                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 19, 2016
              Plaintiff-Appellee,

v                                                                 No. 323792
                                                                  Crawford Circuit Court
CHRISTOPHER DEWAYNE NORFLEET,                                     LC Nos. 14-003714-FH;
                                                                          14-003715-FH;
                                                                          14-003695-FC
              Defendant-Appellant.


Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

       Defendant, Christopher Dewayne Norfleet, appeals as of right his convictions, following
a jury trial, of nine counts of delivery of a controlled substance less than 50 grams. MCL
333.7401(2)(A)(iv). The trial court sentenced Norfleet to serve concurrent terms of 46 months’
to 40 years’ imprisonment. We affirm.

                                    I. BACKGROUND FACTS

       A confidential informant testified that he engaged in controlled purchases of heroin and
cocaine from a man that he knew as “K.” The informant identified Norfleet as “K” in the
courtroom. According to the informant, he purchased heroin, crack cocaine, and powder cocaine
from Norfleet about 15 or 20 times in the sixth months preceding the controlled purchases, and
he recognized Norfleet’s voice over the phone when he was arranging the purchases.

        The informant met with Norfleet at a hotel. At the initial controlled buy on January 22,
2014, he first knocked on room 105. When he received no response, he knocked on the door at
room 107, and Norfleet answered the door. The informant waited on the bed while Norfleet
retrieved heroin and cocaine, and then he left. He engaged in similar buys on January 28,
February 7, and February 19, 2014.

         Michigan State Police Officer Tim Heliin testified that officers rented the motel room
across from room 107 on February 19, 2014, and watched the door and hallway with cameras.
According to Officer Heliin, he watched the informant walk from the parking lot to the motel’s
south entrance and knock on the door to room 107. The informant entered the room briefly, then
left the hotel.


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       Officer Heliin left to retrieve a warrant and brief other officers. After about an hour, he
returned to the hotel, executed the warrant, and arrested Norfleet in room 107. According to
Officer Heliin, the motel’s manager, Dragush Feri, indicated that Norfleet had just paid his bill.
Officer Heliin discovered that $170 in the motel’s office matched the marked bills that the
informant gave Norfleet for drugs. It was the only cash in the motel office when officers
executed the search warrant.

       Norfleet testified that the informant mistook him for another man, Kendric Kareem
Ballard, who Norfleet stated lived in room 105. According to Norfleet, on February 19, 2014, he
traded his girlfriend’s camera to Ballard for money that he used to pay his rent.

                                 II. STANDARD OF REVIEW

        Norfleet, through counsel and in his pro per brief filed pursuant to Michigan Supreme
Court Order 2004-6, Standard 4, raises several issues regarding the effectiveness of trial counsel.
A criminal defendant has the fundamental right to effective assistance of counsel. US Const, Am
VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d
657 (1984). A defendant must move the trial court for a new trial or evidentiary hearing to
preserve the defendant’s claim that his counsel was ineffective. People v Ginther, 390 Mich 436,
443; 212 NW2d 922 (1973); People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
When the trial court has not conducted a hearing to determine whether a defendant’s counsel was
ineffective, our review is limited to mistakes apparent from the record. People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012).

        To prove that his defense counsel was not effective, the defendant must show that (1)
defense counsel’s performance fell below an objective standard of reasonableness, and (2) there
is a reasonable probability that counsel’s deficient performance prejudiced the defendant.
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). The defendant must overcome the
strong presumption that defense counsel’s performance constituted sound trial strategy. People v
Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). We must consider the possible reasons for
counsel’s actions. Id. A defendant was prejudiced if, but for defense counsel’s errors, the result
of the proceeding would have been different. Id.

                                     III. THE INFORMANT

       First, through counsel, Norfleet contends that counsel was ineffective when he failed to
request a special jury instruction regarding the confidential informant. We disagree.

