                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 14, 2016
              Plaintiff-Appellee,

v                                                                  No. 321487
                                                                   Wayne Circuit Court
RODERICK LOUIS PIPPEN,                                             LC No. 10-006891-FC

              Defendant-Appellant.


Before: SAAD, P.J., and WILDER and MURRAY, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony, MCL 750.227b.1 The trial court sentenced defendant to life imprisonment for the felony-
murder conviction and a concurrent prison term of three to five years for the felon-in-possession
conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm
conviction. Defendant appeals as right. We affirm.

        On July 21, 2008, Brandon Sheffield was fatally shot during an apparent attempted
carjacking in Detroit. The victim was shot while seated in his Mercury Mountaineer with a
friend and two other individuals whom he just met the day before. The group was watching a
video on a laptop computer in the parked Mountaineer, with the engine running, when a gunman
approached the driver’s side and demanded that everyone get out. The victim was shot in the
head while still in the driver’s seat of the Mountaineer, which crashed into a tree.

       Defendant was arrested three months later after a Detroit police officer observed
defendant and Michael Hudson both throw guns under a vehicle in the area of Fairport and East
Seven Mile Road in Detroit. The officer claimed that the gun thrown by defendant was


1
  In a prior appeal, this Court reversed the predecessor judge’s earlier order dismissing the
charges against defendant, holding that the trial court erred in finding that the evidence at the
preliminary examination failed to establish probable cause that defendant committed the charged
offenses. People v Pippen, unpublished opinion per curiam of the Court of Appeals, issued
December 13, 2011 (Docket No. 300171).


                                               -1-
determined to be the gun used to shoot the victim. During the police investigation of defendant’s
associates after his arrest, an officer took a statement from Shane McDuffie regarding the
shooting incident. McDuffie testified at trial that he, Hudson, and defendant were driving around
on the night of the shooting, and that he saw defendant exit the front passenger seat of their
vehicle and shoot the victim.

        In his sole issue on appeal, defendant argues that defense counsel was constitutionally
ineffective for failing to investigate and call Hudson as a witness at trial to support his defense
theory that McDuffie’s testimony identifying defendant as the shooter was not credible. After
conducting a Ginther2 hearing, the trial court denied defendant’s motion for a new trial.

        Ineffective assistance of counsel is a mixed question of fact and constitutional law.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “A judge must first find the facts,
and then decide whether those facts constitute a violation of the defendant’s constitutional right
to effective assistance of counsel.” Id. An appellate court reviews the trial court’s findings of
fact for clear error and reviews questions of constitutional law de novo. Id.

        To establish ineffective assistance of counsel, defendant bears the burden of showing
both deficient performance and prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d
884 (2001). Counsel is presumed to have rendered adequate assistance and to have made all
significant decisions in the exercise of reasonable professional judgment. People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012). Defendant must establish that counsel’s performance fell
below an objective standard of reasonableness and that there is a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different. Id. at 669. A
reasonable probability is one sufficient to undermine confidence in the outcome of the
proceeding. People v Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015).

         Decisions regarding whether to call a witness are presumed to matters of trial strategy.
People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Counsel’s failure to call a
witness only constitutes ineffective assistance if it deprives the defendant of a substantial
defense. Id. “A substantial defense is one that might have made a difference in the outcome of
the trial.” People v Marshall, 298 Mich App 607, 612; 830 NW2d 414 (2012), vacated on other
grounds 493 Mich 1020 (2013). An appellate court will not evaluate counsel’s performance with
the benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). But a
court cannot completely insulate its review of counsel’s performance by calling it a matter of
trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). A court must
first determine whether counsel made a choice after less than a complete investigation. Id.
Counsel has a duty to make reasonable investigations or to reasonably decide that a particular
investigation is unnecessary. Id.

       “Counsel’s actions are usually based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the defendant.” Strickland v Washington, 466
US 668, 691; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Accordingly, “inquiry into counsel’s


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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conversations with the defendant may be critical to a proper assessment of counsel’s
investigation decisions.” Id. In this case, however, there was no testimony from either
defendant or trial counsel at the Ginther hearing regarding what information, if any, defendant
may have provided to counsel about the charges, or whether Hudson could provide defendant
with a defense.

