                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 15, 2016
              Plaintiff-Appellee,

v                                                                  No. 324268
                                                                   Wayne Circuit Court
ANTHONY HOLT,                                                      LC No. 14-004742-FH

              Defendant-Appellant.


Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.


PER CURIAM.

        Defendant appeals as of right his jury trial conviction of breaking and entering with the
intent to commit larceny, MCL 750.110. The trial court sentenced defendant as a fourth habitual
offender, MCL 769.12, to 3-1/2 to 20 years’ imprisonment. We affirm.

        A jury convicted defendant of breaking and entering the Detroit home of his neighbor,
Ieshia Reynolds, with the intent to commit larceny, on April 5, 2014. The prosecution presented
evidence that Reynolds purchased the home and had begun moving items onto the property
before April 5, although she had not completely moved in. On April 5, as Reynolds returned to
the house, she observed defendant in her garage, which she had secured before leaving; he was
placing items into her child’s old playpen. Reynolds confronted defendant, who responded by
stating that he was taking “his stuff.” Reynolds cautioned defendant to leave her property, and
defendant dragged the playpen of items, which included a microwave oven and wicker shelves,
to his house. Because Reynolds was new to the neighborhood, afraid, and thought it might be a
misunderstanding, she did not initially report the April 5 incident to the police. She later
contacted the police on April 18, after she returned home and found that numerous items had
been removed from inside her house. The defense theory at trial was that defendant did not
intend to commit larceny because he had permission from the previous homeowner to enter the
garage and take certain items.

       Defendant first argues that he was denied the effective assistance of counsel. We
disagree. To preserve a claim of ineffective assistance of counsel, a defendant must make a
motion for a new trial or an evidentiary hearing with the trial court. People v Heft, 299 Mich




                                               -1-
App 69, 80; 829 NW2d 266 (2012). Defendant never moved for a new trial or a Ginther1
hearing in the trial court. Defendant filed a motion for a Ginther hearing with this Court, which
was denied for failure to persuade the Court of a necessity for a remand.2 When an ineffective
assistance of counsel claim is unpreserved, “this Court’s review is limited to mistakes apparent
from the record.” Id.

        “To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290;
806 NW2d 676 (2011). “To demonstrate prejudice, a defendant must show the probability that,
but for counsel’s errors, the result of the proceedings would have been different.” Nix, 301 Mich
App at 207. It is presumed that trial counsel used effective trial strategy, and a defendant has a
heavy burden to overcome this presumption. People v Payne, 285 Mich App 181, 190; 774
NW2d 714 (2009).

        Specifically, defendant asserts that defense counsel was ineffective for failing to request a
jury instruction on the necessarily included lesser offense of breaking and entering without
permission, particularly where the defense did not contest that defendant was in Reynolds’s
garage on April 5. Breaking and entering without permission is a necessarily included lesser
offense of breaking and entering with intent to commit larceny; the distinguishing element
differentiating the greater offense from the lesser offense is the intent to commit a larceny.
People v Cornell, 466 Mich 335, 360-361; 646 NW2d 127 (2002). Defendant has not, however,
overcome the presumption that defense counsel employed reasonable trial strategy in not
requesting the instruction. At trial, defense counsel vigorously argued that defendant had no
larcenous intent. Based on the record, counsel could have reasonably chosen to not mitigate the
charged greater offense by requesting that the jury be instructed on a lesser offense, but to
instead strive for complete acquittal of that charge. “The decision to proceed with an all or
nothing defense is a legitimate trial strategy.” People v Nickson, 120 Mich App 681, 687; 327
NW2d 333 (1982). Defense counsel has wide discretion regarding matters of trial strategy,
People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012), and “[t]his Court will not second-
guess defense counsel’s judgment on matters of trial strategy.” People v Benton, 294 Mich App
191, 203; 817 NW2d 599 (2011). The fact that the strategy chosen by defense counsel did not
work does not constitute ineffective assistance of counsel. People v Petri, 279 Mich App 407,
412; 760 NW2d 882 (2008). Accordingly, defendant has not overcome the strong presumption
that defense counsel provided constitutionally effective assistance in this regard. Payne, 285
Mich App at 190.

        We acknowledge defendant’s attempt to establish the factual predicate for this claim with
an affidavit from his appellate counsel, which was filed with defendant’s motion to remand. In


1
    See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Holt, unpublished order of the Court of Appeals, entered September 30, 2014 (Docket
No. 324268).


