                           Court of Appeals, State of Michigan

                                           ORDER
                                                                      Amy Ronayne Krause
People of MI v George Michael Mack                                      Presiding Judge

Docket No.   336282                                                   Jane E. Markey

LC No.       2015-001096-FC                                           Michael J. Riordan
                                                                        Judges


               The Court orders that the motion for reconsideration is GRANTED, and this Court's
opinion issued May 17, 2018, is hereby VACATED. A new opinion is attached to this order.



                                                      /s/ Amy Ronayne Krause




                             August 14, 2018
                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 14, 2018
               Plaintiff-Appellee,

v                                                                    No. 336282
                                                                     Kalamazoo Circuit Court
GEORGE MICHAEL MACK,                                                 LC No. 2015-001096-FC

               Defendant-Appellant.


                                     ON RECONSIDERATION

Before: RONAYNE KRAUSE, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

        Defendant, George Michael Mack, appeals by right his jury convictions of first-degree
premeditated murder, MCL 750.316(1)(a); two counts of carrying or possessing a firearm during
the commission of a felony (felony-firearm), MCL 750.227b; possession of a firearm while
ineligible to do so (felon-in-possession), MCL 750.224f; aggravated stalking, MCL 750.411i;
and first-degree felony murder, MCL 750.316(1)(b). The trial court sentenced defendant to serve
life without the possibility of parole each for his first-degree murder convictions, to serve 6 to 10
years in prison each for his convictions of felon-in-possession and aggravated stalking, and to
serve two years in prison each for his convictions of felony-firearm. On appeal, defendant raises
several claims of error that he argues warrant a new trial. For the reasons explained below, we
affirm.

                                        I. BASIC FACTS

       Defendants’ convictions arise out of incidents involving his girlfriend, Erica Bell, which
occurred in July and August 2015, and culminated in the shooting death of Erica’s brother,
Edward Bell, on August 9, 2015.

       Testimony and evidence established that defendant came to the home that he and Erica
had previously shared on 1330 North Rose Street in Kalamazoo, Michigan. Edward, Erica, and
their mother’s boyfriend, Nathanael Moore, were cleaning and repairing the home after someone
trashed it. Erica felt that defendant caused the damage and wanted to change the locks and alarm
code. Erica and defendant argued, and Edward intervened.



                                                -1-
        The evidence showed that defendant left the home and returned minutes later with an
AK-47 assault-style rifle. He entered the home at the side door where Moore was changing the
lock, told Moore that the dispute did not involve him, and Moore retreated to the driveway.
Defendant then confronted Edward and Erica, who were standing in the kitchen. After a brief
conversation, defendant fired several shots into the kitchen. Evidence showed that one bullet
struck Edward in the back and perforated his lung. Another bullet blasted through his arm.
Edward crawled out onto the deck behind the home and died.

                                   II. GRUESOME IMAGES

                                 A. STANDARD OF REVIEW

        Defendant first argues that the trial court erred when it allowed the prosecutor to admit
images of Edward’s body at the scene of the shooting. He maintains that the images were
gruesome and that the prosecutor only sought their admission for their shock value. This Court
reviews de novo whether the trial court properly interpreted and applied the rules of evidence.
People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). This Court reviews a trial
court’s decision to allow the admission of evidence for an abuse of discretion. Id. A trial court
abuses its discretion when its decision falls outside the range of reasonable outcomes. Id. A trial
court necessarily abuses its discretion when it admits evidence that is inadmissible as a matter of
law. People v Roper, 286 Mich App 77, 91; 777 NW2d 483 (2009).

                                         B. ANALYSIS

        Relevant evidence is generally admissible. Id.; MRE 402. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” MRE 401.

        The images at issue depicted Edward as he appeared when he died at the scene of the
shooting. The images showed the extent of his injuries, including the size of the entry and the
exit wounds and the extensive loss of tissue caused by the bullet that struck his arm. The images
also visually depicted Edward’s loss of blood.