        Whether to request a particular jury instruction is a matter of trial strategy. See People v
Matuszak, 263 Mich App 42, 59-60; 687 NW2d 342 (2004). When an addict-informant provides
the only testimony against a defendant, the defendant is entitled to a jury instruction cautioning
that it should consider the addict-informant’s information with special scrutiny. People v
Jackson, 292 Mich App 583, 601; 808 NW2d 541 (2011). The instruction should be given if the
informant was addicted to drugs at the time in question. People v Griffin, 235 Mich App 27, 40-
41; 597 NW2d 176 (1999), overruled in part on other grounds in People v Thompson, 477 Mich
146, 148; 730 NW2d 708 (2007).

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        In this case, there is no indication that the informant was using or addicted to drugs at the
time of the controlled buys. To the contrary, the informant testified that he was a “prior drug
user” and was in recovery. We conclude that counsel was not ineffective for failing to request
this instruction. See Jackson, 292 Mich App at 602.

       Additionally, counsel cross-examined the informant extensively regarding his agreements
with police and the prosecution and vigorously argued that the jury should not believe the
informant’s testimony. The trial court provided general instructions to the jury regarding how to
evaluate witness testimony, and its instructions included that it should consider whether a
witness has a personal interest in how the case was decided, whether a witness’ testimony was
influenced by anything, and whether a witness had a special reason to lie. We also conclude that
counsel’s decision not to request a specific instruction did not prejudice Norfleet.

       Second, in his pro per brief, Norfleet contends that counsel was ineffective for failing to
move to strike the informant as a witness. Norfleet contends that the informant could not act as a
witness because he was on probation and his testimony was so incredible that it could not be
believed. We disagree.

        In criminal trials, all witnesses are presumptively competent to testify. People v Watson,
245 Mich App 572, 583; 629 NW2d 411 (2001); MRE 601. It is the province of the trier of fact
to determine the credibility of the witnesses. People v Dobek, 274 Mich App 58, 71; 732 NW2d
546 (2007). In this case, there is no indication that the informant lacked the physical or mental
capacity to testify. Whether the informant was credible was an issue for the jury to determine.
We conclude that counsel was not ineffective for failing to move to strike the informant as a
witness. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (counsel need
not make futile challenges).

        Third, Norfleet contends in his pro per brief that trial counsel was ineffective for failing
to require the informant to produce the phone that he used to purchase drugs from Norfleet. We
disagree.

        What evidence to present is a matter of trial strategy. People v Horn, 279 Mich App 31,
39; 755 NW2d 212 (2008). In this case, defense counsel thoroughly impeached the informant
regarding the number at which he called Norfleet, including eliciting that the informant dialed a
phone number with a 734 area code when Norfleet’s phone number had a 989 area code. We
reject Norfleet’s assertion that counsel should have elicited this information in a different manner
and conclude that defense counsel’s decision to present the evidence in this manner was
reasonable.

                                      IV. INVESTIGATION

        Through counsel, Norfleet contends that trial counsel was ineffective in failing to
investigate and present an exculpatory defense witness.

       “Failure to make a reasonable investigation can constitute ineffective assistance of
counsel.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005). However, a
defendant must demonstrate the factual predicate for his or her claim. People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). While Norfleet contends that counsel did not investigate
                                                -3-
a potential witness named Anne, there is no indication in the record regarding counsel’s
investigative efforts. More importantly, Norfleet has failed to establish that Anne actually would
have provided exculpatory testimony. See People v Norfleet, unpublished order of the Court of
Appeals, entered August 10, 2015 (Docket No. 323792). Because there is no indication that this
witness would have provided exculpatory testimony, we conclude that Norfleet has failed to
establish the factual predicate for this claim.

                                  V. CONFLICT OF INTEREST

       Through counsel, Norfleet contends that he lacked the effective assistance of counsel
because trial counsel had a conflict of interest when another client, Steven May, implicated
Norfleet in a solicitation to commit murder. We disagree.

        “[I]n order to demonstrate that a conflict of interest has violated his Sixth Amendment
rights, a defendant ‘must establish that an actual conflict of interest adversely affected his
lawyer’s performance.’ ” People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998), quoting
Cuyler v Sullivan, 446 US 335, 350; 100 S Ct 1708; 64 L Ed 2d 333 (1980). This Court
presumes that the defendant was prejudiced only if (1) counsel actively represented conflicting
interests, and (2) the conflict adversely affected counsel’s performance. Smith, 456 Mich at 557.