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the affidavit, appellate counsel avers that, based on a “phone interview,” she “believes” that
defense counsel would testify on remand “that she did not ask for the lesser offense of Breaking
and Entering without Owner’s permission because she did not think that she could have asked
for it but that if it was a cognate then maybe she should have.” (Emphasis added.) While an
affidavit was required to be filed with defendant’s motion to remand, MCR 7.211(C)(1), it is
“impermissible to expand the record on appeal.” People v Powell, 235 Mich App 557, 561 n 4;
599 NW2d 499 (1999). But even if we consider the affidavit, what appellate counsel believes
trial counsel thinks she maybe should have done is insufficient to establish the factual predicate
for defendant’s claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Further,
even accepting that defense counsel admitted that she made a mistake, defendant must still show
that it is reasonably probable that counsel’s deficient performance affected the outcome of the
proceeding. Nix, 301 Mich App at 207. Although defendant argued that the prior owner gave
him permission to remove items from the garage, he presented no evidence to substantiate his
claim. Rather, he relied on his mother’s testimony that he had helped the prior owner move out
of the house in March, but this testimony does not prove that defendant had permission to take
items out of the garage in April, especially given Reynolds’s testimony that she confronted
defendant while he was in her garage and told defendant that those were her belongings.
Defendant is not entitled to a new trial on the basis of ineffective assistance of counsel.

        Defendant next argues that the trial court deprived him of his Sixth Amendment right to
counsel when it did not allow him to consult with his attorney before deciding whether to testify
or not testify. Again, we disagree. Because defendant did not raise this constitutional claim
below, the issue is unpreserved. We review unpreserved constitutional claims for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 752-753, 763-764; 597
NW2d 130 (1999).

        The Sixth Amendment right to counsel attaches to criminal prosecutions when the
judicial process is initiated and extends to every “critical stage” of the proceeding. People v
Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). The core of this right includes the
opportunity for a defendant to consult with an attorney. Kansas v Ventris, 556 US 586, 590; 129
S Ct 1841; 173 L Ed 2d 801 (2009). A critical stage is “where counsel’s absence might harm
defendant’s right to a fair trial.” People v Buie (On Remand), 298 Mich App 50, 61; 825 NW2d
361 (2012) (citation omitted). “It is well established that a total or complete deprivation of the
right to counsel at a critical stage of a criminal proceeding is a structural error requiring
automatic reversal.” People v Willing, 267 Mich App 208, 224; 704 NW2d 472 (2005).

         After the people rested, the following exchange occurred outside the presence of the jury
as the trial court advised defendant of his right to testify or not testify:

              The Court: Now, you’ve had the opportunity of discussing the advisability
       of your testifying or not testifying with your counsel, Mrs. Leslie Cooper, is that
       true?

               Defendant: Yes, sir.

              The Court: The decision, however, to give testimony or not give
       testimony is not [defense counsel’s] to make. It’s yours. Do you understand that?

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                 Defendant: Yes, sir.

               The Court: Knowing that, have you made some decision as to whether you
       will or will not testify?

                 Defendant: Yes, sir.

                 The Court: And what is that?

             Defense counsel: He’s been hesitant about this decision. We haven’t had
       a moment to talk about it.

                 The Court: Well, this is the time. You’ve got to fish or cut bait now.

                 Defendant: Can I talk to—

                 Defense counsel: What do you want to do?

                 Defendant:   Judge Callahan, I’m going to remain silent.         [Emphasis
       added.]

         This record discloses that before defense counsel interjected, defendant unequivocally
stated that he had already had the opportunity to discuss with his attorney whether he should
testify, and he also unequivocally expressed that he had reached a decision about whether or not
to testify.3 Defendant’s own statements belie his claim that he was denied an opportunity to
consult with his attorney. Regarding defense counsel’s contrary interjection that they had not
had “a moment to talk about it,” counsel also stated that defendant “has been hesitant about this
decision,” thereby indicating that they had discussed the matter. The trial court’s “fish or cut
bait” statement was made in response to defense counsel’s remark about defendant being
hesitant, but when counsel again asked defendant what he wanted to do, defendant unequivocally
stated that he wanted to “remain silent.” The court did not prevent defendant from consulting
with counsel, but rather reasonably determined from defendant’s unequivocal responses that he
had already done so and had reached a decision about whether to testify. Defendant was not
deprived of his constitutional right to counsel, and there was no plain error.

        Defendant next argues that the prosecutor engaged in misconduct that denied him a fair
trial when she “muttered” and displayed “open mockery of trial counsel’s mannerisms and cross
examination.” We disagree. We review de novo preserved claims of prosecutorial misconduct,
examining the challenged conduct in context to determine whether the defendant was denied a
fair and impartial trial. People v Fyda, 288 Mich App 446, 460; 793 NW2d 712 (2010).