        The images were relevant to corroborate Sergeant Aaron Wiedbrauk’s recollection of
Edward’s state when he arrived just moments after the shooting. Corroboration of Wiedbrauk’s
description of Edward’s condition made it more likely that he accurately recalled other details,
such as seeing a man other than Moore pacing in front of the home and fleeing through the yard
in the direction of Burdick Street. The images had a minimal tendency to bolster Wiedbrauk’s
credibility. See People v Layher, 238 Mich App 573, 579-580; 607 NW2d 91 (1999) (stating
that evidence implicating a witness’ credibility is almost always relevant).

        The images similarly corroborated Specialist Gary Latham’s testimony concerning the
reconstruction of the crime scene. He testified at length about how he determined the origin and
trajectory of the shots that were fired. He opined that two impact sites were likely the points of
impact for the bullets that struck Edward. He came to that conclusion in part on the basis of the
blood splatter and tissue associated with those impact sites.



                                                -2-
       The images of the exit wound on Edward’s chest as it appeared at the time of his death
strongly supported an inference that Edward had turned his back to the shooter and was fleeing
when he was shot. The image also suggested that the bullet would have projected blood splatter
on a nearby surface when exiting Edward’s chest even though he wore a shirt. Likewise, the
photo of the injury to Edward’s arm visually depicted the loss of tissue that Edward suffered
from that bullet, which tissue necessarily went somewhere after the bullet tore through Edward’s
arm. Accordingly, the images served as a visual aid to help the jury understand Latham’s
testimony and corroborated his recitation of the factual bases for his opinion. See People v Mills,
450 Mich 61, 72-74; 537 NW2d 909 (1995) (providing that images of a victim’s injuries may be
relevant to corroborate a witness’ testimony).

        Latham also discussed Edward’s loss of blood and used the blood evidence to offer
testimony about Edward’s last moments and his continued effort to get away from the shooter
before he collapsed and died. The images added considerable weight to Latham’s conclusion
that Edward had been facing away from the shooter’s location and toward the exit to the
backyard when the shooter fired the shots that struck him. That is, the images tended to suggest
that Edward was fleeing when he was shot and that he suffered grievous injuries that quickly
incapacitated him. The images helped the jury to understand that Edward likely could not have
taken any steps to conceal a weapon—had he had one—and that any such weapon would likely
be covered in the blood. See People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002)
(stating that, if evidence is relevant, it does not matter that the evidence gives rise to multiple
inferences or that an inference gives rise to further inferences).

       Taken together, the images were highly relevant to the jury’s understanding of the
circumstances surrounding the shooting and with the other testimony and evidence supported an
inference that Edward was unarmed and trying to flee when the shooter gunned him down. See
id. Accordingly, the evidence was relevant and admissible. See MRE 401; MRE 402.

        Relevant evidence may be excluded despite MRE 402 if “its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” MRE 403. Nevertheless, “[a]ll
evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of prejudice does not
generally render the evidence inadmissible.” Mills, 450 Mich at 75. So the fact that the images
at issue were gruesome did not of itself require exclusion. Id. at 76. Rather, the inquiry was
whether the probative value of the images was substantially outweighed by the danger of unfair
prejudice. Id.

       As discussed, the images provided context and support for Wiedbrauk’s and Latham’s
testimony. And the autopsy images were likely a poor substitute for the images depicting
Edward’s condition immediately after the events at issue. Autopsy images depict a corpse in a
somewhat sanitized and clinical setting that removes many of the corroborating details. As such,
the autopsy images were less probative than the depiction of Edward’s body as it was when
found. Moreover, the natural revulsion occasioned by the images from the scene did not warrant
exclusion. Cf. People v Turner, 17 Mich App 123, 132-133; 169 NW2d 330 (1969) (opining that
autopsy images should be scrutinized more than images from the scene of the crime or of the
victims’ bodies because jurors are generally capable of rationally viewing images from the
scene). The images taken immediately after the events at issue were also not particularly
gruesome. Even the close up images of Edward’s injuries did not involve such untoward detail

                                                -3-
that a reasonable juror would be unable to fairly assess their probative value. That is, there was
no danger that “evidence which is minimally damaging in logic will be weighed by the jurors
substantially out of proportion to its logically damaging effect.” Id. at 75-76 (quotation marks
and citation omitted). Therefore, the trial court’s decision to allow the images was within the
range of reasonable and principled outcomes. See Yost, 278 Mich App at 353.

