            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 21, 2020
               Plaintiff-Appellee,

v                                                                    No. 346689
                                                                     Wayne Circuit Court
EDDIE MARC WILLIAMS,                                                 LC No. 16-007134-01-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and FORT HOOD and SHAPIRO, JJ.

PER CURIAM.

      Following a jury trial, defendant was convicted of second-degree arson, MCL 750.73(1),
and was sentenced to 15 to 30 years’ imprisonment. Defendant appeals his conviction. We affirm.

                                       I. BACKGROUND
        This case arises out of an act of arson that occurred on October 15, 2015, in the city of
Detroit. On that date, firefighters were called to 18650 Ferguson Street to extinguish an ongoing
fire in a residential home. After the fire was extinguished and an investigation was completed,
law enforcement officials determined that the fire began in the attic, and it appeared to be an act
of arson. There were no individuals in the home when the fire occurred.

        Detroit Development Company owned and managed the property at 18650 Ferguson
Street. James Griffin was employed by Detroit Development, and he testified that in 2016 the
company’s owner, Zev Cohen, introduced him to defendant at the Detroit Development office
building. Griffin testified that he encountered defendant again the next day and that during their
conversation defendant brought up a recent house fire. According to Griffin, defendant stated that
“he did a house fire for Detroit Development.” Griffin testified that he knew defendant was
referring to 18650 Ferguson Street because Detroit Development sent Griffin to remove the
electrical panel from the home on the day after the fire occurred. Griffin reported the conversation
to the police.

       The police gave Griffin a handheld recording device to record any future conversations he
had with defendant about the fire. Several weeks later, Griffin had a second conversation with
defendant about the fire, and Griffin recorded the conversation. In the recording, defendant can


                                                -1-
be heard stating, “I did Ferguson.” Defendant went on to tell Griffin that he crawled into the attic
of the home on Ferguson Street and started the fire. Defendant explained that he closed the door
to the attic after he started the fire so that, “when the fire department got there, it was going to be
hard for them to get to the main part where I started it.” Griffin gave the recording to law
enforcement officials. Several months later, defendant called Griffin and threatened him. Griffin
recorded defendant’s threat and gave the recording to the police. Both of the recordings were
played at trial without objection.

        In July 2018, defendant met with a police officer and admitted to starting the fire at 18650
Ferguson Street. At trial, defendant testified that this admission was false. He testified that he
confessed to starting the fire because the police told him that they would drop the charges against
him if he provided information regarding Cohen’s involvement in setting the fire.

        On appeal, defendant argues that: (1) he was denied due process of law because the
prosecution presented perjured testimony; (2) the recordings were erroneously admitted at trial;
and (3) he was denied the effective assistance of counsel. We disagree on all counts.

                                         II. DUE PROCESS

        During trial, defendant did not argue that Griffin committed perjury or that the prosecutor
knowingly presented false testimony. Accordingly, this issue is unpreserved and our review is for
plain error affecting substantial rights.1 See People v Solloway, 316 Mich App 174, 197; 891
NW2d 255 (2016).

       It is well settled that a conviction obtained through the knowing use of perjured
       testimony offends a defendant’s due process protections guaranteed under the
       Fourteenth Amendment. If a conviction is obtained through the knowing use of
       perjured testimony, it must be set aside if there is any reasonable likelihood that the
       false testimony could have affected the judgment of the jury. [People v Schrauben,
       314 Mich App 181, 187; 886 NW2d 173 (2016) (quotation marks and citation
       omitted).]

       At the October 2018 trial, Griffin was asked on direct examination “whether [he] worked
for a company called Detroit Development before?” Griffin responded, “[y]es.” After the
prosecutor asked Griffin to speak up, the following exchange occurred:




1
  Under a plain error analysis, “defendant must establish (1) that an error occurred, (2) that the
error was plain, and (3) that the plain error affected defendant’s substantial rights.” People v
Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011). An error affects a defendant’s substantial
rights if it affects the outcome of the lower court proceedings. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). Reversal is warranted only when the plain error resulted in the
conviction of an actually innocent defendant or when an error “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” Kowalski, 489 Mich at 506 (citation and
quotation marks omitted).


                                                 -2-
               Q. Now, you said you have worked for Detroit Development, is that
       correct?

               A. Yes.

               Q. And how long did you work for Detroit Development?

               A. About two years.

On cross-examination, defense counsel asked Griffin, “[h]ow long have you worked for the Detroit
Development Company?” Griffin responded, “[t]wo years.”

