                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 20, 2014
               Plaintiff-Appellee,

v                                                                    No. 317322
                                                                     Wayne Circuit Court
CORDIS HENDERSON,                                                    LC No. 12-008708-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and WILDER and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm less than murder, MCL 750.84, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 17 months to 10
years’ imprisonment for the assault with intent to do great bodily harm less than murder
conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm in part,
but remand for resentencing or the trial court’s articulation of substantial and compelling reasons
justifying a sentence departing from the statutory sentencing guidelines.

                                                 I

        Defendant’s convictions arose from a shooting that occurred in a residential
neighborhood in the city of Detroit. During the afternoon of August 26, 2012, Donald
Buckhannon, his fiancé, Monique Long, and their two children were outside of their home on
Beechdale Street playing with their family dog. Buckhannon and Long were videotaping the
children and the dog. Long testified that, when they went inside, she placed the video camera on
the front porch facing defendant’s home, located at 10300 Beechdale Street, which was kitty-
corner from her family’s home.

        After Buckhannon took a nap, he went outside to go to the store. Buckhannon testified
that he and defendant exchanged words regarding the video camera facing defendant’s home.
Then, Buckhannon left for the store. In a 911 recording played for the jury, a caller stated that he
lived at 10300 Beechdale Street, and that the neighbor across the street threatened him. The
caller stated that he was physically handicapped and, “I want to get the police to come out here
and see what his problem is ‘for I take matters into my own hands and blow him away.”
Defendant admitted at trial that he called the police before the shooting.


                                                -1-
        Buckhannon, Long, and their oldest child testified that, when Buckhannon returned from
the store, defendant walked down the steps of his front porch with a shotgun or long gun and
walked toward Buckhannon’s car. Buckhannon and Long testified that defendant began firing
shots in Buckhannon’s direction. Buckhannon was hit by one of the bullets that entered through
the passenger side rear door of his car, which resulted in a graze wound to his right abdomen.
Buckhannon was able to drive away toward a gas station. Long testified that defendant then
turned toward her family’s home and fired three more gunshots while Long was standing in the
front doorway. The oldest child testified that, after the shooting, there was a hole in their home
that had not been there before. A police officer also observed several holes in the home, but he
could not testify whether they were from gunshots.

        At trial, defendant testified differently about the shooting. He claimed that he was sitting
on his porch and Buckhannon, from his own yard, threatened to kill defendant and burn his
house down because defendant was staring at him. Defendant testified that he called the police,
but he was afraid they would not arrive in time to help him. Defendant explained that he left his
house with his shotgun and walked toward the family’s home. Defendant saw Buckhannon reach
under the seat of his car, and start to make a “motion to get a gun out,” so he fired a warning shot
in the air. Defendant claimed that Buckhannon kept coming at him, so defendant fired a shot at
Buckhannon and returned to his house. After the shooting, when defendant talked to the police,
he did not mention that Buckhannon threatened to kill him or burn his house down, or that
Buckhannon had a gun.

        Defendant was later arrested and charged with six counts: (1) assault with intent to
commit murder on Buckhannon; (2) assault with intent to commit murder on Long; (3) assault
with intent to do great bodily harm less than murder on Buckhannon; (4) assault with intent to do
great bodily harm less than murder on Long; (5) discharging a firearm in or at a building; and (6)
felony-firearm. The jury found defendant guilty of assault with intent to do great bodily harm
less than murder on Buckhannon and felony-firearm, but acquitted defendant of the remaining
charges. The recommended minimum sentencing guidelines range was 0 to 17 months, requiring
the trial court to impose an intermediate sanction—“probation or any sanction, other than
imprisonment” under MCL 769.31(b)—but the trial court departed from the recommendation
and sentenced defendant to 17 months to 10 years’ imprisonment for the assault with intent to do
great bodily harm less than murder conviction, and two years’ imprisonment for the felony-
firearm conviction. At sentencing, Long had testified that, as a result of defendant’s actions, her
youngest child wakes up every night screaming, “He got a gun,” and now attends therapy. Long
had further testified that the oldest child is afraid to let her younger brother out of her sight. On
the record and in its written departure evaluation, the trial court ruled that it imposed a sentence
outside of the recommended range due to the psychological harm defendant inflicted on the
children involved in the case.

