                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 23, 2015
               Plaintiff-Appellee,

v                                                                   No. 320113
                                                                    Saginaw Circuit Court
STEPHEN DEMARSHA WHITE,                                             LC No. 13-039010-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                   No. 320289
                                                                    Saginaw Circuit Court
STEPHEN DEMARSHA WHITE,                                             LC No. 13-039010-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.

PER CURIAM.

       Defendant was convicted of assault with intent to murder, MCL 750.83; discharge of a
firearm at or in a building, MCL 750.234b; felon in possession of a firearm, MCL 750.224f;
carrying a dangerous weapon with unlawful intent, MCL 750.226; carrying a concealed weapon,
MCL 750.227; and four counts of possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant appeals as of right, and we affirm.

        In the early evening hours of July 22, 2013, a horrible assault occurred. Lasharda
Peoples saw her son, Edward Christopher, who was at that time standing at the corner of
Hamilton and Wayne Streets in Saginaw. Peoples walked over to him to ask for a cigarette. As
she walked back to her house, she heard a car swerve and stop. She turned around and saw
defendant get out of a vehicle and start shooting at her son. Peoples was the only witness at trial
that identified defendant. Approximately eight months after trial, Peoples executed an affidavit
recanting her trial testimony identifying defendant as the shooter. Peoples averred that she
believed defendant was the shooter based on surrounding events and circumstances, including

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information she had received from her son, but she did not actually see defendant shoot at her
son.

       Subsequently, the matter was remanded from this Court to the trial court to hear a motion
for new trial predicated on a claim of newly discovered evidence (People’s recantation), as well
as on defendant’s claim that he received ineffective assistance of counsel at trial. People v
White, unpublished order of the Court of Appeals, entered September 23, 2014 (Docket Nos.
320113, 320289).

         At the hearing held on remand, Peoples acknowledged that she testified at trial that
defendant was the shooter. However, Peoples testified, she could not see the shooter’s face. She
testified that she thought defendant was the shooter in part because of an earlier fight involving
defendant, during which defendant told her son to “stay right here, I’ll be right back.” Peoples
also testified that she thought defendant was the shooter because she had “run-ins” with him, and
that after a previous run-in, her older son was killed. She also testified that she was on seizure
medicine and was “going into an episode” at the time of the shooting.

        Lakeisha Pringle testified with respect to defendant’s claim that he had received
ineffective assistance of trial counsel. Pringle testified that she and defendant had been in a
dating relationship at the time of the shooting. She testified that defendant was with her at the
hospital on July 22, 2013, after she had a severe asthma attack. Pringle admitted that she had no
records to show that she was at the hospital on July 22, and she could not remember what time
she went to the hospital or when she was released. She testified that she called the office of
defendant’s attorney, James Gust, eight or nine times and left messages with the secretary, but he
never returned her call. Pringle explained that she left a message that she wanted to confirm
defendant’s alibi. Pringle stated that she tried to approach defense counsel at defendant’s trial,
but “never made contact.” Gust testified that he could not be certain, but he recalled someone,
possibly defendant’s girlfriend, called him to tell him about an alibi for defendant. Gust testified
that he talked to her and “the alleged time of the offense did not conform with the time that she
said he was with her.” Gust stated that he was unable to check his files regarding defendant’s
case because he gave the files to defendant’s appellate counsel.

        The trial court stated that it watched Peoples testify both at trial and at the hearing. The
judge explained that at trial, Peoples was “feisty” and “very sure of herself,” but that at the
hearing, Peoples was “not feisty,” “seems fearful,” and “seems unsure of herself.” The judge
stated that she did not find Peoples’s motion testimony credible, and did not find it to be a basis
for a new trial. The judge also concluded that the evidence regarding Peoples’s medication could
have been discovered with due diligence before trial.

         Regarding the claim that defense counsel was ineffective for failing to investigate an
alibi, the judge held that the test for ineffective assistance was not met. The judge stated that she
did not find Pringle’s testimony “helpful or believable.” The judge characterized as “absolutely
incredible” Pringle’s assertion that she called Gust eight or nine times and that she was even at
the trial but could not connect with him. The judge denied defendant’s motion for a new trial.

       Defendant argues that the court erred in denying his motion for new trial predicated on a
claim of newly discovered evidence, i.e., Peoples’s recantation of her identification of defendant

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as the shooter. This Court reviews the denial of a motion for a new trial for an abuse of
discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “An abuse of discretion
occurs when the trial court renders a decision falling outside the range of principled decisions.”
People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). “In reviewing the trial court’s
decision, due regard must be given to the trial court’s superior opportunity to appraise the
credibility of the recanting witness and other trial witnesses.” People v Canter, 197 Mich App
550, 560; 496 NW2d 336 (1992). “Underlying questions of law are reviewed de novo . . . while
a trial court’s factual findings are reviewed for clear error.” People v Terrell, 289 Mich App
553, 559; 797 NW2d 684 (2010) (internal citation omitted).

