            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 20, 2019
              Plaintiff-Appellee,

v                                                                  No. 340545
                                                                   Wayne Circuit Court
MICHAEL THOMAS,                                                    LC No. 17-002666-01-FC

              Defendant-Appellant.


Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions of assault with intent to do great bodily
harm less than murder (AWIGBH) (MCL 750.84), and malicious destruction of personal
property (MDOP) $200 or more, but less than $1,000 (MCL 750.377a(1)(c)(i)). The trial court
originally sentenced defendant on August 1, 2017, to concurrent terms of 25 to 40 years’
imprisonment for AWIGBH and six months to one year for MDOP without referencing that the
trial court sentenced defendant as a fourth-offense habitual offender (MCL 769.12). The trial
court amended defendant’s judgment of sentence on August 24, 2017, to correct the ministerial
error. Defendant timely appealed. We affirm.

        Defendant moved in this Court for remand for an evidentiary hearing regarding his
claims of ineffective assistance of counsel and because he believed that the trial court may have
erred by incorrectly applying MCL 769.34(2)(b), the codified “two-thirds rule” articulated in
People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). This Court denied defendant’s motion
for an evidentiary hearing but granted his request for remand of this case so that he could move
in the trial court for consideration whether he should be resentenced. People v Thomas,
unpublished order of the Court of Appeals entered June 18, 2018 (Docket No. 340545). On




                                               -1-
remand, defendant moved for resentencing and the trial court agreed to resentence defendant to
25 to 35 years’ imprisonment for his AWIGBH conviction; his MDOP sentence was unchanged.1

                                       I. BACKGROUND

         This case arises from two incidents that occurred on March 13, 2017, in the area of
Rosemont Avenue and Chalfonte Street in Detroit, Michigan. In the early afternoon, Lisa
Candie drove on Rosemont Avenue and found cars parked on her left and defendant’s SUV
parked at an angle in the street on her right requiring her to proceed slowly. As she drove by the
SUV, defendant jumped out of the rear driver’s side door and ran to Candie’s door with a four-
way tire iron in his hand yelling something. Defendant hit her windshield multiple times with
the tire iron damaging her windshield and putting a hole in it. Defendant tried to open Candie’s
door causing her to scream. Despite the snowy, slippery road conditions, Candie escaped and
drove to her parents’ house on Rosemont Avenue. When she drove away, defendant’s open
truck door damaged the passenger side of her car.

        That same afternoon, Michael Wynn drove down Rosemont Avenue with his 78-year-old
mother and approached a stop sign when the back door of defendant’s parked SUV opened and
knocked off his passenger side mirror. Wynn stopped, exited his vehicle, left it running with the
door open, and approached the SUV. Defendant left the back seat of the SUV with a tire iron,
bypassed Wynn who remarked that he broke his mirror. Defendant walked over to Wynn’s
vehicle with Wynn following asking him if he heard him say that he knocked the mirror off of
his vehicle. Defendant got into the driver’s seat of Wynn’s car. Wynn jumped on top of
defendant and they started to struggle for control of the vehicle. Wynn tried to get defendant out
of his vehicle. Defendant put the vehicle in drive and drove it into garbage cans and up onto the
curb while Wynn scuffled with him. Defendant then cut Wynn on his chin, twice on his left
hand, and on the back of his right shoulder with a box cutter. Wynn gained control of the vehicle
and put it into park. Wynn’s mother punched defendant in the face and Wynn struggled to get
defendant out of his car. Wynn bit defendant’s hand causing him to drop the box cutter on the
seat. Wynn retrieved it and used it on defendant as he went out the passenger side door. Once
out, defendant walked away. Meanwhile, Wynn bled profusely, his mother screamed for help
and for someone to call the police, 911, and an ambulance. An ambulance arrived and took
Wynn to Sinai Grace Hospital.

         Defendant described the two incidents differently. He testified that his SUV broke down
and when he sought assistance from Candie he slipped and accidently hit her windshield with his
tire iron. After she left, he returned to his truck and he fell asleep until he awoke after hearing a
bump from Wynn’s car hitting his mirror. Wynn approached him yelling, and he and Wynn
tussled at the rear of Wynn’s vehicle and ended up by Wynn’s driver’s door whereupon they


1
  Because we previously considered defendant’s sentencing claim of error and provided
defendant the relief he requested and the trial court addressed defendant’s claim of error and
resentenced him, this issue has been rendered moot. People v Mansour, 206 Mich App 81, 82;
520 NW2d 646 (1994). “It is well established that a court will not decide moot issues.” People
v Richmond, 486 Mich 29, 34; 782 NW2d 187 (2010). Therefore, we need not address that issue.


