              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 28, 2019
                Plaintiff-Appellee,

v                                                                   No. 337259
                                                                    Wayne Circuit Court
SHAWN JOEL HOPKINS,                                                 LC No. 16-002024-01-FH

                Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       After a jury trial, defendant was convicted of possession with intent to deliver 50 or
more, but less than 450 grams of cocaine (possession with intent to deliver cocaine), MCL
333.7401(2)(a)(iii), possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b, and possession of marijuana, MCL 333.7403(2)(d). The trial court sentenced
defendant to five years’ probation for the possession with intent to deliver cocaine conviction,
two years’ imprisonment for the felony-firearm conviction, and one day, time served, for the
possession of marijuana conviction. Defendant appealed and we granted his motion to remand
for a Ginther1 hearing to determine whether he was denied the effective assistance of counsel. 2
On remand, the trial court concluded that defendant had not been denied the effective assistance
of counsel and denied his motion for a new trial. We affirm.

                                       I. BACKGROUND

         The Detroit Police Department received tips that someone named Shawn was engaged in
drug activity at two separate locations. Officer Cheryl Muhammad testified that she received a
tip that there was a large amount of cocaine at a Larned Street apartment. After receiving the tip,


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Hopkins, unpublished order of the Court of Appeals, issued May 19, 2017 (Docket
No. 337259).



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Muhammad conducted surveillance at the Larned apartment on August 13 and 14, 2015. During
that time, Muhammad observed defendant exit the apartment and engage in what she believed to
be drug transactions. Officer Juan Davis testified that he received a tip about narcotics activity at
a residence on La Salle Street. Davis conducted surveillance at that location on August 14, 2015,
and observed defendant leave the address and drive to a gas station where he engaged in what
Davis believed were drug transactions.

        The officers obtained search warrants for both locations. The Larned apartment was
unoccupied, but Muhammad found cocaine in the kitchen area, as well as cocaine and marijuana
in the bedroom area. Officers also found a firearm and cell phone bill with defendant’s name on
it. Officers then executed a search warrant for the La Salle address. The mother of defendant’s
child was present among others. Officers found three firearms and $55,000, which the officers
confiscated because it was suspected narcotics proceeds. At both locations, officers found men’s
clothing that they believed would have fit defendant.

                                     II. GINTHER HEARING

        Defendant’s claim of ineffective assistance of counsel primarily concerns trial counsel’s
decision not to call defendant’s brother, Jamel Hopkins. Jamel testified at the evidentiary
hearing that the Larned apartment was in his name as of August 14, 2015. Although Jamel said
that he did not live at the apartment, he testified that he was at the apartment for most of that day
and that defendant was not there. Jamel permitted defendant to use the apartment and lent him a
key on several occasions. Jamel testified that he did not know who owned the cocaine and
marijuana that was found at the apartment.

        Trial counsel testified to his decision not to call Jamel as a witness. Counsel said that he
spoke to Jamel before trial but did not recall Jamel saying that he was at the apartment on August
14 and that defendant was not there. Counsel did not think that it was important that Jamel was
the lessee of the apartment because “[w]hat mattered was, who was at the apartment.” When
asked why he had Jamel stand at trial during Muhammad’s testimony, counsel explained that he
was trying to demonstrate that the officer could not tell the brothers apart and that the main issue
in the case was identification. Counsel was then asked why he chose not to call Jamel as a
witness, and he answered that he thought Jamel could be charged as a felon in possession of a
firearm if he testified given the gun found in his apartment. Counsel said that he shared that
belief with defendant and that defendant agreed that Jamel should not be called as a witness.
Later in the hearing, counsel said that he also had concerns that Jamel’s testimony would be
perjury. Specifically, counsel feared that Jamel would say that the items at the apartment
belonged to him when counsel’s conversations with defendant indicated that he owned the items.

        In concluding that defendant received effective assistance of counsel, the trial court found
credible counsel’s testimony that Jamel would have committed perjury. The court also found
that counsel believed that the gun belonged to defendant, not to Jamel. The court reasoned that
failure to present perjured testimony cannot constitute ineffective assistance of counsel. The
court also concluded that Jamel’s testimony would not have helped defendant’s defense in part
because Jamel’s testimony would have established that he was a felon who could not legally
possess a firearm and that defendant had free access to the Larned apartment. The court also
rejected defendant’s argument that counsel was not adequately prepared for trial because the


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record from the hearing established that counsel spent adequate time preparing for trial and that
he met with all of the witnesses who testified at the hearing.

