                            Court of Appeals, State of Michigan

                                            ORDER

                                                                         Amy Ronayne Krause
People of MI v Daniel Dante Burch                                          Presiding Judge


DocketNo.    322814                                                      Jane E. M arkey


LCNo.        13-006304-FC                                                Michael J. Kelly
                                                                           Judges



             The Court orders that the motion for reconsideration is GRANTED, and this Court's
opinion issued February 11, 2016, is hereby VACATED.       A new opinion is attached to this order.




                      A true copy entered and certified by .Jerome W. Zimmer Jr., Chief Clerk, on




                            MAY 0 3 2016
                                     Date
                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 3, 2016
              Plaintiff-Appellee,

v                                                                  No. 322814
                                                                   Wayne Circuit Court
DANIEL DANTE BURCH,                                                LC No. 13-006304-FC

              Defendant-Appellant.


                                    ON RECONSIDERATION

Before: RONAYNE KRAUSE, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The
trial court sentenced defendant to life imprisonment for the murder conviction and a consecutive
two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of right.
We affirm.

        Defendant’s convictions stem from the May 10, 2013 shooting death of James Forth. The
prosecution’s theory of the case was that defendant shot Forth, who worked as a security guard,
while trying to rob Forth and take his gun. Forth’s body was discovered sitting in his vehicle at
the rear of the office building he was guarding. The handgun that Forth normally carried for his
work was missing. Although there were no eyewitnesses to the shooting, witnesses described
hearing two gunshots, and, after the shooting, a witness observed defendant walking through the
alley and holding a handgun near the crime scene. Forth died from a single gunshot wound.
Defendant was also treated for a gunshot wound that same day. Defendant’s blood type and
DNA profile matched samples collected from the crime scene. Defendant did not testify at trial.

       Defendant first argues that defense counsel was ineffective by impermissibly infringing
on his right to testify. Because defendant did not raise this ineffective assistance of counsel
claim in the trial court or request an evidentiary hearing pursuant to People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973), our review of this issue is limited to mistakes apparent on the
record. People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003); People v Jordan, 275 Mich
App 659, 667; 739 NW2d 706 (2007). Effective assistance of counsel is presumed and
defendant has a heavy burden of proving otherwise. People v Pickens, 446 Mich 298, 302-303;

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521 NW2d 797 (1994); People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995).
Defendant has the burden of establishing the factual predicate of his claim. People v Hoag, 460
Mich 1, 6; 594 NW2d 57 (1999). To establish ineffective assistance of counsel, defendant first
must show that counsel’s performance was below an objective standard of reasonableness.
People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011). Defendant must overcome the
strong presumption that counsel’s assistance was sound trial strategy. Id. Second, defendant
must show that, but for counsel’s deficient performance, it is reasonably probable that the result
of the proceeding would have been different. Id.

        A criminal defendant has a constitutional right to testify. People v Simmons, 140 Mich
App 681, 683-684; 364 NW2d 783 (1985). While the decision whether to call the defendant to
testify is generally a matter of trial strategy, People v Martin, 150 Mich App 630, 640; 389
NW2d 713 (1986); People v Alderete, 132 Mich App 351, 360; 347 NW2d 229 (1984), the
defendant retains the ultimate authority to decide whether to testify. Jones v Barnes, 463 US
745, 751; 103 S Ct 3308; 77 L Ed 2d 987 (1983); People v Bonilla–Machado, 489 Mich 412,
419; 803 NW2d 217 (2011). Thus, a defendant has the right to testify even if counsel disagrees
with that decision. Simmons, 140 Mich App at 685.

        On the fourth day of trial, the trial court inquired whether defendant intended to testify.
Defendant initially stated that he did not want to testify, then moments later stated that he wanted
to testify. The defense then recalled an investigating officer to testify. After the officer’s
testimony concluded, defense counsel requested a sidebar conference with the court. After the
conference, the defense rested without defendant being called to testify. Later, during defense
counsel’s closing argument, defendant interjected, “Your Honor, may I speak to let them know
what happened?” The trial court said no. Following closing arguments, the trial court stated on
the record:

       One final thing before we have the jury begin their deliberations, and I do note
       that yesterday when the prosecution rested their case, I gave Mr. Evans and Mr.
       Burch the opportunity to, that afternoon and overnight to Mr. Burch, to think
       about whether he wanted to testify or not testify.

