                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 9, 2016
               Plaintiff-Appellee,

v                                                                  No. 324443
                                                                   Jackson Circuit Court
RONALD ALLEN,                                                      LC No. 14-004099-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of two counts of
possession with intent to deliver less than 50 grams of a controlled substance (second or
subsequent offense), MCL 333.7401(2)(a)(iv) and MCL 333.7413(2); and one count of
possession of marijuana, MCL 333.7403(2)(d). He was sentenced as a fourth-offense habitual
offender, MCL 769.12, to 30 to 480 months’ imprisonment for each of his possession with intent
to deliver convictions and to one year’s imprisonment for his possession of marijuana conviction.
We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This appeal arises out of an incident wherein drugs were found inside a coat that was
located near defendant. On February 1, 2014, Renay Smith was working as the bartender at
Keeder’s Show Bar in Jackson, Michigan. According to Smith, defendant arrived at the bar
sometime between 9:00 p.m. and 9:30 p.m., ordered a beer, and began playing pool with an
unidentified woman. Smith further testified that she did not see any other men shooting pool or
at the table when defendant arrived and began playing and that, when she saw him at the bar,
defendant was wearing a white t-shirt and no coat.

        Shortly thereafter, City of Jackson Police Officers Rick Burkhart and Jason Ganzhorn
received a notification on the computers in their patrol vehicles that defendant was on parole and
at Keeder’s, which was a violation of his parole because Keeder’s served alcohol. In separate
patrol vehicles, Burkhart and Ganzhorn drove to the bar and arrived sometime between 9:45 p.m.
and 9:50 p.m. Before entering the bar, Ganzhorn and Burkhart pulled up a picture of defendant
on their computers to familiarize themselves with him. Burkhart testified that, when he entered
the bar, he saw defendant and a woman standing at the end of the pool table. According to

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Burkhart, other than the woman and defendant, there was no one else in close proximity to the
pool table at that time. Burkhart testified that, from his computer, he learned that defendant’s
nickname was “Blood.” Thus, Burkhart said, “Blood,” and defendant responded, “How do you
know my name?” Burkhart testified that he asked defendant to put his pool stick down so that
they could talk. According to Burkhart, there was a table within approximately three feet of
defendant, and there was a beer, a set of eyeglasses, and a cellular telephone on the table.
Burkhart testified that the table had a chair pushed in with a black coat hanging on the chair.
Burkhart further testified that he then obtained consent to search defendant’s pockets.

         In the meantime, Ganzhorn walked in on the main level and observed Burkhart searching
defendant on the upper level. Ganzhorn then went to the upper level to assist Burkhart.
Burkhart testified that defendant had a large quantity of money in both of the back pockets of his
pants, not carried in a money clip or a wallet. Burkhart did not find any weapons or contraband
on defendant, but Ganzhorn and Burkhart determined that defendant was in violation of his
parole. Ganzhorn testified that he began to place handcuffs on defendant and that defendant
indicated that he was getting sick and began to pull toward the door. Burkhart testified that
defendant was “basically dragging” him and Ganzhorn toward the door and that they had to tell
defendant to hold on several times. Burkhart further testified that defendant was saying that he
had high blood pressure and felt sick. According to Burkhart, he did not notice any signs of
medical distress when he first approached defendant, and defendant seemed to be fine when he
was playing pool. According to Ganzhorn, he and Burkhart ultimately walked defendant outside,
and defendant started making dry heaving sounds and bending over at the waist. Burkhart
testified that, while they were outside, Smith stuck her head out the door and asked what to do
with defendant’s belongings. Burkhart further testified that he went back inside the bar with
Smith, who directed Burkhart to the table with the beer, eyeglasses, cellular telephone, and coat.

        Burkhart went over to the table and searched the coat, which was size four XL.
According to Burkhart, he found two knotted plastic bags, which contained marijuana, heroin,
crack cocaine, and prescription pills, in the left chest pocket of the coat. Burkhart testified that
he put the bags back in the coat pocket and went back outside to ask if defendant wanted his
coat. Defendant said that he did not have a coat. According to Ganzhorn and Burkhart, it was
snowy and cold out that night. Burkhart testified that he placed the coat in the trunk of his
vehicle after notifying Ganzhorn of what was in the coat. According to Burkhart, he then
assisted placing defendant into Burkhart’s vehicle. Burkhart testified that he monitored
defendant while Ganzhorn went back into the bar. Ganzhorn testified that he “inquired about the
black jacket and asked anyone inside the bar if it was their black jacket.” He testified that
“[e]veryone stated ‘no.’ ” He further testified that he only recalled one male being inside the bar
other than defendant and that the male was approximately 5 foot 6 inches and approximately 170
pounds. Ganzhorn testified that, when he came back outside, defendant indicated that the
cellular telephone found on the table was his. Burkhart called an ambulance for defendant when
Ganzhorn came back outside. Because there was a lot of snow on the ground that night,
Ganzhorn and Burkhart eventually decided to transport defendant to the hospital themselves
instead of waiting for an ambulance.

