas station surveillance video, subpoena the owner
of the gas station, follow up on information regarding a different alleged perpetrator of the
crimes, and object to the scoring of offense variables (OVs) 3, 4, 5, and 10 based on the court’s
use of judicially determined facts. As it pertains to counsel’s failure to subpoena Officer
Ackerberg, we agree, and find that counsel’s failure in this regard prejudiced defendant,
warranting reversal and a new trial.

        To preserve a claim that his or her counsel was ineffective, a defendant must move in the
trial court for a new trial or a Ginther5 hearing. People v Payne, 285 Mich App 181, 188; 774
NW2d 714 (2009). Defendant’s claims are not preserved for appeal because he did not move for
a new trial or a Ginther hearing in the trial court, and this Court denied his motion to remand for
a Ginther hearing.6 Accordingly, our review is limited to errors apparent from the
trial court record. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim
of ineffective assistance of counsel is a mixed question of law and fact. A trial court’s findings
of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional
issue arising from an ineffective assistance of counsel claim de novo.” Id., citing People v.
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

        To evaluate a claim of ineffective assistance of counsel, this Court uses the standard
established in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984). People v Hoag, 460 Mich 1, 5-6, 594 NW2d 57 (1999), citing People v Pickens, 446
Mich 298; 521 NW2d 797 (1994). For a successful claim of ineffective assistance of counsel,
the defendant must show that: “(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, 51; 826
NW2s 136 (2012). The effective assistance of counsel is presumed. People v Roscoe, 303 Mich
App 633, 644; 846 NW2d 402 (2014).

        Generally, “[d]ecisions regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy . . . .” People v Davis, 250 Mich
App 357, 368; 649 NW2d 94 (2002). The failure to call a witness may only amount to
ineffective assistance of counsel if it deprives the defendant of a substantial defense. People v


5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
6
 People v Jordan, unpublished order of the Court of Appeals, entered March 25, 2015 (Docket
No. 323082).


                                                -6-
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). “A substantial defense is one that might
have made a difference in the outcome of the trial.” People v Chapo, 283 Mich App 360, 371;
770 NW2d 68 (2009) (citation and quotation marks omitted).

        Defendant’s first criticism of his counsel is the failure to subpoena Officer Ackerberg for
trial. Defendant contends that Officer Ackerberg was a critical witness for purposes of
impeachment because his report regarding what Foley told him immediately after the shooting
depicts an entirely different version of events. Defendant attached to his appellate brief Officer
Ackerberg’s report of his encounter with Foley, which, as noted above, states in pertinent part:

       I asked FOLEY what had happened. He stated that he had been at the Sunoco
       Gas station at 8 Mile Road and John R Road, Detroit. He stated that he was
       “jumped” by 2 B/M’s (no description given). He stated that he was running to his
       car when he was shot in the back. He stated that he was able to get into his car
       and flee from the shooter/s to seek medical attention. FOLEY was not specific on
       what had led up to the shooting incident.

It is obvious from the record that defense counsel’s failure to subpoena Officer Ackerberg was
not the product of sound trial strategy. The fact that Foley gave an entirely different version of
events concerning what happened to him at the gas station—immediately after those events
occurred—is significant. As the trial court aptly quipped, “When was [this information] ever not
material?” It is especially significant given that Foley’s signed statement at the hospital also
does not identify defendant as the shooter, just the person whom he was at the gas station to
meet. On appeal, even the prosecution fairly concedes that defense counsel’s error “arguably”
fell below an objective standard of reasonableness because he mistakenly believed the officer
was part of the prosecution’s case in chief. Had defense counsel contacted Officer Ackerberg or
subpoenaed him for trial, he could have discerned whether the officer’s testimony would have
mirrored his report, and thus, been helpful to impeach Foley with an initial version of events that
differed from his subsequent, specific identification of defendant as the shooter.