       Because there has been, I think it’s fair to say that during the course of the trial he
       had sort of gone back and forth as to whether or not he wanted to testify or not
       testify. Similarly this morning there was some opportunity provided for Mr.
       Evans to confer, I think, on several occasions with Mr. Burch. And Finally Mr.
       Burch indicated he did not want to testify.

The trial court then gave the parties an opportunity to comment on the accuracy of the trial
court’s summary, and defense counsel agreed that the court’s summary was accurate. Defendant
did not object to defense counsel’s agreement with the trial court’s statement.

        Given this record, there is no basis for concluding that defense counsel impermissibly
infringed on defendant’s right to testify. “If defendant [] decides not to testify or acquiesces in
his attorney's decision that he not testify, the right will be deemed waived.” Id. [internal citations
and quotations omitted]. The trial court’s statement after closing arguments gave defendant an
opportunity to assert his right to testify or object to not being able to do so. Defense counsel

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agreed with the trial court’s summary, and defendant ultimately remained silent, which evinced
an implied acceptance of defense counsel’s assertion. As the trial court observed, defendant’s
later statements to the contrary appear to reflect a belated change of heart or potentially
gamesmanship. This characterization is consistent with defendant’s earlier equivocation about
whether to testify.

        In an attempt to show that he was denied his right to testify, defendant stated at
sentencing, “When I asked, [defense counsel] said it was the best thing for me to just be quiet.”
This statement does not indicate that defense counsel prevented defendant from testifying, but
indicates that defendant consulted with defense counsel about whether to testify, and implies that
defendant agreed with counsel’s advice not to testify. The fact that defense counsel believed it
was best that defendant not testify does not establish that counsel impermissibly infringed on
defendant’s right to testify. Defendant did not indicate that defense counsel refused to permit
defendant to testify against defendant’s wishes, and nothing in the record supports any such
conclusion.

         Defendant makes numerous other arguments regarding his right to testify, such as re-
opening proofs after defendant interrupted closing arguments and whether the judge should have
inquired further into defendant’s desire to testify during closing arguments. However, these
arguments are without merit because the trial court ultimately addressed these concerns before
jury deliberations, and defendant ultimately waived his right to testify. When defendant
interrupted closing arguments, it would have been prudent for the trial court to clarify
defendant’s position before proceeding. However, the trial court did make a statement on the
record, after closing arguments, explaining that defendant no longer wished to testify, and
defendant did not object to this statement when given the opportunity. Because defendant did
not object to the trial court explicit statement that “[defendant] indicated he did not want to
testify,” he effectively waived his right to testify. Had defendant objected at this point, the trial
court likely would have been inclined to inquire further into this request and decide whether it
was appropriate to reopen proofs. However, based upon the record, this was not an issue
because defendant waived his right to testify, on the record, when he did not object to the trial
courts explicit statement.

        Furthermore, defendant has not presented any affidavit or other offer of proof to shed
further light on the circumstances surrounding his decision whether to testify, or what advice
counsel may have provided regarding the decision to testify. Defendant is required to provide
factual support for his claim, Hoag, 460 Mich at 6, and the limited record presented fails to
establish any factual support for defendant’s claim that defense counsel impermissibly infringed
on defendant’s right to testify. Therefore, we reject this claim of error.

       Defendant next argues that defense counsel performed deficiently by eliciting testimony
from prosecution witness Isaac Brown, defendant’s half-brother, regarding defendant’s statement
to Brown that he had been shot while “trying to take a gun” from a security guard. Defendant
argues that counsel’s cross-examination of Brown permitted the jury to find that defendant
committed the underlying larceny or robbery and thereby allowed the jury to convict him of
felony murder.



                                                -3-
        Decisions regarding what evidence to present, whether to call and how to question
witnesses, and what evidence to highlight in closing argument are presumed to be matters of trial
strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008); People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999). “This Court will not substitute its judgment for that of
counsel regarding matters of trial strategy, nor will it assess counsel's competence with the
benefit of hindsight.” Id.

