                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 19, 2017
                Plaintiff-Appellee,

v                                                                  No. 332338
                                                                   Wayne Circuit Court
JERMAINE DEJUAN HEFLIN,                                            LC No. 15-000826-01-FC

                Defendant-Appellant.


Before: O’BRIEN, P.J., and JANSEN and MURRAY, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of first-degree felony murder,
MCL 750.316(1)(b), and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b(1). Defendant was sentenced to the mandatory two-year term of
imprisonment for the felony-firearm conviction, to be served consecutively to the term of life
imprisonment for the first-degree felony murder conviction. We affirm.

        Defendant first argues that he was denied the effective assistance of counsel because (1)
trial counsel did not move to exclude an identification of defendant by Treasure Glover-Smoot1
until the first day of trial, (2) trial counsel did not use police statements or other discovery
materials in defending the case, and (3) trial counsel did not cross-examine some witnesses or
make an opening statement. Defendant argues that he is entitled to a Ginther2 hearing or a new
trial in which Glover-Smoot and the other witnesses’ identifications of defendant would be
suppressed.

       Claims of ineffective assistance of counsel present mixed questions of law and fact.
People v Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). “A judge must first find the facts,


1
  Glover-Smoot was originally a codefendant in this case, and was charged with first-degree
felony murder, MCL 750.316(1)(b), second-degree murder, MCL 750.317, and felony-firearm,
MCL 750.227b. She negotiated a plea agreement with the prosecution and pleaded guilty to
larceny in a building, MCL 750.360. She was sentenced to three years’ probation, with the first
year spent in jail, and in exchange, had to testify in defendant’s case.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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then must decide whether those facts establish a violation of the defendant’s constitutional right
to the effective assistance of counsel.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011) (quotation marks and citation omitted). This Court reviews the trial court’s findings of
fact for clear error, and questions of constitutional law de novo. People v Trakhtenberg, 493
Mich 38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289.
If the issue of ineffective assistance of counsel is unpreserved, this Court’s review is limited to
the existing record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). Because
defendant did not file a motion seeking a new trial or an evidentiary hearing in the trial court,3
this issue was not preserved for appellate review. Id.

       To establish ineffective assistance of counsel, a defendant must show: “(1) counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” People v Lockett, 295 Mich App 165, 187; 814 NW2d
295 (2012). Effective assistance of counsel is “strongly presumed.” People v Vaughn, 491 Mich
642, 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). This Court will not
employ the “benefit of hindsight” to judge trial counsel’s performance. People v Unger, 278
Mich App 210, 243; 749 NW2d 272 (2008).

            I. FAILURE TO MOVE TO SUPPRESS IDENTIFICATION STATEMENT

        Defendant first argues that trial counsel provided ineffective assistance of counsel
because he did not move to suppress an identification Glover-Smoot made of defendant until the
first day of trial. While Glover-Smoot was in custody, she was shown one photograph of
defendant, rather than a “six pack”4 lineup. She identified defendant as the individual in the
photograph, and as the person that shot and killed Abdoul A. Alfassa-Kondo (Aziz) on
December 23, 2014, at Aziz’s home on Braile Street in Detroit. Defendant has not established
(1) that trial counsel’s handling of the motion to suppress fell below an objective standard of
reasonableness, or (2) that, but for trial counsel’s deficient performance, the result of defendant’s
trial would have been different. Lockett, 295 Mich App at 187.

        When an unduly suggestive identification procedure is used,5 suppression of the in-court
identification is appropriate, unless there is an independent basis for its admission. People v


3
  Defendant filed a motion to remand in this Court simultaneously with his brief on appeal. This
does not preserve the issue. Heft, 299 Mich App at 80. This Court denied defendant’s motion to
remand. People v Heflin, unpublished order of the Court of Appeals, entered November 3, 2016
(Docket No. 332338).
4
    A “six pack” lineup is a collection of photographs of six different individuals.
5
  To the extent defendant suggests, in a cursory fashion, that the procedure the police used to
secure Glover-Smoot’s identification was unduly suggestive, we disagree with this contention.
The record reflects that Officer Michael Russell of the Detroit Police Department used the
procedure that he did, presenting only one photograph to Glover-Smoot, because he was


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Gray, 457 Mich 107, 114, n 8; 577 NW2d 92 (1998). The admission of identification evidence
will not be reversed unless it is clearly erroneous, and “[c]lear error exists when the reviewing
court is left with the definite and firm conviction that a mistake has been made.” People v
Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.).