        Following the verdict, defendant moved for a new trial, arguing that the prosecution
failed to disclose evidence that Buckhannon had prior convictions for unarmed robbery and
armed robbery and defense counsel was ineffective for failing to request this information, which
defendant claimed could have been used to impeach Buckhannon. At an evidentiary hearing,
defendant’s trial counsel testified that he was unaware that Buckhannon was also known as,
“Donal Buckhann,” or that, under this alias, he was convicted of unarmed robbery in 2003 and
two counts armed robbery in 1991. Defendant’s trial counsel further testified that he believed

                                                -2-
that the prosecution had a duty to produce the criminal history of its witnesses, and had he been
more experienced, he would have requested the criminal history from the prosecution. Further,
defendant’s trial counsel testified that, if he had known about Buckhannon’s prior convictions,
he would have used them as impeachment evidence under MRE 609. The trial court denied
defendant’s motion for a new trial, ruling that it would not have allowed the prior convictions to
be introduced at trial and trial counsel’s performance was objectively reasonable, as evidenced
by counsel’s ability to successfully defend against, and obtain an acquittal for, several of the
charges brought against defendant.

                                                 II

         Defendant first contends that he was denied due process when the prosecution withheld
critical impeachment evidence about Buckhannon’s prior convictions. We disagree.

        This Court reviews de novo a defendant’s constitutional due process claim. People v
Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007). The United States Supreme
Court, in Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), held “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” The components of a “true Brady violation” are: (1) the
prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material.
People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014), citing Strickler v Greene, 527 US
263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999). Our Supreme Court described the
contours of the three factors as follows:

       The government is held responsible for evidence within its control, even evidence
       unknown to the prosecution, without regard to the prosecution’s good or bad faith.
       Evidence is favorable to the defense when it is either exculpatory or impeaching.
       To establish materiality, a defendant must show that “there is a reasonable
       probability that, had the evidence been disclosed to the defense, the result of the
       proceeding would have been different.[“] A ‘reasonable probability’ is a
       probability sufficient to undermine confidence in the outcome. This standard
       “does not require demonstration by a preponderance that disclosure of the
       suppressed evidence would have resulted ultimately in the defendant’s acquittal. .
       . .” The question is whether, in the absence of the suppressed evidence, the
       defendant “received a fair trial understood as a trial resulting in a verdict worthy
       of confidence.” In assessing the materiality of the evidence, courts are to consider
       the suppressed evidence collectively, rather than piecemeal. [Chenault, 495 Mich
       at 150-151 (citations omitted.)]

 “Impeachment evidence as well as exculpatory evidence falls within the Brady rule because, if
disclosed and used effectively, such evidence ‘may make the difference between conviction and
acquittal.’ ” People v Lester, 232 Mich App 262, 280-281; 591 NW2d 267 (1998), overruled on
other grounds by Chenault, 495 Mich at 142, quoting United States v Bagley, 473 US 667, 676;
105 S Ct 3375; 87 L Ed 2d 481 (1985).



                                                -3-
        A prior conviction may be used to impeach a witness’s credibility if the conviction
satisfies the criteria set forth in MRE 609. People v Cross, 202 Mich App 138, 146; 508 NW2d
144 (1993). Under Michigan’s reciprocal discovery rules, “a party upon request must provide all
other parties . . . a description or list of criminal convictions, known to the defense attorney or
prosecuting attorney, or any witness whom the party may call at trial.” MCR 6.201(A)(5).
However, the prosecution does not have an affirmative duty to engage in discovery on behalf of
the defendant and to provide the defendant with LEIN information regarding the criminal
histories of its witnesses. People v Elkhoja, 467 Mich 916; 658 NW2d 153 (2003) (adopting the
dissenting opinion in People v Elkhoja, 251 Mich App 417, 452-453; 651 NW2d 408 (2002)
(SAWYER, J., dissenting)).