        On direct examination, Brown testified that defendant told him that “some guard” was the
person who shot him. On cross-examination, defense counsel asked Brown if he told the police
that defendant had told him that defendant had tried to take the guard’s gun. Brown replied, “He
said a lot of things in the car.” Brown also agreed with defense counsel that defendant was
“experiencing the pain and delusions of being shot” and was “rambling.” However, Brown then
stated that there was “no difference” between his earlier statement and his testimony at trial, and
again stated that defendant told Brown, while they were in the car, that defendant had tried to
take the guard’s gun. During redirect examination, Brown again stated that defendant had told
him that he had tried to take a gun from a security guard. Later, defense counsel questioned the
police officer who interviewed Brown at the hospital. The officer denied that Brown reported
that defendant had said he was shot while taking a security guard’s gun.

        Counsel’s questioning of Brown occurred in the context of asking Brown if he told the
police that defendant had said that he was shot while trying to take the guard’s gun. Counsel was
presumably aware that Brown had made such a statement to medical personnel because it was
contained in a medical record, but counsel was attempting to discredit Brown by revealing that
he had not made a similar statement to the police. The record discloses that counsel later elicited
from the officer who interviewed Brown at the hospital that Brown never reported this
information, thus providing an objective basis for counsel to believe that Brown did not report
that information to the police. Nevertheless, Brown insisted that he conveyed the information to
the police. In response to this apparently unanticipated answer, defense counsel elicited Brown’s
admission that defendant was rambling, in pain, and appeared to be delusional from having been
shot, and, as indicated, counsel later attempted to discredit Brown’s apparently unanticipated
testimony by eliciting the interviewing officer’s denial that Brown had mentioned defendant’s
comment about being shot while trying to take the guard’s gun.

        While defense counsel’s cross-examination of Brown may not have unfolded as counsel
had hoped, it was still strategic, and defendant has not overcome the presumption of sound
strategy. “The fact that defense counsel’s strategy may not have worked does not constitute
ineffective assistance of counsel.” People v Stewart (After Remand), 219 Mich App 38, 42; 555
NW2d 715 (1996). Moreover, we disagree with defendant’s claim that it was Brown’s testimony
that permitted the jury to find that defendant committed the underlying larceny or robbery,
thereby allowing the jury to convict him of felony murder. Several witnesses testified that Forth
was armed with a handgun and that, after the shooting, his gun was missing. After shots were
fired, a witness saw defendant holding a handgun in the area of the shooting. Other evidence,
including testimony and records about the gunshot wound to defendant’s abdomen and DNA
evidence linking defendant to Forth’s car, provided further support for the proposition that
defendant was shot while trying to steal Forth’s gun. Accordingly, there is no reasonable
probability that the outcome would have been different but for the introduction of the challenged
testimony.

                                                -4-
        Defendant also argues that defense counsel was ineffective for not objecting to
defendant’s medical record, which included Brown’s statement that defendant had told Brown
that he tried to steal the guard’s gun. Defendant argues that Brown’s statement was inadmissible
hearsay and, therefore, the medical record should not have been introduced at trial without
redaction.

        “Hearsay included within hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the hearsay rule . . . ” MRE 805. One
exception to the hearsay rule is an admission by party-opponent. MRE 801(d)(2). The statement
qualifies as an admission by a party-opponent when “[t]he statement is offered against a party
and is (A) the party's own statement, in either an individual or a representative capacity . . . ”
MRE 801(d)(2)(A). Another exception to the hearsay rule is the Records of Regularly
Conducted Activity exception. MRE 803(6). In order to be admitted under MRE 803(6) the
evidence must be:

       A memorandum, report, record, or data compilation, in any form, of acts,
       transactions, occurrences, events, conditions, opinions, or diagnoses, made at or
       near the time by, or from information transmitted by, a person with knowledge, if
       kept in the course of a regularly conducted business activity, and if it was the
       regular practice of that business activity to make the memorandum, report, record,
       or data compilation, all as shown by the testimony of the custodian or other
       qualified witness, or by certification that complies with a rule promulgated by the
       supreme court or a statute permitting certification, unless the source of
       information or the method or circumstances of preparation indicate lack of
       trustworthiness. The term “business” as used in this paragraph includes business,
       institution, association, profession, occupation, and calling of every kind, whether
       or not conducted for profit. MRE 803(6).

