                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 9, 2016
               Plaintiff-Appellee,

v                                                                  No. 326841
                                                                   St. Clair Circuit Court
STEPHEN LEE DOWNS,                                                 LC No. 14-002025-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of operating while
intoxicated, third offense, MCL 257.625(1), and operating with a suspended license,
MCL 257.904(1). The trial court sentenced defendant as a third felony offender under the motor
vehicle code, MCL 257.625(9), and as a fourth habitual offender, MCL 769.12, to 2 to 20 years’
imprisonment for his operating while intoxicated conviction, and to time served for his operating
with a suspended license conviction. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         During the early morning hours of July 28, 2014, defendant arrived at Murphy’s Inn, a
bar and restaurant in St. Clair, Michigan. Defendant was served two beers before Paul
Brunhuber, the owner of Murphy’s Inn, believing defendant to be intoxicated, directed his
employees not to serve defendant any more alcohol. As defendant prepared to leave the inn,
Brunhuber offered to arrange transportation home for defendant. Defendant refused and began
walking to his car, a white Trans-Am. Brunhuber followed defendant to his car and informed
defendant that he would call the police if defendant attempted to drive home. As defendant got
into his car, Brunhuber called 911 and told the operator that one of his patrons was attempting to
drive home drunk. Brunhuber testified that he was right next to defendant’s vehicle when he
called 911. Defendant then drove over a parking block and out of the parking lot. Brunhuber
testified that defendant was alone throughout the entire incident.

        Shortly thereafter, William Sedwick observed a white Trans-Am traveling at a high rate
of speed as it approached the intersection of Wadhams and Gratiot. The Trans-Am ran through a
flashing red light, went off the road, and struck a tree. Sedwick parked his vehicle at an auto
repair shop across the street from the crash and called 911. Sedwick then drove over to the

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scene, where he observed defendant behind the wheel of the Trans-Am. Sedwick testified that
the Trans-Am was severely damaged, and that defendant did not appear to comprehend the
severity of the accident, in light of defendant’s request that Sedwick give his car “a jump.”

         Deputy Curtis Spens of the St. Clair County Sheriff’s Department arrived at the scene of
the accident. Spens had been notified by his dispatcher to be on the lookout for a white Trans-
Am that had left Murphy’s Inn. Spens observed defendant standing near a van that had stopped
at the scene of the accident. Defendant informed Spens that his wife, Lynn Downs, was driving
at the time of the accident and that she had been picked up from the scene of the accident by his
daughter, Korren Downs, to seek help. After defendant refused a field sobriety test, Spens
placed him under arrest. A subsequent blood test revealed that defendant had 0.259 grams of
alcohol per 100 milliliters of blood shortly after the accident.

         Defendant was convicted as described above. This appeal followed.

                                 II. STANDARD OF REVIEW

        Whether defendant received ineffective assistance of counsel is a mixed question of fact
and constitutional law. People v LeBlanc, 465 Mich 575, 5579; 640 NW2d 246 (2002). We
review de novo the ultimate constitutional issue arising from an ineffective assistance of counsel
claim. Id. We review for clear error any findings of fact. Id. Defendant moved this Court to
remand for a Ginther1 hearing on the issue of his counsel’s effectiveness, which this Court
denied.2 Our review of defendant’s claim of ineffective assistance of counsel is therefore limited
to mistakes apparent on the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342
(2005).

                                         III. ANALYSIS

        Defendant argues that several errors by his trial counsel denied him the right to the
effective assistance of counsel. We disagree.

        In order to prevail on a claim of ineffective assistance of counsel, “a defendant must
show that counsel’s performance fell below an objective standard of reasonableness, and that the
representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens,
446 Mich 298, 338; 521 NW2d 797 (1994). In order for the defendant to show prejudice, “a
court must conclude that there is ‘a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.’ ” Pickens, 446 Mich at 312, quoting
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Because of
the difficulties inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland,


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Downs, unpublished order of the Court of Appeals, entered October 22, 2015 (Docket
No. 326841).


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466 US at 689. “This Court will not substitute its judgment for that of counsel regarding matters
of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v
Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).

        Defendant first argues that his trial counsel was ineffective in failing to call an expert to
testify regarding the noise level made by a Trans-Am with the specifications of defendant’s
vehicle. Defendant argues that this testimony would have contradicted Brunhuber’s claim that
he was right next to defendant’s car when he called 911 because noise from the car could not be
heard on the 911 recording. However, “[a]n attorney’s decision whether to retain witnesses,
including expert witnesses, is a matter of trial strategy.” People v Payne, 285 Mich App 181,
190; 774 NW2d 714 (2009). A defense attorney’s failure to call a witness can only constitute
ineffective assistance of counsel if it deprives the defendant of a substantial defense. Id. (citation
and quotation marks omitted). “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).