         Defendant cannot establish a due process violation on the basis of his Brady claim
because he fails to establish that the prosecution suppressed evidence. Although defendant could
have requested a description or list of Buckhannon’s criminal records, MCR 6.201(A)(5), these
records must have been known to the prosecution. Nothing in the record shows that anyone
working on the government’s behalf in this particular case was aware of Buckhannon’s prior
convictions. Cf Kyles v Whitley, 514 US 419, 437-438; 115 S Ct 1555; 131 L Ed 2d 490 (1995).
Rather, Buckhannon’s prior convictions were associated with an alias—“Donal Buckhann”—not
his own name. Again, the prosecution was under no duty to engage in discovery that would have
uncovered Buckhannon’s criminal history under this undisclosed alias. Elkhoja, 467 Mich 916.
Because defendant failed to establish that the prosecution suppressed evidence, we conclude that
the trial court properly denied defendant’s motion for a new trial. Since defendant did not
establish that the prosecution suppressed evidence, we need not address the remaining Brady
factors.

                                                III

        Defendant next contends that his trial counsel was ineffective for failing to investigate
and impeach Buckhannon with the prior convictions for robbery. We disagree. Whether a
person has been denied effective assistance of counsel is a mixed question of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial
court’s findings of fact are reviewed for clear error, and questions of constitutional law are
reviewed de novo. Id.

        The United States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish ineffective
assistance of counsel, the defendant must show that “(1) defense counsel’s performance was so
deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable
probability that defense counsel’s deficient performance prejudiced the defendant.” People v
Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). “The defendant was prejudiced if, but
for defense counsel’s errors, the result of the proceedings would have been different.” Id. at 81.
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). A defendant must also
overcome a strong presumption that the assistance of his counsel was sound trial strategy.
People v Sabin, 242 Mich App 656, 659; 620 NW2d 19 (2000). Trial counsel “has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004). The

                                                -4-
failure to make an adequate investigation is ineffective assistance of counsel if it undermines
confidence in the trial’s outcome. Id. at 493.

        Notwithstanding the admitted failure by defendant’s trial counsel to request the criminal
records of the prosecution’s witnesses or conduct an investigation into Buckhannon revealing his
alias and criminal history under that alias, defendant cannot establish the requisite prejudice.
The trial court ruled that Buckhannon’s prior theft convictions would not have been admissible
under MRE 609(a)(2)(A) and (B).1 But even if they had been admitted, defendant cannot
establish that the result of the proceedings would have been different. Contrary to defendant’s
claim on appeal, this case was not solely a credibility contest between Buckhannon and
defendant. Instead, although Buckhannon’s testimony could have been impeached, it was
corroborated by the testimony of Long and their oldest child. Moreover, a reasonable trier of
fact could conclude that the family’s home was damaged by defendant’s gunshots and that
defendant’s testimony lacked credibility because he told the 911 operator he was going to blow
Buckhannon away and, despite his subsequent testimony at trial, he failed to report to the police
any threat by Buckhannon to kill him or burn his house down. Because defendant’s trial


1
    MRE 609 governs impeaching a witness with a prior conviction, and provides, in pertinent part:


         (a) General Rule. For the purpose of attacking the credibility of a witness,
         evidence that the witness has been convicted of a crime shall not be admitted
         unless the evidence has been elicited from the witness or established by public
         record during cross-examination, and

         (1) the crime contained an element of dishonesty or false statement, or

         (2) the crime contained an element of theft, and

         (A) the crime was punishable by imprisonment in excess of one year or death
         under the law under which the witness was convicted, and

         (B) the court determines that the evidence has significant probative value on the
         issue of credibility and, if the witness is the defendant in a criminal trial, the court
         further determines that the probative value of the evidence outweighs its
         prejudicial effect.

         (b) Determining Probative Value and Prejudicial Effect. For purposes of the
         probative value determination required by subrule (a)(2)(B), the court shall
         consider only the age of the conviction and the degree to which a conviction of
         the crime is indicative of veracity. If a determination of prejudicial effect is
         required, the court shall consider only the conviction’s similarity to the charged
         offense and the possible effects on the decisional process if admitting the
         evidence causes the defendant to elect not to testify. The court must articulate, on
         the record, the analysis of each factor.