       Burkhart drove defendant from the bar to the hospital, and Ganzhorn also drove his
vehicle to the hospital. According to Burkhart and Ganzhorn, defendant was in the emergency
room for approximately one and a half hours. Ganzhorn testified that defendant was
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administered medicine and that hospital personnel checked on defendant multiple times and
checked defendant’s blood pressure. Burkhart testified that defendant was never admitted as a
patient and that, after the hour and a half, medical personnel gave Burkhart and Ganzhorn
medical clearance for defendant, in the form of a signed piece of paper indicating that defendant
did not need further medical treatment.

        Subsequently, Ganzhorn transported defendant to Jackson County Jail. After defendant
was taken to jail, Ganzhorn took the evidence back to the police department. Ganzhorn testified
that one of the bags found in the coat contained marijuana, while the other contained
20 individually wrapped rocks of crack cocaine, an additional rock that was not individually
wrapped, two bags of heroin, and miscellaneous pills. Ganzhorn testified that he field tested one
of the rocks and that it tested positive for cocaine. Ganzhorn further testified that he field tested
the heroin and that it also tested positive.

        An additional $360 was found on defendant at the jail. Ganzhorn testified that the total
amount of money found on defendant was $880, which consisted of all 20-dollar bills, except for
one 100-dollar bill. Ganzhorn testified that no drug paraphernalia such as syringes, pipes, or
rolling papers were found on defendant.

         Defendant was eventually charged as described above. At trial, the prosecution presented
the evidence summarized above through the testimony of Smith, Burkhart, and Ganzhorn. In
addition, the prosecution presented expert testimony. Christy Sekedat, who worked for the
Michigan State Police Forensic Laboratory and who was qualified as an expert in controlled
substances identification, testified that she analyzed a sample of the suspected crack rocks and
that it tested positive for cocaine. Sekedat further testified that she analyzed a sample of the
suspected heroin, which also came back positive.

        Gary Schuette, a detective for the City of Jackson Police Department, was qualified as an
expert in street-level drug sales and dealing. He opined that the suspected marijuana was, in fact,
marijuana. Schuette also testified about his experience with street-level drug dealing and
described the typical dealing methods and the general differences between drug dealers and drug
users:

       [T]ypically street-level drug dealers want to separate themselves from the drugs
       that they’re selling. This is done so that they can remain anonymous if the drugs
       are found and they can claim distance from them. So, for instance, a street-level
       drug dealer will often take his cocaine or his heroin, his marijuana, whatever the
       case may be, place it into a Doritos bag, for instance, and wad it up and throw it
       into a bush which is in proximity to him, that he can access if he needs to, but he
       can walk away from it in case the police come up because it’s such a visible
       occupation, where the police have the opportunity to sit back and surveille them
       and see what they’re doing. But, if they keep themselves distant from the drugs,
       then they can say that’s really not mine. That it’s just trash, somebody threw it
       there. And it’s easy for them to avoid being charged criminally with the drugs
       themselves. Users, on the other hand, because they’re using the drug itself, want
       it close to them because they’re going to use it. They don’t want to be separated
       from the drugs.

                                                -3-
Schuette further testified that it was very common, in his experience, to see someone distancing
himself or herself from the drug that they are selling. According to Schuette, the amount and
denominations of money, the lack of drug paraphernalia, and the quantity, packaging, and variety
of drugs were indicative of someone who was selling the drugs rather than using the drugs.