        “Historically, Michigan courts have been reluctant to grant new trials on the basis of
newly discovered evidence.” People v Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012). “For
a new trial to be granted on the basis of newly discovered evidence, a defendant must show that:
(1) ‘the evidence itself, not merely its materiality, was newly discovered’; (2) ‘the newly
discovered evidence was not cumulative’; (3) ‘the party could not, using reasonable diligence,
have discovered and produced the evidence at trial’; and (4) the new evidence makes a different
result probable on retrial.” Cress, 468 Mich at 692, quoting People v Johnson, 451 Mich 115,
118 n 6; 545 NW2d 637 (1996). “[T]he discovery that testimony introduced at trial was perjured
may be grounds for ordering a new trial.” People v Barbara, 400 Mich 352, 363; 255 NW2d
171 (1977). “However, where newly discovered evidence takes the form of recantation
testimony, it is traditionally regarded as suspect and untrustworthy.” Canter, 197 Mich App at
559.

       Resolution of this issue rests with the fourth factor. The testimony of Peoples was the
only evidence adduced at trial that identified defendant as the shooter. Defendant contends that
without the testimony of Peoples, the prosecution could not place him at the scene of the crime
or connect him to the crime in any way.

        However, Peoples did not retract other testimony that provides circumstantial evidence
that defendant was the shooter. “Circumstantial evidence and reasonable inferences therefrom
may be sufficient to prove all the elements of an offense beyond a reasonable doubt.” People v
Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). Peoples maintained that she
thought defendant was the shooter because of the earlier fight and defendant telling her son to
“stay right here, I’ll be right back.” At trial, Peoples testified that it was less than 10 minutes
between defendant saying he would be back and the shooting. Additionally, Peoples testified
that defendant’s friends had contacted her and told her not to come to court. At the motion
hearing, Peoples admitted that her son said defendant was the shooter at first, but that he later
told her that defendant was not the shooter. Peoples also admitted that she previously said her
son was scared and that he did not come to court because he was afraid. Peoples admitted she
was afraid of the defendant and then changed her statement to indicate she was afraid of the
defendant’s friends. The unretracted portion of Peoples’s testimony provides sufficient
circumstantial evidence that a jury could infer that defendant was the shooter beyond a
reasonable doubt.

        Further, the trial judge stated that Peoples’s testimony at the motion hearing was not
credible based on how Peoples appeared at the motion hearing compared to the trial, as well as
People’s admitted fear of defendant and then clarification indicating fear of defendant’s friends.

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This Court must give “due regard . . . to the trial court’s superior opportunity to appraise the
credibility of the recanting witness and other trial witnesses.” Canter, 197 Mich App at 560.

         Defendant argues that Peoples testified in a subdued manner at the motion hearing
because the prosecutor discussed the consequences of perjury and mentioned the possibility that
she could be arrested after testifying. However, the prosecutor did not ask Peoples about perjury
until cross-examination. Defendant also contends that there were hints in Peoples’s trial
testimony that she did not testify truthfully at trial. Defendant points out that Peoples was
impeached on several points at trial, and she reached unusual conclusions. This argument is
essentially one of credibility, i.e., Peoples’s motion hearing testimony is credible because there
were hints from trial that she was lying then. However, this argument ignores the opposite
conclusion: Peoples’s motion hearing testimony is not credible because it is inconsistent with her
trial testimony. In any event, the trial court is in a better position than this Court to determine
Peoples’s credibility.

        Defendant also argues that the trial court erred when it found that he did not demonstrate
ineffective assistance of counsel. “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 judge first must find the facts, and then must decide whether
those facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” Id. “This Court reviews a trial court’s factual findings for clear error and reviews de
novo questions of constitutional law.” People v Dendel, 481 Mich 114, 124; 748 NW2d 859,
amended on other grounds 481 Mich 1201 (2008). “A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court, on the whole record, is left with the
definite and firm conviction that a mistake has been made.” Id. at 130 (internal quotation
omitted). “[R]egard shall be given to the special opportunity of the trial court to judge the
credibility of the witnesses who appeared before it.” Id. (quoting MCR 2.613(C)).