        Because defendant is able to demonstrate that counsel’s performance was objectively
unreasonable, we turn to the more difficult issue: can defendant demonstrate prejudice? Having
reviewed the record and Officer Ackerberg’s report, we believe that he has demonstrated the
requisite level of prejudice. At the outset, we note that the only evidence linking defendant to
the shooting is Foley. Thus, Foley’s credibility was paramount to this case. And, we note that
the jury already had reason to question Foley’s credibility even without any information Officer
Ackerberg could have provided, given some of the discrepancies in Foley’s testimony and the
lack of specificity regarding defendant in Foley’s statements to police officers. For instance,
defense counsel undermined Foley’s credibility by highlighting differences in his trial testimony
and his pre-trial statements, such as his statement to police officers that he, not defendant,
arranged the drug transaction. This cast doubt on Foley’s contentions that defendant called him
and facilitated the drug transaction as a “set-up” to shoot him. In addition, Foley’s written
statement does not identify defendant as the shooter, only the person whom Foley was scheduled
to meet at the gas station at the time of the shooting. In fact, Foley’s statement refers to the
shooter simply as “a Guy”—not defendant or “J.R.” That Foley’s statement does not identify
defendant as the shooter is undeniably significant, as there is no indication in the record that
Foley ever attempted to be deceptive or obtuse with regard to the shooter’s identity because he

                                                -7-
was embarrassed about the fact that he was at the gas station to buy drugs. This fact lends
credence to defendant’s claim that Foley at some point decided that defendant must have had set
him up, and hence, he identified defendant as the shooter. Further casting Foley’s credibility in a
negative light is the prosecutor’s concession during closing argument that Foley “lost his cool”
during his testimony.

        As our Supreme Court has observed, “[w]here there is relatively little evidence to support
a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the
magnitude of errors necessary for a finding of prejudice will be less than where there is greater
evidence of guilt.” Trakhtenberg, 493 Mich at 56 (citation and quotation marks omitted). In this
case, Officer Ackerberg’s report—which contained Foley’s first statement after the shooting—
told a considerably different version of events than the version Foley presented at trial. The
report contained a different number of alleged perpetrators. It had Foley out of his vehicle and
being “jumped” by two black males, causing him to be “running to his car” when shot, instead of
sitting in his car being snuck up on by the shooter as observed through his rearview and side
mirrors. In addition, Foley’s statement to Officer Ackerberg that he was shot in the back while
running could also cast doubt on Foley’s ability to see who shot him. Furthermore, the line in
Officer Ackerberg’s report about Foley being “jumped” while at the gas station would have
provided crucial support for defendant’s theory in closing argument that Foley went to the gas
station with cash to purchase drugs and that unknown individuals saw the cash and seized the
opportunity to try and rob him.7 Without the assertion that Foley was “jumped” by two
individuals, defendant’s theory was essentially supported only by supposition and inferences that
the gas station, which was reported to be a high-crime area, could have harbored the types of
individuals who would have robbed him. However, with the assertion that Foley was “jumped,”
defendant’s theory would have gained considerably more traction.

       We believe that the information in Officer Ackerberg’s report is significant enough to
show that counsel’s failure to subpoena Officer Ackerberg deprived defendant of a substantial
defense, i.e., one that could have made a difference in the outcome of the trial. See Chapo, 283
Mich App at 371. This conclusion is supported by the fact that the jury was twice deadlocked.
While we acknowledge that the information in Officer Ackerberg’s report was additional
impeachment evidence, we do not agree with the prosecution’s assertion that anything Officer
Ackerberg could have added would have been merely cumulative impeachment evidence that
would not have made a difference at trial. The information contained in Officer Ackerberg’s
report was additional, not cumulative, impeachment that would have further called into question
Foley’s credibility in a case where he was the only eyewitness and only link pointing to
defendant in the case, thus making his credibility even more crucial to the outcome. We
conclude that there exists a reasonable probability that this additional impeachment witness “
‘would have tipped the scales in favor of finding a reasonable doubt about defendant’s guilt,’ ”
People v Trakhtenberg, 493 Mich at 57, quoting People v Armstrong, 490 Mich 281, 292; 806



7
 Police officers recovered $121 from the front seat of Foley’s car. Foley claimed to have only
$20 out of his wallet and placed by his leg in preparation for the drug exchange.


                                                -8-
NW2d 676 (2011), and that defendant can establish the requisite level of prejudice to warrant
reversal and a new trial.

         Reversed and remanded for a new trial. We do not retain jurisdiction.8



                                                             /s/ David H. Sawyer
                                                             /s/ Jane M. Beckering
                                                             /s/ Mark T. Boonstra




8
    Because of our resolution of this issue, we need not address defendant’s remaining arguments.


                                                 -9-