        Lisa Champion, a forensic scientist for the Michigan State Police, was qualified as an
expert in serology and DNA analysis. She testified that she received a buccal swab sample from
defendant and the coat. Champion testified that she obtained a mixture profile of DNA from
swabbing the collar and cuffs of the coat. According to Champion, when she compared the
major donor profile from the coat to defendant’s buccal swab, the DNA matched “at all locations
except for two,” and defendant could not be excluded as a donor from those two locations.
Accordingly, Champion testified that the probability that one would randomly select an unrelated
individual from the population and have their profile match the profile from the coat was 1 in
2.502 quadrillion for the Caucasian population, 1 in 26.2 quadrillion for the African-American
population, and 1 in 5.519 quadrillion for the Hispanic population. However, Champion
indicated that it was possible for someone to leave their DNA on the coat by picking it up off the
pool table or helping someone take off the coat.

       After the prosecution’s case-in-chief, defendant, through a stipulation with the
prosecution, submitted defendant’s medical records into evidence, “which include[d] his blood
pressure levels . . . his discharge papers and the Emergency Room records of that.” Defendant
published the exhibit to the jury and stated that it indicated that his blood pressure levels “started
very high and were reduced with medication over time.” Defendant then rested.

        During closing arguments, the prosecution argued that defendant’s attempt to get outside
“may or may not have been about a medical issue,” that one’s blood pressure could spike right
before they are arrested with that many drugs, and that defendant may have been trying to pull
the officers away from the drugs in the coat. The prosecution further argued that the coat was at
the table with defendant’s belongings, that it did not make sense for him to be without a coat on a
cold and snowy night, and that defendant’s DNA connected him to the coat. In addition, the
prosecution argued that the money, packing of the drugs, and lack of drug paraphernalia
indicated that the drugs were meant for sale.

       In response, defendant argued that the coat was too big for him because it was a “four
XL,” that he was having legitimate medical issues when the police arrived, and that his DNA on
the coat did not mean that the coat was his. Defendant further argued that someone’s DNA could
be present on the coat if they picked it up off the pool table or helped someone with taking off
the coat. Defendant concluded by arguing that there were no fingerprints on the bags and that
the prosecution had not proven its case beyond a reasonable doubt.

       Defendant was convicted and sentenced as described above. This appeal followed.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant first argues that defense counsel was ineffective for (1) failing to object to
inadmissible hearsay, (2) eliciting testimony that a detective knew of defendant, and (3) failing to


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request a cautionary instruction that the jury could not use defendant’s parole status in
determining his guilt. We disagree.

        The questions presented by a claim of ineffective assistance of counsel are mixed
questions of law and fact; findings of fact by the trial court, if any, are reviewed for clear error,
and questions of constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). Where no Ginther1 hearing was conducted, this Court’s review is
limited to mistakes apparent on the record. People v Wilson, 242 Mich App 350, 352; 619
NW2d 413 (2000). To establish a claim of ineffective assistance of counsel, a defendant must
satisfy two requirements: (1) “his attorney’s performance fell below an objective standard of
reasonableness,” and (2) “this performance so prejudiced him that he was deprived of a fair
trial.” People v Grant, 470 Mich 477, 485-486; 684 NW2d 686 (2004).

        Defendant first argues that defense counsel was ineffective in failing to object to
Ganzhorn’s testimony that he went back into the bar and asked the patrons about the ownership
of the coat, on the grounds that it was hearsay. Hearsay is defined as “a statement, other than the
one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” MRE 801(c). Further, “[t]he Confrontation Clause prohibits the
admission of all out-of-court testimonial statements unless the declarant was unavailable at trial
and the defendant had a prior opportunity for cross-examination.” People v Chambers, 277 Mich
App 1, 10; 742 NW2d 610 (2007). However, “a statement offered to show the effect of the out-
of-court statement on the hearer does not violate the Confrontation Clause.” Id. at 11.
“Specifically, a statement offered to show why police officers acted as they did is not hearsay.”
Id.

         Here, Ganzhorn’s statements concerning actions he took on returning to the bar was not
hearsay; however, Ganzhorn’s testimony that “[e]veryone stated ‘no.’ ” was hearsay not subject
to any exception. Although the statement was made by Ganzhorn in response to the
prosecution’s open-ended question concerning his observations of the patrons of the bar,
nonetheless the statement supported, at least by implication, the prosecution’s claim that
defendant possessed the coat. See People v Henry (After Remand), 305 Mich App 127, 154; 854
NW2d 114 (2014). Thus, defense counsel may have successfully objected to Ganzhorn’s
testimony. However “there are times when it is better not to object and draw attention to an
improper comment.” People v Horn, 279 Mich App 31, 40; 755 NW2d 212 (2008) (quotation
marks and citation omitted). Defense counsel may have believed that it was better not to draw
attention to the fact that nobody else claimed the coat and that the other male in the bar indicated
he had a coat. As defense counsel argued during closing arguments, someone who left his coat
containing drugs at the bar probably would not want to stay near the coat or claim it. Defendant
has failed to overcome the strong presumption that defense counsel’s actions constituted sound
trial strategy. Id.