        Glover-Smoot pleaded guilty to the charge of larceny in a building, MCL 750.360, on
February 12, 2016. Defendant’s trial began on February 16, 2016. Trial counsel moved to
suppress Glover-Smoot’s identification statement as soon as trial began. The trial court allowed
trial counsel and the prosecution to prepare for the motion by holding the hearing on trial
counsel’s motion to suppress the next day, February 17, 2016. The jury was voir dired on
February 16, 2016. The motion hearing took place on February 17, 2016, with the testimony of
Officer Michael Russell of the Detroit Police Department, and continued on February 18, 2016,
with the testimony of Glover-Smoot. The trial court ultimately denied defendant’s motion to
suppress, concluding that an independent basis existed for Glover-Smoot’s identification of
defendant, and allowed her to testify at trial.

        As an initial matter, defendant has not established that trial counsel’s performance fell
“below an objective standard of reasonableness under prevailing professional norms[.]” Lockett,
295 Mich App at 187. Trial counsel learned that Glover-Smoot pleaded guilty on a Friday, with
trial beginning the following Tuesday. This was the very first issue that trial counsel raised
before the trial court when the trial began. The trial court promptly began the hearing on this
motion the very next day. Trial counsel did not wait to move for suppression of Glover-Smoot’s
identification until it was “too late,” as defendant argues, but rather, promptly addressed the issue
at the outset of trial.

        Defendant also has not demonstrated that, but for trial counsel moving to suppress
Glover-Smoot’s identification at the time of trial, there is a reasonable probability that his trial
would have turned out differently. Id. Instead, defendant merely asserts that had Glover-
Smoot’s identification been suppressed, the other witnesses would not have similarly identified
defendant as the individual who shot and killed Aziz. This argument is unconvincing. First, trial
counsel asked the trial court for an order of sequestration, and the trial court dismissed all
potential witnesses from the courtroom before taking testimony. Additionally, the other
witnesses who identified defendant were not in the courtroom while Glover-Smoot testified.
Further, Glover-Smoot turned herself in to the police the day after the shooting occurred, and she
was in custody until she pleaded guilty four days before trial. Moreover, Glover-Smoot,
Brankica (“Bree”) Vukojevic, and Lamonttez Woodard all identified defendant in court as being
present at Aziz’s home on December 23, 2014. Vukojevic and Woodard saw defendant with a
gun, heard the shot, and saw Aziz run out of the home. Multiple witnesses heard defendant say
to Aziz that he was shot for raping defendant’s sister. After the shooting, defendant told
Woodard that he shot Aziz because Aziz was raping defendant’s sister. Accordingly, there was


informed by Glover-Smoot that she was already well-familiar with defendant. To the extent that
defendant suggests that the trial court erred in allowing Glover-Smoot’s identification, we also
disagree where the trial court correctly noted that Glover-Smoot spent time with defendant
before and after the shooting, allowing her ample opportunity to see and recognize defendant.


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ample evidence, independent of Glover-Smoot’s identification, to support defendant’s
conviction.

                      II. FAILURE TO USE DISCOVERY MATERIALS

        Defendant next argues that trial counsel did not use Crisnet statements, other statements,
or discovery materials to defend the case. However, defendant acknowledges that he is still
attempting to obtain discovery materials, will file a motion to compel discovery, and once such
materials are received, will add to this argument. A copy of such a motion has not been filed in
this Court. Defendant also does not specify what statements or discovery materials should have
been used at trial, or how defendant was prejudiced by the failure of trial counsel to use these
materials. We note that “[b]ecause . . . defendant bears the burden of demonstrating both
deficient performance and prejudice, . . . defendant necessarily bears the burden of establishing
the factual predicate for his claim” of ineffective assistance of counsel. People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). Defendant simply has not met this burden. Further, by
advancing a cursory and unsupported argument, defendant has not properly briefed this issue on
appeal. A party’s failure to properly brief an issue on appeal amounts to abandonment of the
issue. People v McGraw, 484 Mich 120, 131 n 36; 771 NW2d 655 (2009). Defendant’s
argument in this regard is, therefore, unavailing.