                                                -2-
both fell and somehow defendant ended up inside Wynn’s car door well. Both men ended up in
the driver’s seat where Wynn held defendant down. Defendant testified that Wynn cut him with
a box cutter on his arms and legs. Defendant somehow took the box cutter. Defendant denied
using the box cutter to cut Wynn. He surmised that Wynn cut himself while trying to cut
defendant. Defendant exited the car and walked to a nearby gas station where Wynn and a group
of people accosted him and inflicted injuries upon him when he exited the gas station. The
police arrived and took defendant into custody and took him to the hospital where he received
treatment and medication before being released. In his discussions with hospital staff, defendant
denied he had taken any drugs but at trial admitted that he used cocaine and had a few drinks.

        The day after the incidents, police officers interviewed defendant and video recorded the
interview. Defendant testified that the cocaine and alcohol combined with the medication he
received at the hospital made him disoriented when he talked with the police. He stated that he
had a hangover.

         On the first day of trial, the prosecution indicated that if defendant testified at trial it
intended to present the video recorded interview for impeachment purposes. Defense counsel
argued that the video could not be used in any manner because defendant’s waiver had not been
voluntary or knowing because he suffered from advanced intoxication. The parties agreed that
the trial court could address the issue of the video’s admissibility if it arose during the trial. The
prosecution also advised the trial court that it objected to the admission of an uncertified copy of
defendant’s medical records in the event that defendant did not testify at trial because the
prosecution would not have opportunity to cross-examine defendant about his statements made
to medical staff. Defense counsel agreed that for admissibility defendant would be required to
testify.

        On the second day of trial, defense counsel raised an issue regarding defendant’s ability
to waive his Miranda2 rights because of his intoxication. Defense counsel argued that the trial
court needed to suppress the recorded video of the police interview because defendant lacked the
ability to knowingly and voluntarily waive his rights, and the video featured portions that
indicated the police suggested and interpreted defendant’s responses. The prosecution argued
that defendant was held in detention for 24 hours and had time to become sober before the
interview, and when asked if he wanted to proceed or wait a day, he consented to the interview.
The prosecution also argued that the trial court should permit it to use the video for impeachment
purposes even if it precluded the prosecution from using it in its case-in-chief because settled
caselaw permitted the use of a Miranda defective confession for impeachment purposes.
Defense counsel agreed that the prosecution could use a Miranda defective confession for
impeachment purposes. Nevertheless, defense counsel argued that defendant’s mental capacity
had been so compromised by intoxication that he spoke incoherently and the trial court should
not allow the jury to hear his statements under such circumstances. The trial court reflected upon
the contents of the police interview and ruled it Miranda defective and that the prosecution could




2
    Miranda v Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed2d 694 (1966).


                                                 -3-
not present it in its case-in-chief. The trial court, however, ruled that it could be used for
impeachment purposes.

        After defendant testified and the defense closed its case, the prosecution called Detroit
Police Sergeant Robert Wellman as a rebuttal witness. The prosecution examined the witness
regarding his interviewing defendant and played approximately nine minutes of the recorded
interview until the trial court sua sponte stopped the playing of the recorded interview, and sent
the jury out of the courtroom. The trial court told the prosecution that it ruled that the recorded
interview could only be used to impeach defendant. The trial court, therefore, ordered that the
prosecution could not present the evidence to the jury through a rebuttal witness and that the
evidence would be stricken. The trial court had the jury return to the courtroom and instructed
them that the video evidence was stricken from the record and that they were to disregard the
witness’s testimony and the video. After the parties made their closing arguments, the trial court
instructed the jury. The trial court told the jury that they could not consider any evidence or
testimony that it had stricken or excluded. The jury deliberated and found defendant guilty of
AWIGBH and MDOP. Defendant now appeals.

                                II. INEFFECTIVE ASSISTANCE

         Defendant argues that his trial counsel provided him ineffective assistance by not moving
for a mistrial related to the police interview video and the trial court’s evidentiary ruling, and by
failing to obtain and use his medical records. We disagree.

        A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). We
review the trial court’s findings of fact, if any, for clear error, and review de novo its conclusions
of law. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “Clear error exists if
the reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
Armstrong, 490 Mich at 289. We also review de novo constitutional issues. Harvey v Michigan,
469 Mich 1, 6; 664 NW2d 767 (2003). Although defendant preserved the issue by filing a
motion for remand in this Court, because this Court denied the motion, 3 and no evidentiary
hearing has been held, our review is limited to mistakes apparent on the trial court record. See
People v Seals, 285 Mich App 1, 17, 19-20; 776 NW2d 314 (2009).

