                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 9, 2015
              Plaintiff-Appellee,

v                                                                  No. 317282
                                                                   Jackson Circuit Court
TODD DOUGLAS ROBINSON,                                             LC No. 12-003652-FC

              Defendant-Appellant.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial convictions of premeditated first-degree murder,
MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. He was sentenced to life in prison without parole for the murder conviction and
an additional two years for the felony-firearm conviction. We affirm.

        Defendant was convicted of shooting and killing the victim as part of a drug deal
involving promethazine. The evidence against defendant was both direct and circumstantial.
Two witnesses—Joe Kelley and Troy Heard, both long-time friends of defendant—testified that
the three men were playing their regular game of dominoes at Kelley’s house. Kelley testified
that defendant went to the kitchen to talk with someone, probably a man but Kelley did not know
who it was, and went out the back door with the person. Minutes later, Kelley heard a gunshot
from “out back.” Heard went outside briefly, returned, and said he had to leave. Kelley saw
defendant looking in his truck, saw a man he did not recognize lying down by the fence, and
called 911. On cross-examination, Kelley said that he did not see defendant with a gun that
night.

        Heard testified that someone knocked at the back door, and defendant answered. Heard
identified the victim as being the man at the door. Defendant and the victim were negotiating
over the sale of promethazine. Defendant came back to the table, laid a gun on the table, and
said “it ain’t gonna go down like they think.” There was another knock at the back door and
defendant answered. Heard then heard what sounded like a gunshot. Heard looked out the
kitchen window and saw defendant move the victim to the fence. As Heard was leaving,
defendant said that the victim drew a gun on him and walked him out of the house. The next
morning Detective Stiles went to Heard’s house and Heard told a different story. Later, Heard



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got arrested with a gun, and Stiles again came to see him. Heard testified that he had a gun
charge pending but expected nothing in exchange for his testimony at defendant’s trial.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that his conviction should be overturned because the evidence used
against him was insufficient, incompetent, and inadmissible. Defendant contends that the
prosecution introduced propensity evidence that defendant was a coward and had a reputation of
carrying a .38-caliber gun and inadmissible hearsay evidence from Kelley, a police informant,
that defendant was the shooter. Further, defendant maintains that Heard’s testimony was
improper because the jury was repeatedly told there was no deal to dismiss unrelated charges
against Heard in exchange for his testimony when there was in fact a deal.

        This Court reviews de novo challenges to the sufficiency of the evidence. People v
Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). Whether there is sufficient evidence
for conviction is determined by whether any rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt. Id. All conflicts
regarding the evidence are drawn in favor of the prosecution, and circumstantial evidence and
reasonable inferences that may be drawn from that evidence may be sufficient to prove the
elements of the crime. Id. “This Court will not interfere with the trier of fact’s role of
determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008).

        “To prove first-degree premeditated murder, the prosecution must establish that the
defendant intentionally killed the victim and that the act of killing was premeditated and
deliberate.” People v Mette, 243 Mich App 318, 330; 621 NW2d 713 (2000); MCL
750.316(1)(a). Premeditation requires that there be sufficient time to permit the defendant to
take a second look and this may be inferred from the circumstances surrounding the killing.
People v Kelly, 231 Mich App 627, 642; 588 NW2d 480 (1998).

        While defendant’s statement of questions presented states that his argument is that the
evidence was insufficient to support his conviction for first-degree murder, a significant portion
of his argument addresses the admissibility of evidence. Defendant’s arguments for the
inadmissibility of evidence are vague, and he fails to assert the specific grounds. It can only be
presumed defendant means to assert that some evidence was improperly admitted and without
this evidence there was insufficient evidence to support his conviction. This Court reads all
conflicts regarding the evidence in favor of the prosecution. Lockett, 295 Mich App at 180.