                                III. OTHER ACTS TESTIMONY

                                  A. STANDARD OF REVIEW

        Defendant next argues that Officer Tim Millard should not have been allowed to testify
about his previous interactions with defendant. He also maintains that defense counsel’s failure
to object amounted to ineffective assistance of counsel.

        This Court reviews de novo whether the trial court properly interpreted the rules of
evidence and the trial court’s ultimate decision to allow or exclude evidence for an abuse of
discretion. Roper, 286 Mich App at 90-91. But because defendant failed to preserve this claim
of error, this Court’s review is limited to determining whether there was a plain error that
affected defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). To establish a plain error that warrants relief, defendant must show that the error was
plain or obvious and affected the outcome of the lower court proceedings. Id. This Court
reviews de novo whether defense counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and, if so, whether there is a reasonable
probability that but for counsel’s error, the result of the proceedings would have been different.
Yost, 278 Mich App at 387.

                                          B. ANALYSIS

        Although evidence of a person’s character is often relevant, because there is a significant
danger that the jury will overestimate the probative value of character evidence, the rules of
evidence strictly limit both the circumstances under which character evidence may be admitted
and the types of character evidence that may be admitted. Roper, 286 Mich App at 91. A party
may not, for that reason, present evidence of “other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity therewith.” MRE 404(b)(1).
Evidence of other crimes, wrongs, or acts, may, however, be admissible to prove something
other than action in conformity with character. See MRE 404(b)(1) (stating that evidence of
other acts may be admitted for other purposes and listing examples); Roper, 286 Mich App at 92.

        Although MRE 404(b) generally prohibited the prosecutor from presenting evidence of
defendant’s criminal record, the prosecutor had to present evidence that defendant was ineligible
to carry or possess a firearm as a result of a prior conviction in order to establish the elements of
the felon-in-possession charge. See People v Bass, 317 Mich App 241, 267-268; 893 NW2d 140
(2016). Absent a stipulation by defendant that he had a prior felony conviction, the prosecutor
could present evidence to establish that he had such a conviction. People v Nimeth, 236 Mich
App 616, 627; 601 NW2d 393 (1999).

      Our Legislature has determined that a prosecutor may present evidence that the defendant
engaged in other acts of domestic violence in order to prove a charge involving domestic
                                                -4-
violence. See MCL 768.27b(1). Accordingly, the prosecutor could also present evidence in this
case that defendant had engaged in acts of domestic violence to prove the charge of aggravated
stalking. See MCL 768.27b(5)(a)(iv) (defining domestic violence to include engaging in activity
against a family or household member that would cause a reasonable person to feel terrorized,
frightened, intimidated, harassed, or molested); MCL 768.27b(5)(b)(iii) (defining a family or
household member to include a person with whom the defendant has a child in common).

        At trial, the jury heard that police officers had responded to the home that defendant had
once shared with Erica for calls involving domestic violence and that one call involved a firearm.
Erica also informed the jury without objection that defendant sold illegal narcotics for a living
and had owned numerous firearms. Thus, the jury had information that defendant had engaged
in illegal activities and that he routinely carried or possessed firearms, which included an assault-
style weapon that was seized by officers during an incident of domestic violence.

       After this testimony, Millard testified that he had patrolled the area where Erica and
defendant lived and that he had been involved with a law enforcement team that specialized in
drug and weapon offenses. Millard testified with respect to the domestic violence incident that
Erica described as having happened on July 4, 2015. He stated that he did not respond to 1330
North Rose, but instead went to defendant’s home address on Burdick Street. He explained that
he knew where defendant lived from patrolling and from previous contact with him.

        The trial court asked Millard on behalf of the jury how he knew defendant and “what
interactions had you had?” Milliard stated in reply:

               I patrol that area quite frequently, specifically the 1300 block of North
       Burdick is a predominantly busy area for drug related offenses and activity of that
       nature.

              At a current time—or at a previous time then the day of July 4th,
       [defendant] has been on probation or parole status.

               I’ve been involved in two searches at his home in reference to allegations
       that had been received to their office of which involved drug or weapons offenses
       at the home that he would be in violation of for a probation or parole status. From
       that information, if probation or parole officer would respond to the home with
       the assistance of us and conduct a search of the home per the conditions of that
       situation. On both times we went there on that information, we did not locate
       guns, did not locate weapons, it was merely information that they had received
       and were doing a check on to validate that information.