1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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        Further, even if defense counsel’s conduct was objectively unreasonable, defendant has
failed to show the necessary prejudice. Defendant was within three feet of the coat when police
arrived at the bar and defendant’s DNA matched the DNA found on the coat. The coat was on
the chair at the table where defendant’s cellular telephone, eyeglasses, and beer were located.
Defendant indicated that the cellular telephone was his. Moreover, defendant did not have a coat
on, he denied that he had a coat, and it was a cold and snowy night. Additionally, the
prosecution never made reference to Ganzhorn’s isolated statement, instead focusing its closing
argument on the fact that the coat was near other items belonging to defendant, the DNA testing,
and that it was improbable that defendant would not have a coat on a snowy night in February.
In light of the isolated nature of Ganzhorn’s statement and the remaining evidence tying
defendant to the coat, he has not established that there is “a reasonable probability that the
outcome would have been different but for” defense counsel’s cross-examination of the
detective. Grant, 470 Mich at 486.

         Defendant also argues that his defense counsel was ineffective for failing to request a
limiting instruction in relation to his parole status. Prior to trial, the prosecutor explained that he
planned on introducing the fact that defendant was on parole solely to explain the police contact
at the bar. The prosecutor stated that he did not oppose a limiting instruction, but defendant did
not request one. The decision whether to request a limiting instruction is a matter of trial
strategy, which “this Court will not second-guess . . . with the benefit of hindsight.” People v
Rice (On Remand), 235 Mich App 429, 444-445; 597 NW2d 843 (1999). Here, defense counsel
reasonably may not have wanted to re-emphasize the facts that defendant was on parole and that
the police contact began because he violated his parole. Further, while it was not a limiting
instruction, the prosecutor stated to the jury: “its [sic] very important, the issue of him being on
parole and the Judge will instruct you on this, your [sic] not suppose[d] to hold against him the
fact that he’s on parole. It’s only being offered to show why the Police had contact with him that
day.” Requesting a limiting instruction again would run the risk of re-emphasizing the matter.
Defendant has not overcome the strong presumption that defense counsel’s decision was sound
trial strategy or demonstrated the necessary prejudice. Id.

        Defendant also argues that defense counsel was ineffective in eliciting damaging
testimony that Schuette knew of defendant. On cross-examination, defense counsel asked
Schuette, an expert in street-level drug sales and dealing, how many cases he had worked on in
the Jackson area, and Schuette testified that he had worked on thousands. Subsequently, defense
counsel asked, “In all those thousands of cases, have you ever had contact or investigated or
arrested [defendant]?” Schuette responded, “Yes,” and the following exchange between defense
counsel and Schuette took place:

               Defense counsel: When was that?

              Schuette: I don’t know specifically but I have. I recognize him. I know
       his name, I know his nickname and I’ve heard them [sic].

              Defense counsel: But you have no idea when you would have had contact
       with him?

               Schuette: I’d be guessing.

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                 Defense counsel: When I asked the question, I used multiple words there -
         - contact, involvement and arrest. Do you remember what it was?

                 Schuette: What I recall is his name, his physical likeness, his physical
         appearance and his nickname. As you mention, there’s been thousands. How that
         intertwines into the middle of that, I just cannot recall.

                Defense counsel: So if [defendant] was to testify that he never remembers
         having any contact with you, could he be correct?

                 Schuette: Sure. If he doesn’t remember, he could be correct.

                 Defense counsel: And your memory may stem from something other than
         an arrest. Is that correct?

                 Schuette: Yes.

                 Defense counsel: Other than direct involvement. Is that correct?

                 Schuette: It could.

                 Defense counsel: Other than specific contact with him. Is that correct?

                 Schuette: Yes, sir.