        Here, defendant has not identified an expert who would testify in contradiction of
Brunhuber’s testimony, nor has he otherwise made an offer of proof in support of this claim.
Defendant has therefore failed to establish a factual predicate for it. See People v Hoag, 460
Mich 1, 6; 594 NW2d 57 (1999). Further, even assuming such an expert witness existed and
would testify that the sound of the Trans-Am would have been audible on the 911 recording if
Brunhuber had been standing next to it, such testimony would not have made a difference in the
outcome of the trial. Chapo, 283 Mich App at 371. It would have done little to undercut
Brunhuber’s testimony that defendant was alone at the time he left Murphy’s Inn. Defendant’s
entire theory of the case rested on his assertion that Lynn Downs was driving at the time of the
accident. As a result, the most damaging part of Brunhuber’s testimony was that he did not
observe Lynn accompanying defendant as he left the restaurant and drove away. Even if the
expert witness could have established that Brunhuber was standing farther away from the Trans-
Am than Brunhuber testified to, this fact would not have impeached Brunhuber’s assertion that
defendant drove away alone from the restaurant. Nor would such expert testimony undercut
Sedwick’s testimony that defendant was behind the wheel of the Trans-Am immediately after the
crash. Therefore, counsel’s failure to call an expert regarding the noise level of the Trans-Am
did not deprive defendant of a substantial defense. Id.

         Defendant next argues that he was denied the right to the effective assistance of counsel
because counsel failed to have his investigator measure the distance between the auto repair shop
where Sedwick observed defendant and the scene of the accident. We disagree. “The failure to
make an adequate investigation is ineffective assistance of counsel if it undermines confidence in
the trial’s outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d 686 (2004). We conclude
that the failure to make these measurements does not undermine our confidence in the jury’s
verdict. Regardless of the distance between the auto repair shop and the scene of the accident,
Sedwick stated that he was able to observe defendant behind the wheel of the car within a matter
of seconds after driving up to the scene of the accident and did not see anyone else at the scene.
Even if an investigator’s measurements had cast doubt on Sedwick’s testimony that, while
parked at the auto repair shop, he was roughly 200 yards from where the accident occurred, this
likely would not have affected the outcome of the case in light of Sedwick’s testimony that he


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observed no one else at the scene when he pulled up to the accident site just seconds later.
Pickens, 446 Mich at 312.

         Defendant next argues that he was denied the effective assistance of counsel because,
during voir dire, his counsel failed to ask prospective jurors if they knew his investigator.
Defendant alleges that his counsel was not allowed to call his investigator as a witness because
of the trial court’s concerns about a possible mistrial. The record does not indicate the precise
reason why defense counsel did not ultimately call the investigator as a witness; the trial court in
fact offered counsel an opportunity to call the investigator to testify. After Korren Downs
testified at trial, the trial court and counsel discussed whether the investigator would be permitted
to testify. Defense counsel initially stated that he wanted to call the investigator to impeach
Sedwick regarding his distance (while parked) from the scene of the accident. The trial court
stated that in order to impeach Sedwick’s testimony with extrinsic evidence, defense counsel
would have to confirm that Sedwick had been confronted with a statement he allegedly had made
to the investigator.3 Counsel informed the court that he would discuss this option with
defendant.

         However, when trial resumed the following day, counsel told the court that he would not
be calling any further witnesses. Our review of the record reveals that, while defendant’s
counsel did question Sedwick regarding his conversation with a private investigator, he did not
elicit testimony from Sedwick concerning any statements he made to the investigator about how
far away he was from the scene of the accident when he was parked at the auto repair shop.
Thus, there was therefore no statement to impeach with the investigator’s testimony and defense
counsel was therefore not deficient in abandoning his attempt to introduce such a statement,
regardless of any failure to voir dire the jury concerning any familiarity they may have had with
the investigator.

         Further, to the extent that defendant argues that his trial counsel was deficient in failing to
elicit testimony from Sedwick that was subject to impeachment, defendant cannot demonstrate
that but for this failure, the outcome of the trial would have been different. Brunhuber testified
that defendant appeared intoxicated when he left the restaurant and drove away alone in a white
Trans-Am. Shortly after defendant left, Sedwick observed a white Trans-Am crash into a ditch
after driving at a high rate of speed. Sedwick testified that he was able to see the car in the ditch
from approximately 200 yards away and then, upon driving over to the scene of the accident,
observed defendant behind the wheel. Even if Sedwick had previously given the investigator a
different estimate of the distance between his parked vehicle and the accident site, there is not a
reasonable probability that this detail would have changed the outcome of the trial in light of the
direct and circumstantial evidence against defendant. Therefore, it cannot be said that, but for



3
 A witness’s testimony denying having made a prior inconsistent statement, or testimony that he
or she does not remember making the statement, is sufficient foundation to admit extrinsic
evidence of the statement for impeachment purposes. See People v Jenkins, 450 Mich 249, 256;
537 NW2d 828 (1995).