                                                   -5-
counsel’s performance did not fall below an objective standard of reasonableness and defendant
cannot establish the outcome of the trial would have been different if the prior convictions had
been admitted as impeachment evidence against Buckhannon, the trial court did not err by
concluding that defendant was not denied the effective assistance of counsel.

                                                IV

       Defendant next contends that the trial court erred when it departed from the sentencing
guidelines range. We agree.

        This Court reviews de novo issues concerning the proper application of the statutory
sentencing provisions. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001).
Statutory interpretation presents a question of law, which is also reviewed de novo. People v
Droog, 282 Mich App 68, 70; 761 NW2d 822 (2009). In reviewing a trial court’s grounds for
departing from the sentencing guidelines, this Court reviews for clear error the trial court’s
factual finding that a particular factor in support of departure exists. People v Babcock, 469
Mich 247, 264; 666 NW2d 231 (2003). However, the determination of whether the factor is
objective and verifiable is a question of law that this Court reviews de novo. Id. Finally, this
Court reviews for an abuse of discretion both the trial court’s determination that the objective
and verifiable factors constitute substantial and compelling reasons to depart, as well as the trial
court’s decision regarding the extent of the departure. Id. at 264-265; People v Anderson, 298
Mich App 178, 184; 825 NW2d 678 (2012). An abuse of discretion occurs when the trial court
chooses an outcome falling outside the permissible principled range of outcomes. Babcock, 469
Mich at 269.

        Only those factors that are objective and verifiable may be considered in determining
whether substantial and compelling reasons exist. Babcock, 469 Mich at 257, 272. Further,
“[t]he court shall not base a departure on an offense characteristic or offender characteristic
already taken into account in determining the appropriate sentence range unless the court finds
from the facts contained in the court record, including the presentence investigation report, that
the characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b).

         Because the recommended minimum sentencing guidelines range was 0 to 17 months—
the upper end being less than 18 months—the trial court was required to impose an intermediate
sanction unless it stated on the record a substantial and compelling reason to sentence defendant
to imprisonment. MCL 769.34(4)(a); MCL 769.31(b); People v Lucey, 287 Mich App 267, 270;
787 NW2d 133 (2010). The trial court properly concluded that the psychological injury
Buckhannon’s children suffered due to defendant’s conduct was a substantial and compelling
reason supporting a departure. This finding of the injury suffered is objective and verifiable, and
in this circumstance, the offense variables failed to take this injury into account. OV 4 could not
be scored because it involves the psychological injury to the victim, here Buckhannon, only.
MCL 777.34. Although OV 5 considers psychological injury to a victim’s family member, it can
only be scored in homicide cases. MCL 777.35(1); MCL 777.22(1). Consequently, these
offense variables failed to give adequate weight to the psychological injury to the victim’s
children.



                                                -6-
       However, while the trial court did not abuse its discretion by determining that the
psychological injury to the children constituted a substantial and compelling reason to depart,
defendant also argues that the trial court failed to offer justification for the extent of the
departure. We agree. A departure from the guidelines range must render the sentence
proportionate to the seriousness of the defendant’s conduct and prior criminal history. People v
Smith, 482 Mich 292, 300, 305; 754 NW2d 284 (2008). A trial court must justify, on the record,
both the departure and the extent of its departure. Anderson, 298 Mich App at 184. We cannot
uphold a sentence when the connection between the reasons given for departure and the extent of
the departure is unclear. Id. at 304. “When departing, the trial court must explain why the
sentence imposed is more proportionate than a sentence within the guidelines recommendation
would have been.” Id.