        Defendant misreads and misconstrues many of the facts below. Defendant failed to
object to much of the evidence he now challenges as inadmissible. Much of this evidence was
introduced by defendant. But first, we must address the argument that there was an undisclosed
deal in place between the prosecutor and Heard in exchange for his testimony. During oral
argument in this Court, the prosecution conceded that there had, in fact, been a deal reached with
the witness granting immunity on a possible future charge against him. Accordingly, we
remanded the matter to the trial court to address this issue. In particular, we directed the trial
court to determine whether the error was nevertheless harmless. The trial court conducted an
extensive evidentiary hearing. The trial court stated that it appeared that, at trial, the prosecutor

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and the witness appeared to think that the question of immunity related to the existing charges
against the witnesses rather than the possibility of a future charge arising out of this case. The
trial court also noted that defense counsel was aware of the grant of immunity related to a
potential future charge arising out of the instant case. Ultimately, the trial court concluded that
there was no reasonable likelihood that disclosure of the grant of immunity would have affected
the outcome and that the error was harmless. We are not persuaded that the trial court erred in
this determination.

        Next, the testimony from Detective Stiles, that Kelley allegedly said if the victim was
shot in the back of the head defendant was the shooter because he was a coward, was elicited on
cross-examination by defendant for the clear purpose to examine a previous statement of Kelley
and his bias and credibility. Defendant cannot challenge the admission of his own evidence as
improper propensity evidence. Defendant fails to explain why this Court should rule that
evidence he introduced was improper and why it should not be admissible when used for a
proper purpose to show the bias of the witness.

       Evidence that defendant possessed a .38-caliber firearm was admissible. The testimony
was introduced in multiple ways and it is unclear what defendant challenges on appeal. The
evidence was introduced on the cross-examination of Stiles as to prior inconsistent statements of
Kelley. Defendant cannot challenge the admission of his own evidence, and he fails to explain
how this was improper propensity evidence and not impeachment. The other mentions of the
gun were as part of plaintiff’s case-in-chief testimony of Detective Stiles, referencing a prior
inconsistent statement of Kelley’s that defendant shot the victim with a .38-caliber firearm, and
on redirect examination Stiles explains how Kelley was aware defendant carried a .38-caliber
firearm. All of this was proper and defendant fails to allege how it was improper.

       Defendant fails to allege how Kelley’s testimony was improper and what portions were
improper hearsay. Further, there was nothing incredible about Heard’s testimony and it was not
unusual, only that it weighed heavily against defendant’s innocence. Therefore, to the degree
defendant alleges the evidence was improperly admitted, the allegation is without merit.

        Applying all the evidence submitted to the court, regardless of defendant’s allegations of
inadmissibility, there is sufficient evidence to support defendant’s guilt. Evidence was
introduced to show that defendant had a .38-caliber firearm consistent with the weapon used to
kill the victim. There were multiple instances of testimony that defendant (1) was with the
victim right before the shooting as part of a drug deal, (2) stated while setting down a gun that “it
ain’t gonna go down the way they think” referring to the victim, (3) was seen moving the victim,
(4) stated he shot the person, and (5) stated to law enforcement that he was present at the
shooting. When taken together this is more than sufficient direct and circumstantial evidence to
support the conviction. The evidence fits together and corroborates the other evidence. The
evidence shows that defendant intentionally and premeditatedly killed the victim.

                             II. PROSECUTORIAL MISCONDUCT

        Next defendant argues that the prosecution engaged in several forms of misconduct.
Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial
rights. People v Thomas, 260 Mich App 450, 453-454, 678 NW2d 631 (2004). To avoid

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forfeiture under the plain error rule: (1) the error must have occurred; (2) the error must have
been plain, meaning clear or obvious; and (3) the plain error had to prejudice the defendant by
affecting the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). Even if this Court finds plain error, it will only reverse the lower court when
the error seriously affected the fairness, integrity, or public reputation of judicial proceedings
regardless of a defendant’s innocence or where the error resulted in an actually innocent
defendant’s conviction. Id.

