                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 11, 2016
              Plaintiff-Appellee,

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

              Defendant-Appellant.


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;
521 NW2d 797 (1994); People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995).

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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
agreed with the trial court’s summary, and defendant ultimately remained silent, which evinced

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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.

        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

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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.

       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

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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
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.
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        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).

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




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