         In this case, defendant made a statement to Brown about trying to steal the guard’s gun,
which Brown then relayed to the hospital staff. This statement was later introduced against
defendant via the medical record. In People v Armstrong, 175 Mich App 181, 186; 437 NW2d
343, 345 (1989), the court held that “statements[] being made by defendant and used against him
at trial, were not inadmissible hearsay.” Furthermore, Brown was available to testify, allowing
defendant to impeach Brown’s testimony. Therefore, Brown’s statement about what defendant
admitted is admissible under MRE 801(d)(2)(A).

        Next, as conceded by defendant, the introduction of the medical records containing
Brown’s statement is admissible under the Records of Regularly Conducted Activity exception.
MRE 803(6). It is likely that the statement and record of defendant’s injury was kept pursuant to
regular business activities. Therefore, this statement was admissible under MRE 803(6).
Moreover, Brown’s underlying statement appears to have qualified for admission under MRE
801(d)(1)(B), which provides that a prior statement by a testifying witness is not hearsay if it is
“consistent with the declarant's testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive.” The thrust of
defense counsel’s inquiries into the fact that Brown did not tell the police that defendant had
stated that he tried to take Forth’s gun was at least an implicit charge that Brown was fabricating
his trial testimony on this point, perhaps to ward off suspicion stemming from the police’s

                                                -5-
discovery of Brown’s weapon. The prosecutor noted during closing argument that Brown had
made this prior consistent statement to hospital employees before any motive to lie to the police
arose.

        Had counsel objected, the trial court could have found that the statement in the medical
record was admissible as hearsay within hearsay under MRE 805. Brown’s statement to hospital
personnel is admissible under MRE 801(d)(2)(A), and the statement in the medical record is
admissible under MRE 803(6), and MRE 801(d)(1)(B). Therefore, counsel cannot be deemed
ineffective for not objecting to this evidence. People v Eisen, 296 Mich App 326, 329; 820
NW2d 229 (2012).

        In our original opinion, we neglected to address the issues defendant raises in his late-
filed Standard 4 brief, which we granted leave to file after oral argument.

        In his Standard 4 brief, defendant first argues that the trial court should have found him
incompetent. Competence to stand trial is presumed. MCL 330.2020(1); People v Davis, 310
Mich App 276, 288; 871 NW2d 392 (2015). Defendant asserts that it should have been readily
apparent from his expressions of confusion throughout the proceedings that he did not
understand what was going on. He further asserts that the trial court should not have penalized
him for refusing to cooperate with the independent psychologist assigned by the court to conduct
a forensic examination of defendant’s competency. Defendant seriously mischaracterizes the
record. First, we defer to the trial court’s superior ability to assess the credibility of those who
actually appeared before it, something we cannot readily do from a transcript. See McGonegal v
McGonegal, 46 Mich 66, 67; 8 NW 724 (1881). Second, it is readily apparent from the report
the psychologist provided that defendant fully understood the purpose of the evaluation and its
significance, and he was malingering, not actually confused or incompetent. We find nothing in
the record1 suggestive of a true inability to “understand[] the nature and object of the
proceedings against him or . . . assist[] in his defense in a rational manner.” MCL 330.2020(1).
We find that the trial court correctly concluded that defendant’s alleged incompetence was a
sham.

        Defendant next argues that he was denied his right to counsel of his choice, an attorney
allegedly retained by his mother, and the trial counsel ostensibly forced on him was an unreliable
character who repeatedly failed to appear at hearings, malingered his own health issues, “used
his client to support his manipulatively dramatic courtroom antics, and was held in contempt
multiple times for outrageous misconduct.” There is some merit to what defendant says, insofar
as the record does reveal several instances of inappropriate and emotional outbursts by counsel.
Furthermore, defendant correctly states that he has a right to choose his own retained counsel;
however, it is not an absolute right. People v Aceval, 282 Mich App 379, 386-387; 764 NW2d
285 (2010). The trial court clearly took defendant’s assertion at the commencement of trial that
he was unhappy with counsel and wanted a different attorney who his mother had retained.


1
  In addition, although the trial court would not have had access to it and it has not played a role
in our findings (because competence is not necessarily a static trait), we note that defendant’s
handwritten brief is one of the more lucid and coherent such briefs we have read.


