                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 30, 2014
                Plaintiff-Appellee,

v                                                                    No. 317384
                                                                     Wayne Circuit Court
AUNDRE RASHAD WOODLAND,                                              LC No. 12-010753-FC

                Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

      Defendant appeals his jury trial conviction of conspiracy to commit assault with intent to
commit murder under MCL 750.157a and MCL 750.83. For the reasons stated below, we affirm.

                           I. FACTS AND PROCEDURAL HISTORY

        The jury convicted defendant of conspiring with an unidentified gunman to assault the
victim, with the intent to murder him, after the victim and two other individuals (“the Starks”)
confronted defendant in the apartment of the victim’s girlfriend. The victim testified that he had
an on-again, off-again relationship with his girlfriend, who was also the mother of his child.
During the early morning hours of July 4, 2010, the victim went to his girlfriend’s apartment
with the Starks to pick up some clothes. He found defendant inside the apartment and assaulted
him. Defendant left the apartment, but returned approximately 15 to 20 minutes later and
knocked on the front door. After the victim answered the door, defendant backed away from the
door in a fighting stance. As the victim walked toward him, a man with a shotgun emerged from
some bushes and shot the victim multiple times.

        At trial, the jury heard testimony from the victim, his erstwhile girlfriend, and police
officers involved in the investigation. Neither of the Starks testified at trial. The victim and a
Detroit Police officer both testified that they attempted to locate the Starks, but were not able to
do so. The trial court denied defendant’s request for a missing witness instruction under CJI2d
5.12,1 with respect to the absence of the Starks.


1
    CJI2d 5.12 provides:


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        On appeal, defendant argues that his counsel gave him ineffective assistance because she
did not: (1) investigate the potential testimony of the Starks; and (2) ask for the prosecution’s
assistance in locating the Starks before she requested a missing witness instruction.

                                          II. ANALYSIS2

                        A. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant must establish that his lawyer’s performance fell below an objective standard
of reasonableness and that there is a reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d
288 (2012). Counsel is strongly presumed to have rendered adequate assistance and to have
made all significant decisions in the exercise of reasonable professional judgment. Id. at 670.
An attorney’s decisions regarding whether to call a witness are matters of trial strategy. People v
Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). A strategic choice made after less than a
complete investigation may constitute deficient performance. People v Trakhtenberg, 493 Mich
38, 52; 826 NW2d 136 (2012). Defense counsel has a duty to make a reasonable investigation or
to reasonably decide that a particular investigation is unnecessary. Id.

                                   1. WITNESS TESTIMONY

        The failure to present a witness constitutes ineffective assistance of counsel only where
the defendant is deprived of a substantial defense. People v Payne, 285 Mich App 181, 190; 774
NW2d 714 (2009). “A substantial defense is one that might have made a difference in the
outcome of the trial.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).

        Here, defendant wrongly claims that the Starks’ absence prevented him from mounting a
substantial defense. Defendant never explains how exactly the Starks’ testimony would have
benefited him, with good reason—their testimony would not have helped him in any way,
because they did not witness the crime with which he was charged. As noted, defendant was
charged with conspiracy, and the charge rested on the premise that he and the gunman conspired
to lure the victim outside the girlfriend’s apartment, where the gunman then shot him. Because
any conspiracy between defendant and the gunman had to have been made before the actual
assault—at a time when, by all indication, the Starks were still inside the girlfriend’s
apartment—the Starks would have had no knowledge of the existence (or non-existence) of the
conspiracy. Accordingly, their testimony could not have benefited defendant in any way.


       [State name of witness] is a missing witness whose appearance was the
       responsibility of the prosecution. You may infer that the witness’s testimony
       would have been unfavorable to the prosecution’s case.
2
  Defendant did not raise this ineffective assistance of counsel issue in a motion for a new trial or
request for a Ginther hearing, and our review is limited to mistakes apparent from the record.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973); and People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002).


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       Moreover, the jury heard testimony that the Starks were inside the apartment when the
victim was shot, but there is no indication that they witnessed the actual shooting, which took
place outside the apartment. If they did not witness the shooting, their testimony would have
been of little value to defendant. In other words, defendant cannot establish that the Starks’
absence at trial in any way deprived him of a substantial defense.3

                            2. MISSING WITNESS INSTRUCTION

       Upon request, the prosecutor is obliged to assist a defendant in locating and serving
witnesses. MCL 767.40a(5); and People v Burwick, 450 Mich 281, 288-289; 537 NW2d 813
(1995). A missing witness instruction under CJI2d 5.12 may be appropriate where defendant
requests assistance in locating a witness, but a prosecutor fails to provide reasonable assistance.
People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003). Though “[t]here may be other
occasions that warrant the jury instruction; in every instance, the propriety of reading CJI2d 5.12
will depend on the specific facts of that case.” Id. at 421.

        In this case, defendant unconvincingly asserts that his trial attorney misunderstood the
law when she requested a missing witness instruction on the Starks, but did not ask for the
prosecution’s assistance in locating the Starks before she asked for the instruction. The trial
attorney did not ask for the prosecution’s assistance for good reason—the state had already made
an effort to locate the Starks, without any request from defendant. Testimony at trial indicated
that the police checked various addresses, telephone numbers, and databases to locate the
brothers, but these efforts were ultimately unsuccessful. Moreover, defendant provides no
evidence to show that the Starks’ whereabouts could have been discovered through the exercise
of greater diligence—indeed, their location remains unknown.

         In light of the state’s efforts to locate the Starks, it was probably unnecessary for
defendant’s attorney to request a missing person instruction under CJI2d 5.12, because, as noted,
such an instruction may only be warranted when “a prosecutor falls short of providing such
assistance.” Perez, 469 Mich at 420. Again, the prosecution did provide reasonable assistance
in attempting to locate the Starks, so it would have been unlikely that the trial court would have
granted the trial attorney’s request for a missing person instruction under CJI2d 5.12. But the
trial attorney’s decision to ask for this instruction might have been from a surfeit of caution and,
in any event, it in no way prejudiced defendant. Accordingly, defendant’s claim that his attorney
rendered ineffective assistance have no merit.



3
  Because the Starks’ absence from trial did nothing to hinder defendant’s case, defendant cannot
claim that his trial attorney was ineffective for not asking the prosecutor to locate and produce
the Starks for trial. In any event, defendant’s lawyer may have declined to request assistance in
locating the Starks as a matter of trial strategy—his argument was that the police investigation of
the victim’s shooting was inadequate. Counsel might have decided to capitalize on the Starks’
absence, which would have reinforced the idea that the prosecution’s case rested on an
untrustworthy police investigation. People v Carbin, 463 Mich 590, 600; 623 NW2d 884
(2001); and Kelly, 186 Mich App at 527.


                                                -3-
Affirmed.

                  /s/ Christopher M. Murray
                  /s/ Henry William Saad
                  /s/ Joel P. Hoekstra




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