   III. FAILURE TO GIVE OPENING STATEMENT OR CROSS-EXAMINE WITNESSES

        Defendant next argues that remand to the trial court for a Ginther hearing is required so
that this Court can determine whether trial counsel’s failure to give an opening statement or
cross-examine witnesses was the product of trial strategy. Defendant notes that trial counsel did
not cross-examine William Hopes, who witnessed the shooting, but could not identify defendant
as the shooter during trial. Aside from Hopes, defendant does not refer to any of the other
witnesses that testified for the prosecution.

        Trial counsel has wide discretion regarding strategy at trial “because counsel may be
required to take calculated risks to win a case.” Heft, 299 Mich App at 83. This Court will not
substitute its judgment for that of trial counsel concerning matters of trial strategy. See
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). The fact that a trial strategy is
ultimately unsuccessful does not render it ineffective assistance of counsel. People v Petri, 279
Mich App 407, 412-413; 760 NW2d 882 (2008). Defendant must overcome the strong
presumption that trial counsel’s performance was the result of sound trial strategy. People v
Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).

       “The decision when to make an opening statement is a matter of trial strategy over which
counsel is given wide discretion.” People v Odom, 276 Mich App 407, 416; 740 NW2d 557
(2007). Waiving an opening statement involves “ ‘a subjective judgment on the part of trial
counsel which can rarely, if ever, be the basis for a successful claim of ineffective assistance of
counsel.’ ” Payne, 285 Mich App at 190, quoting People v Pawelczak, 125 Mich App 231, 242;
336 NW2d 453 (1983). In Payne, this Court held that trial counsel’s performance did not fall
below an objective standard of reasonableness where trial counsel declined to give an opening
statement. Payne, 285 Mich App at 190. In the present case, trial counsel reserved his right to

                                                -4-
make an opening statement at the beginning of trial, but ultimately never gave one. However,
this decision was one that lay within trial counsel’s subjective judgment. Id. While it is unclear
from the record why trial counsel chose not to give an opening statement, defendant simply has
not overcome the “strong presumption” that trial counsel’s decision was the product of sound
trial strategy. Horn, 279 Mich App at 39. Accordingly, we are not persuaded that trial counsel’s
failure to give an opening statement amounted to ineffective assistance of counsel. Payne, 285
Mich App at 190.

        Defendant also argues that trial counsel rendered ineffective assistance of counsel by not
cross-examining witnesses. “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy . . . .”
Horn, 279 Mich App at 39. This Court will not second-guess such matters of trial strategy. Id.
The failure to call or question witnesses constitutes ineffective assistance of counsel only when it
deprives the defendant of a “substantial defense.” People v Russell, 297 Mich App 707, 716;
825 NW2d 623 (2012). “A substantial defense is one that might have made a difference in the
outcome of the trial.” People v Jackson (On Reconsideration), 313 Mich App 409, 432; 884
NW2d 297 (2015) (quotation marks and citation omitted).

        Trial counsel did cross-examine Aziz’s brother, the assistant medical examiner, an
employee of the Red Roof Inn, Glover-Smoot, Woodard and Vukojevic. Trial counsel did not
cross-examine Hopes, or the two Detroit police officers who testified at trial. However,
defendant has not demonstrated that the failure of trial counsel to cross-examine these witnesses
deprived defendant of a substantial defense. Russell, 297 Mich App at 716. Defendant only
notes that trial counsel failed to cross-examine Hopes, who witnessed the shooting, but could not
identify defendant as the shooter. We are not persuaded that trial counsel’s failure to cross-
examine Hopes deprived defendant of a substantial defense to the extent that the outcome of trial
was impacted. Jackson, 313 Mich App at 432. Significantly, multiple other witnesses identified
defendant as the person that shot and killed Aziz. Specifically, Glover-Smoot testified that she
saw defendant shoot Aziz. Woodard testified that he saw defendant with a gun in the moments
after Aziz’s shooting, and that defendant followed the injured Aziz out of the home after the
shooting, stating to Aziz, “[t]hat’s what you get for raping my sister.” Vukojevic’s testimony
was consistent with Woodard’s, where she stated that defendant entered the home with a gun, a
gunshot rang out, and Aziz came running outside after being shot with defendant following,
telling Aziz, “that’s for raping my sister.” Thus, defendant has not demonstrated that trial
counsel’s failure to cross-examine Hopes deprived defendant of a substantial defense, and we
therefore reject his claim of ineffective assistance of counsel on this basis.

       Affirmed.



                                                             /s/ Colleen A. O'Brien
                                                             /s/ Kathleen Jansen
                                                             /s/ Christopher M. Murray




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