        Claims of prosecutorial misconduct are reviewed on a case-by-case basis with alleged
improper remarks reviewed in context. People v Brown, 267 Mich App 141, 152; 703 NW2d
230 (2005). The proper test for prosecutorial misconduct is whether the defendant was denied a
fair and impartial trial. People v Howard, 226 Mich App 528, 544; 575 NW2d 16 (1997). “No
error requiring reversal will be found if the prejudicial effect of the prosecutor’s comments could
have been cured by a timely instruction.” People v Schutte, 240 Mich App 713, 721; 613 NW2d
370 (2000). The prosecutor has a duty to disclose any promises made to secure a witness’s
testimony. People v Rosales, 160 Mich App 304, 310; 408 NW2d 140 (1987).

        Defendant alleges that the prosecutor committed misconduct by (1) indicating in his
opening statement that it might never be known what happened because defendant had no burden
of proof and did not have to testify, (2) introducing testimony from Heard that was perjured and
offered in exchange for a deal, and (3) eliciting testimony from Stiles that in his experience
witnesses often change their stories. We find no plain error affecting defendant’s substantial
rights. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).

       Defendant alleges that the prosecutor committed misconduct by introducing Heard’s
testimony that was perjured and offered in exchange for a deal, the prosecutor’s opening
statement, and the testimony of Stiles that in his experience witnesses often change their stories.
Defendant fails in all arguments.

       With regard to the allegation that the prosecutor committed misconduct in his opening
statement, defendant challenges the following:

              Now, what happened outside in that driveway I can’t really tell you.
       There’s only two people that are confirmed to be out in that driveway. One is
       Eshaum Gant, who has obviously passed away. The other person would have
       been Todd Robinson. And Todd Robinson is under absolutely no obligation to
       say anything. He has no burden, he doesn’t have to testify and he – we may never
       know what Todd Robinson will say happened. But Todd Robinson did make a
       statement when he talked to Detective Brett Stiles right around this time frame
       when this happened.

        It is unclear how this statement amounts to prosecutorial misconduct and, absent saying it
is, defendant does not explain further. By all accounts and when reviewed for plain error there is
no indication of misconduct in this statement. Defendant was not denied a fair and impartial trial
because of this statement. Howard, 226 Mich App at 544.




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        Next, defendant alleges that the prosecutor committed misconduct in allowing the
testimony of Heard, which defendant asserts was perjured and only offered as part of an
undisclosed agreement with the witness. However, as discussed above, the trial court did not
conclude that the prosecutor acted intentionally in withholding this information. Moreover, in
light of the trial court’s conclusion that this error was harmless, there can be no plain error.

       Lastly, defendant challenges portions of the testimony of Detective Stiles. On direct
examination, Stiles had just testified that he interviewed Heard twice and that the first interview
was not consistent with Heard’s trial testimony but the second interview was consistent. The
following then ensued:

               Q. You said you’ve been a police officer for how long?

               A. Over 19 years now.

              Q. Do you often get situations where you speak to witnesses or
       individuals more than once?

               A. Yes.

              Q. Do you often get situations where the original story changes after
       another time—(inaudible)?

               A. Yes. Yes, I do.

                                                   ***

               Q. How often do circumstances like that happen with you?

               A. It happens quite often.

               Q. All right. So it’s not a surprise to you when a story changes?

               A. Not at all.

        This testimony from Stiles was not a statement of his opinion regarding whether any
witness at defendant’s trial was or was not telling the truth. It was merely a statement that, in his
experience as a police officer, witnesses often change their story. This was not expert testimony
as asserted by defendant.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant’s final argument is that his trial counsel provided ineffective assistance of
counsel. “In order to preserve the issue of effective assistance of counsel for appellate review,
the defendant should make a motion in the trial court for a new trial or for an evidentiary




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hearing.” People v Sabin, 242 Mich App 656, 658; 620 NW2d 19 (2000). Because defendant
failed to move for a new trial or file a motion for a Ginther1 hearing, this Court’s review is
limited to the appellate record. Id.

        To establish ineffective assistance of counsel a defendant must establish that counsel’s
performance was deficient and that the deficient performance was prejudicial. Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In order to show
deficient performance, a defendant must show that counsel’s performance was outside the wide
range of professionally competent assistance as secured under the Sixth Amendment of the
United States Constitution. Id. at 689. To satisfy the prejudice prong a defendant must show
that there is a reasonable probability that, but for counsel’s performance, the result of the
proceeding would have been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. In reviewing this issue, defense counsel
is afforded wide latitude on matters of trial strategy. People v Unger, 278 Mich App 210, 242-
243; 749 NW2d 272 (2008).