We can discern no strategic reason for defense counsel to embark on this line of questioning. It
appears from the record that defense counsel, perhaps realizing the door he had opened,
attempted to rehabilitate Schuette’s testimony to limit the damage. Nonetheless, even casting
aside the benefit of hindsight, we cannot deem defense counsel’s questions sound trial strategy.
See People v Gioglio (On Remand), 296 Mich App 12, 22; 815 NW2d 589 (2012), vacated in
part on other grounds 493 Mich 86 (2012). Nonetheless, this was an isolated statement made by
Schuette that was not referenced again by the prosecution. Further, Schuette only testified that
he recognized defendant, not that he had arrested or suspected defendant of past crimes. In light
of the other evidence against defendant, we do not find that defendant can demonstrate that
Schuette’s testimony was outcome determinative. Grant, 470 Mich at 486.

                                  III. STANDARD FOUR2 BRIEF

         Defendant next, in propria persona, challenges the admissibility of the DNA expert
testimony on MRE 702 and MRE 403 grounds because the evidence only showed that he could
not be excluded as the perpetrator and because of the use of the “product rule method” of
statistical analysis. We disagree. Because defendant did not challenge the admissibility of the




2
    A supplemental brief filed in propria persona pursuant to Administrative Order 2004-6.


                                                 -7-
expert testimony below, we review the issue for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich 750, 762-765; 597 NW2d 130 (1999).

         With respect to expert testimony, MRE 702 provides:

         If the court determines that scientific, technical, or other specialized knowledge
         will assist the trier of fact to understand the evidence or to determine a fact in
         issue, a witness qualified as an expert by knowledge, skill, experience, training, or
         education may testify thereto in the form of an opinion or otherwise if (1) the
         testimony is based on sufficient facts or data, (2) the testimony is the product of
         reliable principles and methods, and (3) the witness has applied the principles and
         methods reliably to the facts of the case.

“The critical inquiry with regard to expert testimony is whether such testimony will aid the
factfinder in making the ultimate decision in the case.” People v Coy, 243 Mich App 283, 294-
295; 620 NW2d 888 (2000) (quotation marks and citation omitted). Further, the evidence may
only be admitted if it meets the standard of reliability set forth in MRE 702. People v Lane, 308
Mich App 38, 52; 862 NW2d 446 (2014). “The Daubert[3] test examines the reliability of the
evidence” and is designed to “ensure that a jury is not relying on unproven and ultimately
unsound scientific methods.” Id. See also Gilbert v DaimlerChrysler Corp, 470 Mich 749, 781;
685 NW2d 391 (2004) (explaining that “MRE 702 has [] been amended explicitly to incorporate
Daubert’s standards of reliability”).

        With respect to MRE 403, “[r]elevant evidence may be excluded under MRE 403 ‘if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.’ ” People v Meissner, 294 Mich App 438, 451; 812 NW2d
37 (2011), quoting MRE 403. Danger of unfair prejudice exists when “marginally probative
evidence will be given undue or preemptive weight by the jury.” People v Feezel, 486 Mich 184,
198; 783 NW2d 67 (2010) (quotation marks and citation omitted).

        In Coy, 243 Mich App at 301-303, this Court found that certain DNA evidence was
inadmissible under MRE 702 and MRE 403. A serologist in Coy testified that there was a
potential match between the defendant’s DNA and DNA found in a mixed blood sample on a
knife and on a doorknob. Id. at 292-294. However, there was “no statistical interpretation of the
results [] achieved regarding the mixed DNA samples recovered from the knife blade and the
doorknob” performed. Id. at 294. On appeal, the defendant argued that expert testimony
regarding the evidence was inadmissible because it was not accompanied by statistical analysis.
Id. at 286-287. The Coy Court explained that the value of a DNA “match” is limited without
accompanying statistics because “[t]o say that two patterns match, without providing any
scientifically valid estimate . . . of the frequency with which such matches might occur by
chance, is meaningless.” Id. at 301 (quotation marks and citation omitted). The Coy Court



3
    Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).


                                                 -8-
found that, without “some analytic or interpretive evidence concerning the likelihood or
significance of a DNA profile match,” the expert DNA testimony “was insufficient to assist the
jury in determining whether defendant contributed DNA to the mixed sample.” Id. Accordingly,
the expert testimony was inadmissible under MRE 702. Id. With respect to MRE 403, the Coy
Court found that “evidence of a potential match between [the] defendant’s DNA and the mixed
samples [ ] possess[ed] minimal probative value absent accompanying interpretive statistical
analysis evidence.” Id. at 302. Accordingly, there was a significant possibility that the jury
might give the evidence preemptive or undue weight, and the Coy Court held that the DNA
evidence was also inadmissible under MRE 403. Id. at 303.