        The trial court did not specifically state why its imprisonment of defendant was more
proportionate than sentencing defendant within the guidelines to an intermediate sanction. We
note that, if OV 5 could have been scored, defendant would have had a total OV score of 55
points, placing him in PRV Level A and OV Level V, with a minimum sentencing guidelines
range of 5 to 23 months’ imprisonment. MCL 777.65. The trial court’s minimum sentence of 17
months fell within that range, and while it is possible to infer that the trial court found this range
more appropriate than the recommended range of 0 to 17 months, we are precluded from doing
so by the applicable case law. Smith, 482 Mich at 304; Anderson, 298 Mich App at 184. This
Court consequently remands this matter to the trial court for resentencing or an explanation of
why the sentence imposed for defendant’s assault with intent to do great bodily harm less than
murder conviction was more proportionate than a sentence within the guidelines
recommendation would have been.

                                                  V

      Last, defendant contends that the trial court erred by failing to address his objection to the
PSIR. We disagree.

       This Court reviews “the sentencing court’s response to a claim of inaccuracies in
defendant’s PSIR for an abuse of discretion,” People v Spanke, 254 Mich App 642, 648; 658
NW2d 504 (2003), and factual findings are reviewed for clear error, People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013). “A trial court abuses its discretion when it selects an outcome
outside the range of reasonable and principled outcomes.” People v Uphaus, 278 Mich App 174,
181; 748 NW2d 899 (2008).

       The PSIR, must, depending on the circumstances, include “a complete description of the
offense and the circumstances surrounding it.” MCR 6.425(A)(b). MCR 6.425(E)(2) provides:

       Resolution of Challenges. If any information in the presentence report is
       challenged, the court must allow the parties to be heard regarding the challenge,
       and make a finding with respect to the challenge or determine that a finding is
       unnecessary because it will not take the challenged information into account in
       sentencing. If the court finds merit in the challenge or determines that it will not
       take the challenged information into account in sentencing, it must direct the
       probation officer to

                                                 -7-
       (a) correct or delete the challenged information in the report, whichever is
       appropriate, and

       (b) provide defendant’s lawyer with an opportunity to review the corrected report
       before it is sent to the Department of Corrections.

“The sentencing court must respond to challenges to the accuracy of information in a presentence
report; however, the court has wide latitude in responding to these challenges.” Spanke, 254
Mich App at 648. In doing so, the court may determine the accuracy of the information, accept
the defendant’s version, or simply disregard the information challenged. Id. “If the court finds
that challenged information is inaccurate or irrelevant, that finding must be made part of the
record and the information must be corrected or stricken from the report.” People v Waclawski,
286 Mich App 634, 690; 780 NW2d 321 (2009); see MCL 771.14(6). “When a sentencing court
disregards information challenged as inaccurate, the court effectively determines that the
information is irrelevant and the defendant is entitled to have the information stricken from the
report.” Waclawski, 286 Mich App at 690. The sentencing court’s failure to strike disregarded
information can be harmless error. Id.

        The sentencing record reveals that defendant objected to the agent’s description of the
offense in the PSIR, which provided, “[a]fter the complainant drove off, the defendant pointed
the gun at the complainant’s house and fired three more shots, striking the house.” Defense
counsel explained that because the jury found defendant not guilty of the offenses involving
defendant shooting toward the home, this description should be stricken from the PSIR. The trial
court found that this is the agent’s description of the offense, and left the statement in the report.

        Although defendant contends that the trial court failed to adequately respond to his
challenge, the record suggests that the trial court found the information to be an accurate
portrayal of the agent’s description of the offense. The PSIR specifically indicates that the
information “was garnered from a Detroit Police Department Investigator’s Report dated August
28, 2012.” The fact that the jury found defendant not guilty of the offenses relating to defendant
allegedly firing shots at the home was irrelevant to the agent’s description of the offense and was
clearly explained elsewhere in the PSIR. Accordingly, defendant failed to show that the trial
court did not adequately respond to his challenge, or that it abused its discretion by leaving the
statement in the PSIR.

      We affirm in part, but remand for resentencing or an explanation of why the sentence
imposed for defendant’s assault with intent to do great bodily harm less than murder conviction
was more proportionate than a sentence within the guidelines recommendation would have been.
We do not retain jurisdiction.

                                                              /s/ Stephen L. Borrello
                                                              /s/ Kurtis T. Wilder
                                                              /s/ Cynthia Diane Stephens




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