         Defendant argues that Griffin’s testimony was contradictory because if Griffin had been
working for Detroit Development Company for only two years as of October 2018, then he could
not have been employed by Detroit Development in October 2015, when he purportedly worked
on the Ferguson Street home after the fire. Griffin’s testimony is not necessarily contradictory. It
is ambiguous whether he was still working for Detroit Development at the time of trial or whether
he was referring to a prior two-year period with the company. Also, his testimony indicates that
two years was an estimation because his initial answer was “[a]bout two years.” Perjury requires
willful false testimony. See In re Contempt of Henry, 282 Mich App 656, 677-678; 765 NW2d 44
(2009). Further, mere contradictions in a witness’s testimony are insufficient to establish that a
prosecutor knowingly presented perjured testimony. See People v Parker, 230 Mich App 677,
690; 584 NW2d 753 (1998). There is no evidence that the prosecutor attempted to conceal any
discrepancies in Griffin’s testimony, and defense counsel could have attempted to impeach Griffin
on this matter. While defendant argues that Griffin’s testimony regarding the period in which he
worked for Detroit Development rendered the remainder of his testimony untenable, it is the jury’s
role to determine the credibility of witnesses. People v Cameron, 291 Mich App 599, 616; 806
NW2d 371 (2011).

        Defendant next asserts that the prosecutor knowingly presented perjured testimony because
it is implausible that Griffin spontaneously encountered defendant after their first meeting. The
evidence does not support the conclusion that Griffin’s testimony about his subsequent meetings
with defendant was false, or that the prosecutor knew it was false. Further, Griffin was cross-
examined on this matter and defendant testified to the circumstances of his meetings with Griffin.
As stated, it is the jury’s role to determine the credibility of witnesses. Cameron, 291 Mich App
at 616. Further, “a jury is free to believe or disbelieve, in whole or in part, any of the evidence
presented.” People v Perry, 460 Mich. 55, 63; 594 N.W.2d 477 (1999). For these reasons,
defendant fails to establish that the prosecutor knowingly presented perjured testimony through
Griffin.

                                     III. THE RECORDINGS

        Defendant’s argument that Griffin’s recorded conversations with defendant were
inadmissible is unpreserved because defendant did not object at trial to the recordings’ admission
into evidence. See Solloway, 316 Mich App at 197.

       Defendant argues that Griffin violated MCL 750.539c when he recorded conversations
with defendant. That statute provides:


                                                -3-
       Any person who is present or who is not present during a private conversation and
       who wilfully uses any device to eavesdrop upon the conversation without the
       consent of all parties thereto, or who knowingly aids, employs or procures another
       person to do the same in violation of this section, is guilty of a felony punishable
       by imprisonment in a state prison for not more than 2 years or by a fine of not more
       than $2,000.00, or both. [MCL 750.539c.]

Under MCL 750.539a(2), “ ‘[e]avesdrop’ or ‘eavesdropping’ means to overhear, record, amplify
or transmit any part of the private discourse of others without the permission of all persons engaged
in the discourse.”

        In Sullivan v Gray, 117 Mich App 476, 481; 324 NW2d 58 (1982), we determined that
MCL 750.539a(2) “unambiguously excludes participant recording from the definition of
eavesdropping by limiting the subject conversation to the private discourse of others. The statute
contemplates that a potential eavesdropper must be a third party not otherwise involved in the
conversation being eavesdropped on.” Id. at 481 (quotation marks omitted). Accordingly, a
participant in a conversation does not violate MCL 750.539c by recording the conversation without
the other party’s knowledge or consent. Id. We reaffirmed that interpretation of MCL 750.539a(2)
and MCL 750.539c in Lewis v LeGrow, 258 Mich App 175, 185; 670 NW2d 675 (2003). Thus,
Griffin did not violate MCL 750.539c when he recorded the conversations with defendant because
Griffin was a participant in those conversations.

        Defendant also suggests that the police officers and the fire chief violated MCL 750.539c
by giving Griffin a recording device. Defendant does not elaborate on that assertion or support it
with legal authority. Accordingly, he has abandoned this cursory argument. See People v
Huffman, 266 Mich App 354, 371; 702 NW2d 621 (2005). In sum, defendant has not shown plain
error on the basis of Michigan’s eavesdropping statutes.

                                IV. INEFFECTIVE ASSISTANCE

       Finally, defendant argues that he was denied the effective assistance of counsel because
defense counsel (1) failed to investigate Griffin’s employment records and the owner of Detroit
Development, (2) did not attend defendant’s meeting with the police, and (3) failed to object to the
admission of recordings at trial.2

       To establish a claim of ineffective assistance of counsel, defendant must demonstrate that
defense counsel’s performance fell below an objective standard of professional reasonableness,
and that, in the absence of counsel’s unprofessional errors, there is a reasonable probability that




2
 Whether defense counsel performed ineffectively is a mixed question of law and fact. We review
for clear error the trial court’s findings of fact and review de novo questions of constitutional law.
See People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). Because no Ginther hearing
was held, our review is limited to mistakes apparent on the record. People v Matuszak, 263 Mich
App 42, 48; 687 NW2d 342 (2004).