        At the Ginther hearing it was undisputed that defendant’s family had hired a private
investigator, who had interviewed Hudson. Defense counsel was aware that McDuffie was
claiming that he was a passenger in a car driven by Hudson, which defendant exited before
approaching and then shooting the victim. Although the private investigator testified that he
informed defense counsel before trial that Hudson had told him that he had no involvement in the
shooting and that McDuffie was lying, defense counsel denied that he was informed of Hudson’s
proposed testimony by the private investigator. Defense counsel further testified that he never
had any intention of calling Hudson as a witness because (1) he believed that anyone who could
have been placed in the car by McDuffie “needed to be quiet,” (2) Hudson had been arrested
with defendant three months after the shooting incident, when an officer observed the two men
each toss a firearm underneath a car, which could provide evidence corroborating prosecution
witnesses and (3) defense counsel wanted to raise doubt about whether Hudson or defendant
actually had the weapon that was later linked to the victim’s murder, and (4) he assumed that
Hudson would be unwilling to say that he possessed the alleged murder weapon before tossing it
under a car.

        We agree with the trial court’s conclusion that it was sound strategy for defense counsel
not to call Hudson as witness. It was reasonable to conclude that Hudson’s credibility could be
attacked, and that his testimony would minimally confirm that McDuffie was honestly testifying
about who was present at the shooting and that Hudson and defendant were together three
months later when the murder weapon was found. And, it was reasonable for defense counsel to
believe that Hudson would not claim ownership to the gun found to have been used to shoot the
victim. For these reasons, defendant’s trial counsel was not ineffective for not calling or
interviewing Hudson when he knew the primary aspects of Hudson’s involvement with
defendant. Ackley, 497 Mich at 393.

        Defendant also failed to meet his burden of showing prejudice. Although the trial court
did not directly resolve this issue, it identified several factors that bear on the issue. As the trial
court observed, Hudson’s proposed testimony would have corroborated McDuffie’s testimony
that he, defendant, and Hudson knew each other. It also would have accentuated that guns were
discarded by both Hudson and defendant on October 18, 2008, one of which was the murder
weapon.3



3
  Contrary to defendant’s argument, the evidence does not indicate that defendant pleaded to
“possession of the firearm.” Rather, defense counsel stipulated that defendant made a prior
admission under oath regarding his possession of a firearm in the area of Fairport and East Seven
Mile Road, with the understanding that there were two firearms. Consistent with this stipulation,
defense counsel asserted in his opening statement that defendant “admitted he was in possession


                                                 -3-
        And just as Hudson denied being present during the shooting in his testimony at the
Ginther hearing, he also denied any knowledge of the Glock handgun seized by the police on
October 18, 2008, that was connected to the shooting. Hudson testified that he threw a .38
caliber gun and did not see defendant throw anything. Indeed, Hudson denied that he was
walking with defendant when the police arrived, which was contrary to the officer’s testimony
that he observed both Hudson and defendant step between two cars, and then separate after the
two guns were dropped. As a whole, Hudson presented himself at the Ginther hearing as a
friend of defendant, who could not or would not implicate defendant in any crime. And, if
Hudson had testified, the accomplice instruction that the trial court gave in relation to
McDuffie’s testimony would have similarly guided the jury’s evaluation of Hudson’s credibility.
In addition, Hudson had theft-related prior convictions that likely would have been admissible
for impeachment under MRE 609.

        The record also discloses that there was some circumstantial corroboration for
McDuffie’s identification of defendant as the shooter, beyond the evidence connecting defendant
to the murder weapon. Two individuals who were passengers in the Mountaineer when the
shooting occurred gave descriptions of the shooter’s height and build, which were consistent
with defendant. Assuming defense counsel failed to conduct a reasonable investigation
regarding Hudson’s value as a witness, defendant has failed to establish a reasonable probability
that it affected the outcome of the trial. Because Hudson would have strengthened the
prosecution’s evidence linking defendant to the murder weapon, and Hudson had his own
credibility issues, the absence of his proposed testimony does not undermine confidence in the
verdict. Accordingly, defendant has not demonstrated the requisite prejudice to establish
ineffective assistance of counsel.

       Affirmed.



                                                           /s/ Henry William Saad
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Christopher M. Murray




of one of the handguns, not the handgun that did the homicide, one of the handguns three months
later.”


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