       “To prove that defense counsel was not effective, 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), citing Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
“The defendant was prejudiced if, but for defense counsel’s errors, the result of the proceeding
would have been different.” Id. at 81.

        “The failure to make an adequate investigation is ineffective assistance of counsel if it
undermines confidence in the trial’s outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d
686 (2004). Here, the determination of whether trial counsel made an adequate investigation
turns upon the credibility of trial counsel Gust and defendant’s former girlfriend, Pringle. Gust
recalled talking with someone, possibly defendant’s girlfriend, about an alibi, but the time of the
alibi and the time of the offense did not match. Gust testified that he could not be sure it was
Pringle, but he only had one inquiry about an alibi in the last year, and he assumed it was this
case. Pringle testified that she called Gust’s office eight or nine times, left messages, and never
got a call back. Pringle stated that she was prepared to testify that defendant was with her at the
hospital on July 22, 2013. Pringle admitted that she had no hospital records, did not recall when
she went to the hospital, how long she stayed, or when she was released.

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        Defendant predicates his claim of ineffective assistance on Gust’s alleged failure to
investigate Pringle’s alibi claim. The judge found that Pringle’s testimony was not helpful or
believable. The judge thought that Pringle’s claim that she called eight or nine times and never
got a call back “doesn’t make any sense.” The judge also thought it was “incredible” that Pringle
could remember defendant was with her on the specific day of the crime when Pringle could not
recall anything else about the timeframe of her hospital stay. The judge found Gust’s testimony
credible regarding that he spoke with someone about an alibi for defendant, however the time of
the alibi did not match with the time of the offense. Thus, the trial court essentially found that
Gust did investigate the possibility that defendant had an alibi from the only information he
received about such a defense.1

         Deferring to the trial court’s credibility determinations, nothing in the record undermines
the court’s conclusions. Moreover, defendant does not explain why he would not have insisted
at trial that Pringle be called because she could provide him with an alibi. Therefore, defendant
fails to show that counsel’s representation fell below an objective standard of reasonableness.
Defendant is also unable to show the requisite prejudice given the weight of the testimony
adduced at trial, including Peoples’s identification, and the less than conclusive nature of
Pringle’s testimony.

        Finally, defendant argues that the prosecutor committed misconduct when he made a
statement that implied that Peoples’s son was afraid to testify at trial. Because this issue was not
raised below, appellate review is limited to whether there was plain error that affected
defendant’s substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must
have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third
requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of
the lower court proceedings.” Id. “It is the defendant rather than the Government who bears the
burden of persuasion with respect to prejudice.” Id. (internal quotation omitted). “Reversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. at 763-764, (citations
omitted; alteration by Carines Court).

        Issues of prosecutorial misconduct are reviewed “on a case-by-case basis by examining
the record and evaluating the remarks in context, and in light of defendant’s arguments.” People
v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). The disputed comment came during
the following exchange between Peoples and the prosecutor:


1
    Defendant further argues that Gust violated MCR 6.005(H)(5) by not retaining defendant’s
trial files. This argument impacts Gust’s credibility. The trial court assessed the credibility of
Gust and the alleged alibi claim and found the alleged alibi claim was not credible. Thus, this
possible violation by Gust is not determinative of ineffective counsel in this case since it was
factored and weighed regarding to credibility.


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               Q. Even today, do you know where your son is at today?

               A. My—which son?

               Q. Edward?

               A. No. No, he’s probably with the baby momma. I don’t know.

               Q. Since this time, July 22nd, have you seen Edward at all?

               A. Not that much.

               Q. Okay. You talk to him, at least?

               A. Yes.

               Q. All right. So you know he’s someplace in the—safe, at this point?

               A. Yes.

               Q. Okay, and, indeed, we’ve asked you if you know where he’s at correct?

               A. Right.

               Q. And you don’t know where he’s at?

               A. I don’t. [Emphasis added.]

        Defendant suggests that the highlighted statement could lead jurors to infer that Peoples’s
son was unavailable because he was afraid to testify at trial. However, the question does not in
any way link defendant to the issue of her son’s safety. In context, the prosecutor is simply
eliminating the possibility that her son was not available for trial because something had
happened to him. The jury would most likely wonder about the absence at trial of the apparent
target of the shooting.

       Even if the jury did interpret the prosecutor’s statement in the manner suggested by
defendant, the requisite prejudice is not shown. Here, the primary evidence against defendant
was Peoples’s eyewitness testimony that defendant was the shooter. The possible inference that
Peoples’s son might be afraid to testify would not have affected the outcome in light of that
testimony.

       Affirmed.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ William B. Murphy
                                                            /s/ Deborah A. Servitto


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