                                                 -4-
the outcome of the proceedings would have been different. People v Grant, 470 Mich 477, 485-
486; 684 NW2d 686 (2004).

                                A. FAILURE TO INVESTIGATE

         The failure to undertake a reasonable investigation may constitute ineffective assistance of
counsel. People v Trakhtenberg, 493 Mich 38, 55; 826 NW2d 136 (2012). Defense counsel has
a “duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 52 (quotation marks and citations omitted). “[T]he failure to
make an adequate investigation is ineffective assistance of counsel if it undermines confidence in
the trial’s outcome.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (quotation
marks, citation and brackets omitted).

        Defendant does not establish prejudice from defense counsel’s alleged error to investigate
Griffin’s employment records. As discussed, Griffin’s testimony regarding the length of his
employment with Detroit Development was not necessarily contradictory, and defendant makes
no offer of proof regarding Griffin’s employment records. Significantly, defendant does not assert
that Griffin was not employed by Detroit Development in 2015, when, according to his testimony,
he worked on the Ferguson Street home following the fire. Further, Griffin presented compelling
testimony regarding defendant’s involvement in setting the fire at 18650 Ferguson Street. That
testimony was supported by recordings in which defendant admitted to setting the fire as well as
police officer testimony that defendant admitted to setting the fire. Thus, based on the record
before us, defendant does not establish a reasonable probability that Griffin’s employment records
would have led to a different outcome at trial.

        Defendant also fails to show that counsel’s alleged failure to investigate Detroit
Development’s owner constituted ineffective assistance of counsel. The record does not indicate
what investigatory efforts counsel made regarding Cohen. Nor does the record support defendant’s
assertion that defense counsel could have used information about Cohen to negotiate a favorable
plea deal for defendant. Specifically, there is no indication that the prosecutor was willing to offer
a plea deal for information about Cohen or that defendant would have accepted the plea deal. Thus,
defendant fails to establish that defense counsel made a professional error and that he was
prejudiced by that error.

   B. FAILURE TO ATTEND DEFENDANT’S MEETING WITH LAW ENFORCEMENT
                              OFFICIALS

        Defendant also fails to establish that defense counsel was ineffective for not being present
at a July 30, 2018 meeting with the police and prosecutor. First, defendant’s assertion that the
prosecutor was present at this meeting is not supported by the record. Neither defendant nor any
police officers testified that the prosecutor was present at the July 30, 2018 meeting. Second, there
is no evidence that defense counsel knew defendant was meeting with the police on July 30, 2018.
Third, it does not appear from the record that defendant wished to have defense counsel present at
the meeting. A police officer testified that defendant came into the police station and asked to
speak to him. The police officer informed defendant that his attorney should be present when they
speak, and defendant responded that his attorney did not need to be there. Defendant also
acknowledged that he initialed an advice of rights form, thereby indicating that he was aware of


                                                 -5-
his right to have an attorney present during the meeting. For these reasons, defendant has failed
to establish ineffective assistance of counsel on the basis of defense counsel not being present for
the July 30, 2018 meeting.

       C. FAILURE TO OBJECT TO THE ADMISSION OF RECORDINGS AT TRIAL

        Lastly, defendant argues that he was denied the effective assistance of counsel when
defense counsel failed to object to the admission of the recorded conversations on the grounds that
the recordings had missing data. It is true that portions of the conversations between Griffin and
defendant were either not recorded or not included in the recordings played at trial. It is unclear
from the record, however, whether Griffin failed to record the entire conversations with defendant
or whether the prosecutor omitted portions of Griffin’s conversations with defendant. If additional
recordings existed, defense counsel could have moved for their admission under the rule of
completeness. See MRE 106. However, defendant offers no proof that there were other recordings
or that they would have been favorable to the defense. Alternatively, if there were no other
recordings, defendant fails to explain why the recordings played at trial were inadmissible.
Defense counsel is not required to raise futile objections. People v Thomas, 260 Mich App 450,
457; 678 NW2d 631 (2004).

         Further, while the recordings were certainly probative, they were not the sole proofs of
guilt. Griffin and the police officer who spoke to defendant at the July 30, 2018 meeting both
testified that defendant admitted to setting the fire at 18650 Ferguson Street. Defendant also
acknowledged that he made those admissions and that he threatened Griffin. Considering the
prosecution’s other evidence, defendant has not shown a reasonable probability that the outcome
at trial would have been different had defense counsel successfully objected to the admission of
the recordings.

       Affirmed.



                                                             /s/ Jane M. Beckering
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Douglas B. Shapiro




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