         Here, the DNA expert testified regarding the statistical significance of the DNA match,
which provided the jury meaningful assistance in determining whether defendant’s DNA was
part of the mixed sample. See id. at 301. Moreover, she testified extensively about her
qualifications and the standards and procedures that were used in analyzing the DNA. Defendant
argues that the standard of reliability was not met because the DNA evidence only showed that
he could not be excluded and because “the prosecution introduce[d] DNA evidence through the
use of probability statistics,” which were calculated using the product rule method. First,
defendant’s argument appears to be based on a misunderstanding of the facts. The DNA expert
testified that “at all but two of the locations on the mixture,” defendant’s DNA was a match, and
he could not be excluded as a donor from those other two locations. Second, pursuant to Coy,
the prosecution was required to introduce interpretative statistical evidence to accompany the
DNA match. Further, in Coy, 243 Mich App at 296 n 7, this Court stated that it “has recognized
the general acceptance within the scientific community of DNA statistical analysis evidence
calculated utilizing the product rule, and judicially noticed the admissibility of these DNA
statistical analyses.” (Quotation marks and citation omitted). Thus, defendant has not shown
plain error with respect to the admission of the DNA evidence under MRE 702. Carines, 460
Mich 750, 762-765.

        Further, with respect to MRE 403, the DNA expert’s testimony was accompanied by
interpretative statistical evidence, and the probability of selecting an unrelated individual who
could be included as a contributor to the mixture exceeded the population on earth. With the
accompanying statistics, the DNA was highly probative to possession of the coat and did not run
the risk of being given undue or preemptive weight. Cf. Coy, 243 Mich App at 302. Defendant
has not shown plain error with respect to the admission of the DNA evidence under MRE 403.
Carines, 460 Mich 750, 762-765.

        Moreover, defendant makes a one sentence argument that he was denied due process due
to the unfair prejudice of the DNA evidence. However, as previously explained, this DNA
evidence was not unfairly prejudicial. Further, we deem the issue abandoned because of
defendant’s cursory treatment of the issue and because he failed to raise it in his statement of the
questions presented. See People v McMiller, 202 Mich App 82, 83 n 1; 507 NW2d 812 (1993)
(deeming an issue abandoned for “failure to raise the issue in the statement of issues presented”
and for “failure to argue the merits of the issue on appeal”).

        Finally, defendant argues that he was constructively denied effective assistance of
counsel because trial counsel failed to subject the prosecution’s case to meaningful adversarial
testing. In Strickland, 466 US at 692, the United States Supreme Court explained that, “[i]n

                                                -9-
certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the
assistance of counsel altogether is legally presumed to result in prejudice.” Moreover, in United
States v Cronic, 466 US 648, 659; 104 S Ct 2039, 2047; 80 L Ed 2d 657 (1984), the United
States Supreme Court explained that there are “three rare situations in which the attorney’s
performance is so deficient that prejudice is presumed.” People v Frazier, 478 Mich 231, 243;
733 NW2d 713 (2007). One of the situations in which prejudice is presumed is where “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. 243 n 10
(quotation marks and citation omitted). However, in Frazier, the Michigan Supreme Court
explained that prejudice is only presumed “when the attorney’s failure is complete” and that the
general standard under Strickland “applies when counsel failed at specific points of the
proceeding.” Id. at 244.

        Here, defendant specifically argues that prejudice should be presumed because trial
counsel failed to subject the prosecution’s case to meaningful adversarial testing for five specific
reasons. These five reasons are alleged failures at specific points in the proceedings (i.e.,
obtaining an expert, challenging the authentication of the drugs after the preliminary
examination, failing to argue insufficient evidence to establish possession, discovery issues and a
failure with respect to a motion to suppress). Therefore, the general standard under Strickland is
the correct standard for analyzing this case, id., and defendant’s argument that prejudice should
be presumed is misplaced. Aside from his conclusory statement that prejudice is presumed,
defendant does not make an argument or explain how the alleged errors prejudiced him. Thus,
because the general standard under Strickland applies, id., and because it is defendant’s burden
under that standard to establish prejudice, Grant, 470 Mich at 485-486, defendant has not
established his five claims of ineffective assistance of counsel. Moreover, we have reviewed the
issues, which defendant largely abandons, and he has failed to demonstrate that defense
counsel’s performance fell below an objective standard of reasonableness. Grant, 470 Mich at
485.

       Affirmed.



                                                             /s/ Mark T. Boonstra
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Christopher M. Murray




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