         At the pretrial hearing on a motion regarding whether to disqualify trial counsel, counsel
testified that May gave him a note indicating that he had information involving another case.
Counsel did not know that the information involved Norfleet, and counsel gave May permission
to speak with the prosecutor without counsel’s presence. Counsel later ceased representing May
and ceased representing Norfleet in the solicitation matter. The trial court found that counsel did
not have a conflict of interest.1

        This is not a case where trial counsel actively advanced May’s interests to the detriment
of Norfleet’s. When counsel allowed May to speak to the prosecutor, he did not know that May
wanted to talk about a matter adverse to Norfleet’s interests. And when the potential conflict
came to light, counsel ceased representing May’s interests and solely represented Norfleet’s. We
conclude that trial counsel did not deprive Norfleet of the effective assistance of counsel by
actively represent conflicting interests.

                                 VI. TELEPHONE TESTIMONY

        In his pro per brief, Norfleet contends that the trial court violated his right to confront the
witnesses against him by allowing Dragush Feri, the motel’s manager, to testify over the
telephone. We conclude that Norfleet has waived this issue. A party may not appeal an error
that the party created. People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010). In this case,
the prosecution indicated that it wanted to call Feri out of order because of conflicting


1
  However, after trial counsel was subpoenaed as a witness in the solicitation matter, counsel
moved to withdraw from representation during sentencing proceedings in this case. The trial
court granted the motion.


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availability. As an alternative to calling Feri after defense counsel began presenting Norfleet’s
defense, counsel suggested that Feri testify over the telephone. Because Feri testified
telephonically at defense counsel’s request, Norfleet has waived any issues regarding the
propriety of that procedure.

                               VII. COMPARISON TESTIMONY

         In his pro per brief, Norfleet contends that counsel provided ineffective assistance by
failing to present evidence of Ballard’s appearance. We disagree.

        Again, what evidence to present is a matter of trial strategy. Horn, 279 Mich App at 39.
In this case, the jury requested to view Ballard. Defense counsel indicated that he had spoken
with Ballard’s attorney and he actively opposed presenting Ballard or calling Ballard as a
witness. There are a variety of reasons why reasonable counsel might not want to present
Ballard as a witness, including the possibility that Ballard and Norfleet looked dissimilar or that
Ballard would testify contrary to Norfleet’s interests. We conclude that Norfleet has failed to
demonstrate that counsel’s strategic decision was unreasonable.

                                      VIII. JUDICIAL BIAS

        Finally, in his pro per brief, Norfleet contends that the trial court assisted the prosecution
in fabricating a case against him. We disagree.

        To preserve an issue of judicial bias, a party must raise the claim before the trial court.
MCR 2.003(D); Jackson, 292 Mich App at 597. Where a defendant has not done so, we review
the issue for plain error. Id.

       “Due process requires that an unbiased and impartial decision-maker hear and decide a
case.” Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012). A judge must be
disqualified when he or she cannot hear a case impartially, including when a judge is personally
biased or prejudiced against a party. Cain v Dep’t of Corrections, 451 Mich 470, 494-495; 548
NW2d 210 (1996). The party who alleges that a judge is biased must overcome the heavy
presumption in favor of judicial impartiality. Id. at 497. Judicial rulings almost never constitute
a valid basis for bias, unless the judicial opinion displays “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. at 503 (quotation marks and citation
omitted).

       In this case, Norfleet asserts that the trial court demonstrated bias by repeatedly ruling
against him and by failing to abide by its own rulings. We have reviewed the record and we
disagree. There is no indication that the judge indicated any personal bias against Norfleet, and
the judge’s rulings do not display favoritism or antagonism. We conclude that this issue lacks
merit.

       We affirm.

                                                              /s/ Douglas B. Shapiro
                                                              /s/ Peter D. O’Connell
                                                              /s/ Stephen L. Borrello

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