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counsel’s errors, there would have been a reasonable doubt respecting defendant’s guilt.
Pickens, 446 Mich at 312.

        Defendant also argues that his counsel lied to him during trial. Defendant provided this
Court with an affidavit stating that his counsel told him that the trial court ruled the investigator
could not testify because counsel did not ask prospective jurors about the investigator during voir
dire. Defendant states that counsel never informed him of the court’s offer to allow the
investigator to testify if counsel could prove that he had confronted Sedwick about a prior
conversation with the investigator. However, our review of defendant’s claim of ineffective
assistance is limited to errors apparent on the record. Mack, 265 Mich App at 125. Therefore,
this Court cannot consider this claim contained in defendant’s affidavit because it is not part of
the lower court record. Further, even if defendant’s claim were true, the fact that the investigator
did not give impeachment testimony was not outcome determinative, as discussed above.

        Defendant next argues that the performance of his counsel was deficient when counsel
failed to impeach the responding officers regarding their failure to obtain the name of the
individual (who did not testify at trial) who had arrived at the scene in a van. However, our
review of the record demonstrates that counsel impeached the responding officers at length
regarding their failure to obtain contact information from the driver of the van. For example,
while cross-examining Spens, counsel asked the following: “even though he sat there for 20 to
30 minutes before you had any contact with him with . . . his lights on, you never bothered to get
a name of that driver of that van?” Spens attempted to explain the failure to identify the van
driver by testifying that “the gentleman was asked to stand by. Maybe something could have
been misunderstood.”

        While cross-examining another responding officer, Austin McLeod, counsel asked
McLeod about the identity of the driver of the van. Counsel asked, “you didn’t bother taking a
license plate number down for the van, did you?” Counsel also cross-examined Officer Jacob
Patchett, asking him if he ever bothered to interview the van driver. Because counsel thoroughly
cross-examined Spens, McLeod, and Patchett regarding their failure to identify the van driver,
defendant cannot demonstrate that counsel’s performance “fell below an objective standard of
reasonableness.” Pickens, 446 Mich at 338.

        Defendant next argues that counsel’s performance was deficient where counsel failed to
establish a timeline of events from which the jury could determine that Lynn Downs would have
had time to leave the scene before officers arrived. Our review of the record demonstrates that
there was no dispute regarding the timing of significant events on the night of the accident.
Spens testified that the call from Brunhuber came at 12:55 a.m. and Spens was informed at 1:09
a.m. to be on lookout for a white Trans-Am. Spens arrived at the scene of the accident shortly
thereafter and observed defendant standing near the van. McLeod and Patchett arrived at the
scene approximately 10 minutes later after traveling north on Wadhams. Defendant argues that
counsel should have emphasized that there was enough of a time gap for Lynn Downs to be
picked up by Korren Downs without being seen by any of the officers. However, emphasizing
the timing of events would have done nothing to undercut the testimony of Brunhuber and
Sedwick that defendant was alone in the Trans-Am immediately before and after the accident.
Further, defense counsel did argue that Lynn Downs was driving the car at the time of the
accident, and presented testimony from both Lynn and Korren Downs in support of this theory.

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We conclude that defense counsel’s decision regarding the amount of emphasis to place on the
timeline of events the night of the accident constituted trial strategy. See People v Bosca, 310
Mich App 1, 38; 871 NW2d 307, 334 (2015).

       Defendant further argues that counsel’s performance was deficient where he failed to
pursue polygraph examinations for defendant and Lynn Downs regarding who was driving at the
time of the accident. The Michigan Supreme Court has held that the results of a polygraph
examination are not admissible at trial. People v Phillips, 469 Mich 390, 397; 666 NW2d 657
(2003). Furthermore, defendant has not shown that the results of the examinations would have
been favorable to him or that it would have affected the prosecutor’s decision to proceed to trial.
Defendant has thus failed to establish a factual predicate for his claim. Hoag, 460 Mich at 6.
Therefore, counsel’s failure to pursue polygraph examinations did not fall “below an objective
standard of reasonableness.” Pickens, 446 Mich at 338.

        Finally, defendant argues that he was denied his right to a fair trial because of the
cumulative effect of counsel’s alleged errors. Defendant cites to this Court’s holding that “[t]he
cumulative effect of several minor errors may warrant reversal even where individual errors in
the case would not warrant reversal.” People v Knapp, 244 Mich App 361, 388; 624 NW2d 227
(2001). However, only one of defendant’s claims, counsel’s failure to elicit testimony from
Sedwick that he could impeach with the testimony of his investigator, even arguably constituted
deficient performance. This error was not outcome determinative in light of the testimony of
Brunhuber and Sedwick. Therefore, there was no accumulation of errors that warranted reversal.
Id.

       Affirmed.



                                                            /s/ William B. Murphy
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Mark T. Boonstra




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