               I’ve dealt with [defendant] before in the area for driving on a suspended
       license status but I take pride in the fact that when I patrol a particular area and
       specifically the area that I work, that block there, it’s imperative that I know the
       people that are living in those specific neighborhoods. And when it comes to
       problem area specifically that block, the 1300 block of North Burdick, it’s
       imperative that I know and can distinguish between the neighbors and the homes
       and the residences for specific incidences in relation to what we’re dealing with

                                                 -5-
       here today. In relation to knowing the information of a potential suspect involved
       in a home at 1330 North Rose Street and the relations of the males and females
       that reside at that home to knowing where they reside in proximity to that scene,
       being imperative to the apprehension of a suspect by letting officers know
       seconds of this call going out that this would be an area or a home of interest as
       that is where in fact resides for those officers who were responding that aren’t
       familiar or don’t know the area specifically.

         On appeal, defendant argues that Millard’s testimony was inadmissible, highly
prejudicial, and could not be cured with a jury instruction. Specifically, he maintains that
Millard implied that defendant was one of the criminals in the neighborhood, had been involved
in past criminal activities, and was involved with drugs and weapons. Defendant also complains
that it was entirely irrelevant that Millard had searched defendant’s home and caught him driving
on a suspended license.

        Millard did not testify that defendant was a neighborhood drug dealer. To be sure, he
stated that defendant lived in a neighborhood that was known for drug and weapon offenses, but
he did not state that defendant himself had been caught with drugs or illegal weapons. Rather, he
stated that he took pride in knowing the residents of that neighborhood, where they resided, and
the relationships between the “males” and the “females” such that he could make possible
connections between homes “of interest” in “proximity” to a particular scene and give
information to his less knowledgeable coworkers regarding a “potential suspect.” This testimony
did not involve improper character to propensity evidence. See People v VanderVliet, 444 Mich
52, 63; 508 NW2d 114 (1993) (“If the proponent’s only theory of relevance is that the other act
shows defendant’s inclination to wrongdoing in general to prove that the defendant committed
the conduct in question, the evidence is not admissible.”).

        In addition, Millard did not testify that he knew that defendant had actually been involved
with drugs and weapons. Although his answer was not the model of clarity, Millard never stated
that he observed defendant with drugs or weapons. He related that defendant had been on parole
or probation and that he knew him and his residence because he twice helped defendant’s parole
officer search defendant’s home after someone made “allegations” that defendant had drugs or
weapons in violation of the conditions on his parole. He clarified that they did not find evidence
to “validate” the allegations during the searches. Thus, although Millard did let slip that
defendant was on parole before the parties submitted the stipulation to the jury, he did not offer
any testimony that defendant had in fact committed any drug or weapon offenses. He simply
related that he had participated in searches after someone accused defendant of possessing drugs
or weapons.

        To the extent that this testimony could be said to involve improper other-acts evidence,
see MRE 404(b)(1), we note that the improper testimony involved the fact that defendant was on
parole at some point in the past and that someone had made allegations against him that were not
validated. Because the parties intended to offer a stipulation that defendant had been previously
convicted of a felony, and it is common knowledge that felons are frequently paroled with
conditions, any prejudice occasioned by Millard’s testimony that defendant had been on parole
was minimal. Moreover, Millard did not specifically identify the offense or offenses for which
defendant was on parole. He did testify generally that someone had alleged that defendant

                                               -6-
possessed drugs or weapons, but he also indicated that they did not find any drugs or weapons
after they searched his home. Further, others testified that officers found heroin in the residence
at 1330 North Rose, that the heroin belonged to defendant, and that he sold it. Millard’s
testimony about the character of the neighborhood and the allegations against defendant while he
was on parole were, when compared with that testimony, not particularly prejudicial. Millard
did improperly inform the jury about one other act: that defendant had driven on a suspended
license. Nevertheless, Millard’s statement about defendant’s suspended license—although
irrelevant—did not involve the kind of prejudice that might cause the jury to act out of bias.