                                          III. ANALYSIS

        “Whether defense counsel performed ineffectively is a mixed question of law and fact;
this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions
of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A
finding is clearly erroneous if it leaves this Court with a definite and firm conviction that the trial
court made a mistake.” People v Dillon, 296 Mich App 506, 508; 822 NW2d 611 (2012).

         To establish a claim of ineffective assistance of counsel, defendant must demonstrate that
trial counsel’s performance fell below an objective standard of professional reasonableness, and
that there is a reasonable probability that, in the absence of counsel’s unprofessional errors, the
outcome of the proceedings would have been different. People v Grant, 470 Mich 477, 485-486;
684 NW2d 686 (2004). Counsel is presumed to be effective, and a defendant bears a heavy
burden to demonstrate otherwise. People v Dixon, 263 Mich App 393, 396; 688 NW2d 308
(2004). An attorney’s decision regarding whether to call a witness is presumed to be a matter of
trial strategy. People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015). “Trial
counsel’s failure to a call a witness is only considered ineffective assistance if it deprived the
defendant of a substantial defense. A substantial defense is one that could have affected the
outcome of the trial.” Id. (citation omitted).

        Defendant argues that trial counsel’s decision to not present Jamel as a defense witness
fell below an objective standard of reasonableness. Defendant first contends that counsel
provided two mutually exclusive reasons for not calling Jamel as a witness: (1) that Jamel’s
testimony would result in the prosecutor bringing a felon in possession charge against him, and
(2) that Jamel’s testimony about his ownership of the gun and drugs would be perjury. To the
contrary, counsel’s belief that Jamel would have falsely testified the he owned the gun is fully
consistent with a belief that this testimony could result in the prosecution filing charges against
Jamel for being a felon in possession of a firearm. Thus, counsel’s stated reasons for not calling
Jamel were not in conflict.

        Next, defendant argues that counsel placed Jamel’s interests ahead of defendant’s
interests because counsel was concerned about the potential negative consequences to Jamel
rather than focusing on the positive effect Jamel’s testimony could have on defendant’s case.
This argument overlooks the fact that counsel testified that defendant agreed that Jamel should
not testify given his prior felony conviction. Setting that aside, even if we agreed with defendant
that counsel’s consideration of Jamel’s interests was improper, counsel still provided a proper
reason for not calling Jamel. The Rules of Professional Conduct prohibit a lawyer from offering
evidence “that the lawyer knows to be false.” MRPC 3.3(a)(3). Further, “an attorney’s refusal to
knowingly assist in the presentation of perjured testimony is not only consistent with his ethical
obligations, but cannot be the basis of a claim of ineffective assistance of counsel.” People v
Toma, 462 Mich 281, 303 n 16; 613 NW2d 694 (2000). The trial court found counsel’s concerns
that Jamel would falsely testify to be credible, and we generally defer to the trial court’s special
opportunity to observe witnesses. People v Galloway, 259 Mich App 634, 638; 675 NW2d 883
(2003); MCR 2.613(C). Defendant provides no basis for us to overturn the trial court’s


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credibility determination. Thus, we conclude that the trial court did not clearly err in finding
that counsel believed that Jamel’s testimony would be perjury, and defendant fails to establish
that he was denied effective assistance of counsel.

        Even assuming that counsel was ineffective for not calling Jamel as a witness, defendant
has not established that he was denied a substantial defense. While Jamel would have testified
that he was the only individual present at the Larned apartment on August 14, 2015, he offered
no testimony to refute Muhammad’s testimony that she saw defendant engaging in narcotics
transactions at the Larned apartment of August 13, 2015. Jamel’s testimony also established that
defendant had free access to the apartment, and the cell phone bill bearing defendant’s name
indicated his recent presence. In addition, Jamel testified that he did not know who owned the
drugs that were found in his apartment. Thus, defendant has not established a reasonable
probability that Jamel’s testimony would have led to a different outcome at trial.

        Finally, defendant argues that trial counsel did not adequately prepare for trial because he
failed to investigate or interview Jamel before trial. The trial court, however, found that counsel
adequately prepared for trial because he spent time preparing for trial and met with Jamel before
the trial started. This finding is supported by counsel’s testimony at the Ginther hearing
regarding the amount of time he spent preparing for trial and formulating his trial strategy, as
well as his testimony that he met with Jamel prior to the start of defendant’s trial. For those
reasons, defendant has not established that his counsel failed to adequately prepare for trial.

       Affirmed.



                                                             /s/ Jonathan Tukel
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael F. Gadola




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