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). “A
particular strategy does not constitute ineffective assistance of counsel simply because it does not
work.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004). Defense counsel’s
performance must be measured against an objective standard of reasonableness and without
benefit of hindsight. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). This Court
does not substitute its judgment for that of counsel in a matter of trial strategy. People v Avant,
235 Mich App 499, 508; 597 NW2d 864 (1999).


3
 People v Thomas, unpublished order of the Court of Appeals entered June 18, 2018 (Docket
No. 340545).


                                                 -4-
        To prove ineffective assistance of counsel, a defendant must show “that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (citation and quotation marks omitted).
Further, defendant “has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        Defendant first argues that defense counsel provided ineffective assistance by failing to
move for a mistrial after the prosecution played the portion of the police interview video that the
trial court ruled could not be used in the prosecution’s case-in-chief but only for impeachment
purposes. Defendant contends that the trial court’s instructions to the jury to disregard the video
evidence and its ruling to strike the evidence from the record could not cure the prejudice, and
therefore, defense counsel should have moved for a mistrial. We disagree.

        Trial courts have discretion to grant or deny a motion for a mistrial. People v Alter, 255
Mich App 194, 205; 659 NW2d 667 (2003). “A mistrial is warranted only when an error or
irregularity in the proceedings prejudices the defendant and impairs his ability to get a fair trial.”
People v Waclawski, 286 Mich App 634, 708; 780 NW2d 321 (2009) (quotation marks and
citation omitted). “A trial court should only grant a mistrial when the prejudicial effect of the
error cannot be removed in any other way.” People v Horn, 279 Mich App 31, 36; 755 NW2d
212 (2008).

         Although defendant asserts that defense counsel should have moved for a mistrial, he
fails to explain how not doing so prejudiced him and impaired his ability to get a fair trial. The
record reflects that the trial court stopped the prosecution’s examination of Sergeant Wellman,
struck his testimony from the record and the video evidence presented during his testimony. The
trial court then instructed the jury of its decision and ordered them to not consider that evidence
for their determination whether defendant committed the charged offenses. The trial court issued
a further curative instruction at defense counsel’s request and during the trial court’s final
instructions to the jury told them that they could only consider properly admitted evidence and
could not consider excluded or stricken evidence. “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003). Defendant has not presented anything that establishes
that the trial court’s instructions failed to cure the situation presented in this case and prevented
him from receiving a fair trial. Therefore, we are not persuaded that the circumstances presented
in this case had a prejudicial effect so severe that it was not cured by the instructions the trial
court appropriately issued. Because the trial court’s instructions removed any prejudice to
defendant resulting from the playing of the video, a motion for a mistrial would have been futile.
Defense counsel was not ineffective for failing to make such a futile motion. People v Fike, 228
Mich App 178, 182; 577 NW2d 903 (1998). Accordingly, defendant has failed to establish that
defense counsel’s performance fell below an objective standard of reasonableness and that his
counsel provided him ineffective assistance in this regard.

       Defendant next argues that defense counsel was ineffective for failing to obtain and use
his medical records. We disagree.

                                                 -5-
        “[D]efendant has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Defendant’s medical records from Sinai Grace Hospital were not admitted as evidence during his
trial. Nevertheless, he testified regarding the injuries he claimed he suffered at the hands of
Wynn and the group that accosted him as he left the gas station. Defense counsel used
defendant’s medical records to refresh defendant’s recollection. Defendant has not described the
content of the medical records or explained how they would have been beneficial to his case or
assisted in his defense. We find no factual support for his claim that defense counsel provided
ineffective assistance in this regard.

         Moreover, “[t]he decision of what evidence to present is also presumed to be a matter of
trial strategy.” People v Solloway, 316 Mich App 174, 191; 891 NW2d 255 (2016). In this case,
the record reflects that defense counsel used defendant’s medical records in an appropriate
manner in furtherance of his defense strategy. Defendant’s medical records contained statements
made by defendant that contradicted his trial testimony justifying defense counsel’s decision not
to seek their admission. The prosecution challenged the veracity of defendant’s testimony and
questioned him regarding his statements reported in those records to establish during cross-
examination that defendant lied to medical personnel about his drug and alcohol use. The record
does not establish that defense counsel failed to provide effective assistance by deciding not to
move for the admission of defendant’s medical records. Defense counsel made a decision based
on a reasonable trial strategy. Therefore, defense counsel’s conduct did not fall below an
objective standard of reasonableness and defendant has failed to establish that defense counsel
provided him ineffective assistance.

       Affirmed.

                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Jonathan Tukel
                                                           /s/ James Robert Redford




                                               -6-