        When considered as a whole, we conclude that Millard’s response touched on improper
other-acts evidence and, for that reason, the trial court plainly erred to the extent that it allowed
Millard to digress into other acts and otherwise failed to address his improper response with a
jury instruction. But when considered in light of the evidence that had already been adduced and
the fact that the parties intended to stipulate that defendant had a felony conviction, we further
conclude that any prejudice was insignificant and paled by comparison to the strong evidence of
defendant’s guilt. Consequently, the trial court’s failure to limit Millard’s answer or to give the
jury a limiting instruction on its own initiative did not affect the outcome of the trial. See
Carines, 460 Mich at 763. For the same reason, defendant’s trial counsel’s failure to object or
request a limiting instruction did not amount to ineffective assistance of counsel.

        To establish a claim of ineffective assistance of counsel, defendant must show that trial
counsel’s failure to object or request a curative instruction fell below an objective standard of
reasonableness under prevailing professional norms and whether there is a reasonable probability
that without this error, the result of the proceedings would have been different. Yost, 278 Mich
App at 387. The jury already heard evidence that defendant was involved with drugs and
incidents of domestic violence, and Millard’s rambling answer to the jury question did not
involve specific allegations that defendant had been involved with drugs or illegal weapons.
Indeed, he stated that they were unable to validate the allegations that defendant had drugs or
weapons. On this record, even if a reasonable trial lawyer in defense counsel’s position would
have objected and requested a curative instruction, the prejudice occasioned by Millard’s answer
was not such that it had any effect on the jury’s verdict. See id.

        Defendant has not demonstrated that Millard’s testimony or defense counsel’s failure to
object to Millard’s testimony amounted to error that warrants a new trial.

                                 IV. EVIDENTIARY HEARING

                                  A. STANDARD OF REVIEW

        Defendant next argues that the trial court abused its discretion when it denied his request
to hold an evidentiary hearing to determine why his defense counsel chose not to present the
defense of alibi or the defense of self-defense at trial. This Court reviews a trial court’s decision
whether to grant a motion for an evidentiary hearing for an abuse of discretion. People v Unger,
278 Mich App 210, 216-217; 749 NW2d 272 (2008). A trial court abuses its discretion when it
selects an outcome that it outside the range of reasonable and principled outcomes. Id. at 217.

                                          B. ANALYSIS

                                                -7-
        The defendant has the burden to establish the factual predicate for his or her claim that
defense counsel provided ineffective assistance. People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001). Thus, it may be necessary for the trial court to hold an evidentiary hearing on
a claim of ineffective assistance when a defendant has a potentially meritorious claim but the
factual record is insufficient to resolve the claim. See People v Ginther, 390 Mich 436, 442-443;
212 NW2d 922 (1973). The defendant bears the burden to demonstrate the need for an
evidentiary hearing to establish facts that would advance his or her position. See People v
McMillan, 213 Mich App 134, 142; 539 NW2d 553 (1995). To meet that burden, the defendant
must make an offer of proof that establishes the need for an evidentiary hearing. See MCR
7.211(C)(1) (stating that a motion for an evidentiary hearing filed in the Court of Appeals must
be supported by an affidavit or other proof regarding the facts to be established); People v
Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007) (providing that the defendant must set
forth facts that demonstrate the need for an evidentiary hearing); People v Armstrong, 124 Mich
App 766, 771-772; 335 NW2d 687 (1983) (stating that the defendant must proffer factual
support for his claim that defense counsel knew about a viable defense and failed to present it).

        In May 2017, defendant moved for a new trial or an evidentiary hearing on the ground
that his trial counsel provided ineffective assistance. Specifically, he alleged that defense
counsel filed a notice of intent to present an alibi defense and a notice of intent to present the
defense of self-defense. He argued that it was necessary to hold an evidentiary hearing to
determine why defense counsel failed to present either defense because there was no record
evidence as to why he chose not to present the defenses.

       Defendant submitted an affidavit in support of his motion for an evidentiary hearing. He
averred that he went to the residence at 1330 North Rose and was told to leave. After Erica
began throwing dirt at his Cadillac, he moved his car to his grandmother’s house, which was
around the corner. He then returned to the house to retrieve some money. He claimed that Erica
and Edward confronted him as he was going upstairs, and Edward punched him. He further
averred that he ran from the living room when Edward pulled out a .38 caliber revolver and
began firing at him. Defendant claimed that he retrieved the AK-47 from under the kitchen sink,
by which time Edward was standing at the back door with the revolver. He then shot Edward
with the AK-47 out of fear for his life.