        Defendant has not shown that his counsel’s performance was deficient and that the
deficient performance resulted in prejudice to him. Strickland, 466 US at 687. A failure to bring
forward a meritless argument does not constitute ineffective assistance of counsel. People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). “In general, the failure to call a
witness can constitute ineffective assistance of counsel only when ‘it deprives the defendant of a
substantial defense.’” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009), quoting
People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990). Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). This Court will not
substitute its judgment for that of counsel regarding matters of trial strategy. People v Davis,
250 Mich App 357, 368; 649 NW2d 94 (2002). “Failure to make a reasonable investigation can
constitute ineffective assistance of counsel.” People v McGhee, 268 Mich App 600, 626; 709
NW2d 595 (2005).

        Defendant fails to show that trial counsel was ineffective. This Court’s review is limited
to the existing record. Sabin, 242 Mich App at 658-659. The majority of defendant’s allegations
rely on arguments outside the record. Defendant asserts that trial counsel was ineffective for (1)
failing to object and conduct a reasonable investigation into the prosecution’s deal with Heard,
(2) failing to conduct a reasonable investigation into propensity evidence that defendant was
known to carry a gun and propensity evidence from police informant Kelley, (3) eliciting and not
objecting during the testimony of Stiles that defendant was a coward and might be the shooter,
and (4) failing to make an opening statement, allow defendant to testify, make required motions
to preclude the admission of evidence, and present witnesses on defendant’s behalf .

        Based on the record, defendant has failed to carry his burden to show that counsel was
ineffective. In light of the trial court’s conclusion that the error related to the nondisclosure of
the deal with Heard, defendant could not have been prejudiced for counsel’s failure to further


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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address this issue. Additionally, trial counsel did assert that there was an implied deal and
examined the witnesses in length on the issue. Defense counsel insisted to the Court he be
allowed to proceed in this line of questioning. Therefore, counsel was not ineffective on this
issue.

        Secondly, the testimony that defendant was known to carry a .38-caliber firearm and was
a “coward” was elicited and used by defense counsel as part of its overall strategy of attacking
the bias and credibility of the witnesses. This Court will not substitute its judgment for that of
trial counsel in matters of trial strategy. Davis, 250 Mich App at 368. Furthermore, the
prejudicial effect of this testimony on defendant, if any, would be minimal. Moreover, this
information was most likely introduced by the prosecutor under MRE 607 as impeachment
evidence, and therefore counsel was not ineffective for failing to object.

        Defendant’s contention that trial counsel was ineffective for failing to object to the
testimony of Stiles that witnesses often change their story because it was inadmissible fails
because the evidence was admissible and was not expert testimony. Counsel cannot be
ineffective for failing to make a meritless argument. Ericksen, 288 Mich App at 201.

        Defendant fails to show any evidence on the record that illustrates that counsel was
ineffective or failed to allow defendant to testify on his own behalf. Evidence that defendant
contended he was not the shooter was brought forth in the testimony of Detective Stiles.

         As for defendant’s contention that overall counsel was ineffective for failing to present
witnesses, failing to make an opening statement, and failing to file motions to exclude evidence,
these are all presumed to be trial strategy and defendant fails to show any record facts to rebut
this presumption. Absent a hearing, we are merely left to speculate why counsel waived his
opening statement. Defendant does not name any witnesses that should have been offered to
assist in his defense or elaborate on any specific meritorious motions to exclude any evidence.

        There is no evidence that trial counsel was ineffective. In contrast the record establishes
that there was a clear strategy on the part of defense counsel to show that the witnesses were
biased against defendant, that the key witness against him was testifying solely to get a deal from
the prosecution, and that the forensic evidence did not show that defendant was the shooter.

       Affirmed.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ David H. Sawyer
                                                            /s/ Patrick M. Meter




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