3
  “Although counsel must advise a defendant of this right, the ultimate decision whether to testify
at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d
217 (2011).


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        “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “A defendant’s
opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than
the defendant’s guilt or innocence.” Id. at 63-64. “A prosecutor cannot personally attack the
defendant’s trial attorney because this type of attack can infringe upon the defendant’s
presumption of innocence.” People v Kennebrew, 220 Mich App 601, 607; 560 NW2d 354
(1996).

       Outside the presence of the jury, defense counsel complained about the prosecutor’s
“muttering” during trial and the trial court directed the parties to act civilly. However, there is
no evidence of what statements the prosecutor actually muttered, and nothing to show that the
jury heard those muttered comments. The trial court cautioned the parties to refrain from “any
snipping at the back or comments” “that the jury might hear.” (Emphasis added.) Although
defense counsel characterized the prosecutor’s conduct as unprofessional and inappropriate, she
did not identify the substance of the prosecutor’s comments on the record, and she did not
request a mistrial or identify a need for any curative action, such as asking the trial court to
address the prosecutor’s comments when the jury returned to the courtroom, or requesting an
evidentiary hearing to determine whether jurors actually heard the muttering. In the absence of a
record showing that defendant was prejudiced by the prosecutor’s conduct, defendant cannot
show that he was denied a fair trial by the prosecutor’s “muttering.”

        Defendant raised two additional objections regarding the prosecutor’s unspecified
“behavior,” which defense counsel described as “inappropriate” and “outrageous.” Again,
however, defense counsel did not make a record of what specifically the prosecutor was doing,
and the trial court overruled defendant’s objections. Even if we consider appellate counsel’s
affidavit, in which appellate counsel avers that trial counsel indicated that “the prosecution was
mocking her gestures in front of the jury,” without any development of the record to show what
effect, if any, this behavior had on the jury, there is no basis for concluding that defendant
suffered any prejudice.

        Moreover, the trial court instructed the jury that the lawyers’ statements were not
evidence that the jury was to decide the case based only on the properly admitted evidence, and
that the jury was to follow the court’s instructions. These instructions were sufficient to dispel
any possible prejudice and to protect defendant’s substantial rights. People v Long, 246 Mich
App 582, 588; 633 NW2d 843 (2001). It is well established that jurors are presumed to follow
their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Defendant has
not shown that the prosecutor’s conduct denied him a fair trial.4



4
  We note that the jury convicted defendant of one of two charges related to the April 5 incident,
and acquitted him of all charges related to the April 18 incident. Although defendant contends
that the prosecutor’s “mockery of defense counsel drew [the jury’s] attention away from the facts
of the case,” the fact that the jury acquitted defendant of all charges related to the April 18
incident supports that the jury focused on the evidence and followed the trial court’s instructions.


                                                -5-
       Lastly, defendant argues that defense counsel was ineffective for not calling either Briana
Terry or Roderick Reese in support of his defense that he had permission from the previous
homeowner to remove items from the garage, and therefore, had no larcenous intent. We
disagree.

        Defendant attempts to establish the factual predicate for this claim with the affidavit of
appellate counsel, who avers that pursuant to her interviews of the witnesses, Terry and Reese
both would have testified that they were present when the prior owner told defendant that he
could have whatever belongings were left in the home after she moved out. This affidavit also
discloses that defense counsel was aware of Terry and Reese, considered calling them as
witnesses at trial, but declined to do so. “Decisions regarding 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), and, as previously indicated, “this Court will not second-guess
defense counsel’s judgment on matters of trial strategy.” Benton, 294 Mich App at 203. The
failure to present a witness can constitute ineffective assistance only where it deprives the
defendant of a substantial defense. Payne, 285 Mich App at 190.

        Defendant has not overcome the strong presumption that counsel chose not to call Terry
or Reese at trial as a matter of strategy. In the affidavit relied on by defendant, appellate counsel
averred that defense counsel advised her that “the only witnesses she was able to get ahold of
would only be able to testify to hearsay so no witnesses were called.” Given that the witnesses’
proposed testimony would have been hearsay because it involved the prior owner’s out-of-court
statement and offered to prove the truth of the matter asserted, MRE 801, defense counsel’s
decision to forego calling these witnesses was not objectively unreasonable.5 Nix, 301 Mich App
at 207. Further, defendant has not provided a witness affidavit from Reese or Terry, or identified
any other evidence of record establishing that the witnesses actually could have provided
favorable testimony at trial. Carbin, 463 Mich at 600. Accordingly, defendant’s claim fails.

       Affirmed.

                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Stephen L. Borrello




5
 Notably, defendant does not challenge the propriety of counsel’s reason for not calling the
witnesses.


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