        Defendant’s affidavit did not establish a question of fact that needed to be resolved with
an evidentiary hearing. As the trial court recognized at the hearing on defendant’s motion,
defendant essentially abandoned his claim that he had a viable alibi defense. Defendant’s
averments establish that there was no factual dispute that he was at 1330 North Rose during the
time at issue and that he shot Edward with an AK-47. Given his averments, there were no
factual developments that could show that defense counsel could have presented a viable alibi
defense. See People v Holland, 179 Mich App 184, 192; 445 NW2d 206 (1989). Defense
counsel cannot be faulted for failing to present a meritless alibi defense. See People v Riley, 468
Mich 135, 142; 659 NW2d 611 (2003).

        Defendant’s self-defense claim was also meritless under the facts stated in his affidavit.
As the prosecutor correctly notes on appeal, defendant did not have the legal right to be in the
home on 1330 North Rose because he was prohibited from being there as a condition of his
release on bond; indeed, he was likely committing a crime—stalking, see MCL 750.411i(2)(b)—

                                                -8-
by entering the home for a second time after having been told to leave. As such, he could not
present statutory self-defense as a defense to murder. See MCL 780.972(1) (providing that a
person may use deadly force if he or she is not engaged in a crime at the time he or she uses
deadly force and may use deadly force anywhere he or she has the legal right to be).

        Even assuming that defendant could have asserted a common law claim of self-defense,
see People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010), defendant failed to establish
that there was need to investigate defense counsel’s failure to pursue that defense.
Notwithstanding defendant’s affidavit, the evidence at trial established that defendant left the
home after a verbal dispute and threats of physical violence. The evidence showed that he then
returned with an AK-47, told Moore that he did not need to get involved, and proceeded to gun
down Edward. The forensic evidence showed that defendant shot Edward in the back as he ran
from the kitchen and that he survived only long enough to crawl to the stairs leading down from
the deck. Testimony and evidence established that Edward did not have the .38 caliber revolver
found at the home in his possession and that the revolver was not loaded. There was also no
evidence that a .38 caliber revolver had been fired anywhere in the house. The evidence showed
that police officers arrived within minutes and that Moore and Erica did not have the opportunity
to alter the crime scene to conceal evidence that Edward was armed or even coordinate their
stories and agree to frame defendant.

        Given the overwhelming evidence contradicting defendant’s claim of self-defense, the
trial court had no obligation to hold an evidentiary hearing to ascertain why defense counsel
chose not to pursue that defense. See Williams, 275 Mich App at 200. On the record before the
trial court, the claim of self-defense was so patently lacking in merit that the trial court could
reasonably conclude—as it did—that defense counsel made a strategic decision to forgo that
defense without the need to question defense counsel at an evidentiary hearing. See Riley, 468
Mich at 140 (“the defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy”). Indeed, the evidence so firmly contradicted defendant’s
version of events that it is arguable that no reasonable lawyer in defense counsel’s position
would have presented the defense of self-defense.

        The trial court did not abuse its discretion when it determined that defendant had not
established the need for an evidentiary hearing on his claim of ineffective assistance of counsel.
See Unger, 278 Mich App at 217.

                V. INEFFECTIVE ASSISTANCE AT PLEA NEGOTIATION

        In a brief submitted on his own behalf, defendant next argues that he did not receive
effective assistance of counsel during the plea-bargaining process.

        “[A] defendant is entitled to the effective assistance of counsel in the plea-bargaining
process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). To establish
ineffective assistance of counsel in the plea-bargaining context, defendant must show that
defense counsel’s representation fell below an objective standard of reasonableness and that the
outcome of the plea process would have been different with competent advice. Id. at 592.
Notably, defendant bears the burden of showing that he would have accepted the plea, that the


                                               -9-
prosecutor would not have withdrawn the plea, that the trial court would have accepted the
terms, and that the terms would have been less severe than under the judgment of sentence. Id.