                                                -6-
Defendant’s recitation of the facts omits the trial court’s observation that the named alternate
attorney had made no effort to inform the court, submit an appearance, or even mention the
representation to the prosecutor when the prosecutor and alternate attorney had coincidentally
conversed the previous day. The trial court also took note of the psychiatric report of
defendant’s obstructive behavior, as well as the extensive efforts and preparations counsel had
gone to on defendant’s behalf. Considering the timing of defendant’s request—literally at the
start of trial—and his apparent obstructionist behavior, we do not believe the trial court
erroneously denied defendant his right to counsel of choice. Aceval, 282 Mich App at 386-389.
We have already addressed whether counsel was, in the end, ineffective.

        Defendant next argues that the only eyewitness anywhere near the scene of the crime had
clearly been influenced by an unduly suggestive photographic lineup, and otherwise, “the
evidence boiled down to Mr. Burch’s alleged confession to Isaac Brown when en route to the
hospital and hearsay in a medical report, both subject to credibility testing and the latter subject
to admissibility.” We note that there was also DNA evidence, but we accept that it was
considered a “low level DNA sample.” Nevertheless, we have already determined that the
confession and the medical report were properly admitted, and this would be enough basis to
sustain defendant’s conviction even without the identification.

        Additionally, defendant mischaracterizes the testimony. Fitzpatrick was not unable to
identify defendant at the preliminary examination, he was not asked to after he stated that he was
unsure whether he could. More importantly, the allegedly suggestive photographic lineup is
simply a mystery: Fitzpatrick was shown photographs “right there outside of the hospital” by an
unknown police officer taken from a security camera “from that building,” which was not itself
identified, and Fitzpatrick identified defendant in one of the photographs as the man he saw at
the scene. The officer in charge of the case did not state that the lineup was unduly suggestive,
but rather was “tainted” because he did not know who showed it to Fitzpatrick or what the
photographs were, so he opted not to pursue his identification any further. The confused nature
of the photographs shown to Fitzpatrick was presented to the jury, as was the fact that the license
plate number Fitzpatrick provided was a digit off from the vehicle defendant drove. Finally,
Fitzpatrick clarified at trial that he had seen the face of the man in the hoody, but not the man’s
hair. In the end, there is simply nothing about the situation to suggest that the photographic
lineup shown to Fitzpatrick was in any way suggestive. See People v Kurylczyk, 443 Mich 289,
302-303; 505 NW2d 528 (1993).

        Defendant next argues that the prosecution suppressed exculpatory evidence in the form
of video camera surveillance records of the shooting. The testimony indicates that the victim’s
car was, in fact, under video surveillance. The testimony further implies that at least one police
officer had access to the video recording to show images from that recording to Fitzpatrick. The
testimony does not explain why the video recording was not presented at trial and, seemingly,
not even taken into evidence. However, both defense counsel and the prosecutor addressed the
recording during closing argument, the prosecutor stating that “if I had a video that showed
[defendant] definitively doing something, you would have seen it.” We appreciate defendant’s
frustration with the video’s unexplained absence, but there is nothing in the record to suggest that
it would have been in any way exculpatory aside from defendant’s own circular assertion of his
own innocence. Whatever value the video recording might have is purely speculative.
Therefore, because there is no evidence that the police or the prosecution acted in bad faith, any

                                                -7-
failure to preserve or present the video recording is not a violation of due process. People v
Huttenga, 196 Mich App 633, 642-643; 493 NW2d 486 (1992).

        Defendant finally argues that trial counsel was ineffective for failing to properly object to
the medical report and for failing to properly investigate the surveillance video recording. As to
the latter, for the reasons already discussed, defendant has not established that any such
investigation would have yielded anything that would have affected the outcome of the
proceedings. See Armstrong, 490 Mich at 290. As to the former, defendant provides a slightly
different argument than did appellate counsel, but we have already considered the arguments
defendant presents in discussing the matter above. Suffice to say that for the reasons already
stated, we find that the medical report was properly admitted. Consequently, we do not find trial
counsel to have been ineffective.

       Affirmed.

                                                              /s/ Amy Ronayne Krause
                                                              /s/ Jane E. Markey




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