       On appeal, defendant avers that defense counsel never informed him that the prosecutor
had offered him a plea deal. He further avers that he would have accepted the plea offer and
maintains that had he been able to accept the plea offer, his highest possible minimum sentence
would have been 25 years rather than life without the possibility of parole.

        The only evidence that the prosecutor had offered a plea agreement appeared in a pretrial
notice filed with the trial court at the time of the pretrial hearing. Under a section titled
“OFFERS,” someone hand wrote, in relevant part: “Plead Ct 1 and Ct 2 Dr Remainder.” On the
notice, someone also checked the box indicating that defendant was present at the pretrial
hearing, and the record shows that he was present at that hearing. Additionally, the record shows
that defendant’s regular trial counsel was not present at this hearing, but that another lawyer
appeared on his behalf. Defendant has not averred or otherwise established that he did not
review the pretrial notice at that time or that substitute counsel did not advise him about the offer
that appears on that notice. He only averred that his regular trial counsel did not advise him of
the offer. Consequently, on this record, he has not established that defense counsel knew about
the offer or otherwise deprived him of the opportunity to accept the offer as a result of his failure
to properly advise him about it. See Douglas, 496 Mich at 592 (“The defendant has the burden
of establishing the factual predicate of his ineffective assistance claim.”).

         Defendant has also not shown that he would have accepted the plea offer—despite his
averments to the contrary. Defendant claims that his maximum minimum sentence under the
offer would have been 25 years in prison, but the plea offer indicated that defendant had to plead
guilty to Count 1, which was open murder. When a defendant pleads guilty to open murder, the
trial court must “proceed by examination of witnesses to determine the degree of the crime, and
shall render judgment accordingly.” MCL 750.318. Had defendant pleaded guilty to open
murder, the trial court could have heard testimony about the circumstances of the shooting and
found that the appropriate degree was first-degree premeditated murder. See People v Watkins,
468 Mich 233, 238-239; 661 NW2d 553 (2003). Indeed, given the overwhelming evidence of
guilt, it was probable that the trial court would have found that defendant committed first-degree
murder in the absence of a specific agreement to plead to second-degree murder. As such, the
trial court would have been obligated to sentence defendant to life without the possibility of
parole. See MCL 750.316(1). Defendant has not his burden of showing that he would have
accepted the offer that was actually made.

        For the same reason, defendant cannot show that the sentence he received—life without
the possibility of parole—was more severe than the sentence he would have received under the
plea offer because there was a high probability that a plea to the charge of open murder would
have resulted in the same sentence, and the prosecutor’s agreement to drop the remaining
charges would not have altered the minimum term of his imprisonment. See Douglas, 496 Mich
at 592.

      Defendant has not shown that defense counsel’s handling of the prosecutor’s plea offer
amounted to ineffective assistance of counsel.


                                                -10-
               VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       Defendant also argues on his own behalf that his appellate counsel was ineffective.

        A defendant has the right to the effective assistance of appellate counsel in his first
appeal by right. See People v Caston, 228 Mich App 291, 304; 579 NW2d 368 (1998). The test
for ineffective assistance of appellate counsel is the same as that for trial counsel: the defendant
must show that his or her appellate counsel’s “decision not to raise a claim . . . fell below an
objective standard of reasonableness and prejudiced his [or her] appeal.” People v Uphaus (On
Remand), 278 Mich App 174, 186; 748 NW2d 899 (2008).

        Defendant generally argues that his appellate counsel did not provide effective assistance
by failing to raise “trial errors,” but only identifies two claims of error that he feels should have
been brought. He states that appellate counsel should have raised a claim that his trial counsel
provided ineffective assistance by failing to advise him of the plea offer and should have raised a
claim of ineffective assistance premised on defense counsel’s decision to proceed to trial
“without having a defense theory with readily available witnesses, and not holding the
prosecution to its heavy burden of proof.” Defendant has abandoned his claim that appellate
counsel provided ineffective assistance by failing to identify the “trial errors” that he claims
should have been raised on appeal. See People v Martin, 271 Mich App 280, 315; 721 NW2d
815 (2006). Likewise, by failing to offer any meaningful discussion of defense counsel’s actual
arguments and performance at trial and how appellate counsel might have demonstrated that
defense counsel’s performance was deficient, defendant has abandoned his claim that appellate
counsel should have raised the two claims involving ineffective assistance of trial counsel. Id.

        Further, as already discussed, the record does not support defendant’s claim of ineffective
assistance premised on his defense counsel’s purported failure to advise him of the prosecutor’s
plea offer. Defendant failed to show that he would have accepted the offer actually made and
failed to show that the sentence he would have received would have been less severe than the
sentence after his jury verdict. As such, defendant cannot show that appellate counsel’s failure
to bring that claim affected the outcome of his appeal. See Uphaus, 278 Mich App at 187.

        Finally, it is evident that trial counsel had a defense theory at trial even though he chose
not to present the defenses of alibi or self-defense. Defense counsel argued that the prosecution
had not established guilt beyond a reasonable doubt because it was plausible that Moore shot and
killed Edward. As this Court has explained, “[a]ppellate counsel may legitimately winnow out
weaker arguments in order to focus on those arguments that are more likely to prevail.” Id. at
186-187. In the absence of evidence tending to show that defense counsel’s decision was not a
matter of sound trial strategy, appellate counsel could reasonably conclude that defendant would
be more likely to prevail on a claim that the trial court erred when it denied the motion for an
evidentiary hearing. As such, defendant has not overcome the presumption that his appellate
counsel’s decision was itself a matter of sound strategy. See id. at 186.

                                    VII. RIGHT TO TESTIFY

      Just before oral argument on this case, this Court permitted defendant to file a second
supplemental appellate brief. Defendant argues that he was denied his right to testify at trial,

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wrapping this assertion in a claim of ineffective assistance of counsel. Defendant also asserts
other claims of ineffective assistance of counsel that are either patently meritless or have already
been discussed and rejected by this Court. Regarding his main argument, defendant asserts that
his counsel never advised him of his right to testify, and that he never knowingly, voluntarily or
intelligently waived his right to testify. Consequently, defendant claims he was denied his
constitutional right to testify in support of his claim of self-defense.

         Defendant does not support these assertions with either his own affidavit or an affidavit
of trial counsel. As such, defendant has failed to establish the factual predicate of his claim of
ineffective assistance of counsel. See Carbin, 463 Mich at 600-601. Moreover, calling
witnesses and the presentation of evidence are matters of trial strategy. People v Russell, 297
Mich App 707, 716; 825 NW2d 623 (2012). Defendant has not overcome the strong
presumption that not presenting defendant’s testimony was reasonable trial strategy. See Riley,
468 Mich at 140. Further, because defendant asserts that his testimony would have supported his
self-defense claim and because this Court, based on defendant’s own affidavit submitted with his
motion for an evidentiary hearing, has already determined that defendant’s self-defense claim
was meritless, defendant cannot establish that he was prejudiced by his failure to testify.

         Additionally, defendant’s underlying claim that he was denied his constitutional right to
testify also does not merit relief. Defendant asserts that the record does not reflect his
affirmative waiver of his right to testify, but defendant points to no part of the record that shows
he expressed to the trial court his alleged desire to testify on his own behalf. While a criminal
defendant has a due process right to testify at his or her own trial, a waiver of this right is not
required to be on the record. People v Simmons, 140 Mich App 681, 684; 364 NW2d 783
(1985). A defendant must claim his right to testify, without query from the trial court, or
defendant is deemed to have waived the right. Id. at 684-685, citing United States v Ives, 504
F2d 935, 939-940 (CA 9, 1974). A defendant waives his right to testify if he or she “decides not
to testify or acquiesces in his attorney’s decision that he not testify[.]” Simmons, 140 Mich App
at 685 (citation omitted); see also People v Harris, 190 Mich App 652, 661-662; 476 NW2d 767
(1991). In this case, defendant waived his right to testify by not affirmatively expressing a desire
to do so. Harris, 190 Mich App at 661-662; Simmons, 140 Mich App at 684-685. And, as
noted, defendant cannot establish that he was prejudiced by failing to testify regarding his
meritless claim of self-defense.

        The remaining claims defendant presents in his second supplemental brief are either
patently meritless or have already been considered and rejected by this Court. There were no
errors warranting a new trial.

       We affirm.

                                                             /s/ Amy Ronayne Krause
                                                             /s/ Jane E. Markey
                                                             /s/ Michael J. Riordan




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