                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 5, 2018
               Plaintiff-Appellee,

v                                                                   No. 335068
                                                                    Wayne Circuit Court
DEMETRI DOWDELL,                                                    LC No. 15-006696-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

JANSEN, P.J. (concurring in part and dissenting in part)

        While I agree with the majority that defendant received due process of law, I disagree
that a remand for a hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 992 (1973),
is necessary. In that regard, I dissent.

       Defendant argues that he received ineffective assistance of counsel at trial where defense
counsel failed to call a res gestae witness at trial. I disagree, and note that defendant failed to
preserve these claims for appellate review by moving for a new trial, or requesting a hearing
pursuant to Ginther in the trial court. People v Solloway, 316 Mich App 174, 188; 891 NW2d
255 (2016). Accordingly, no factual record has been created on which this Court may evaluate
defendant’s claim. Id.1

       Generally, “[w]hether a defendant has been denied the effective assistance of counsel is a
mixed question of fact and constitutional law.” Solloway, 316 Mich App at 187 (citation
omitted). A trial court’s findings of fact, if any, are reviewed for clear error, and questions of
law are reviewed de novo. Id. at 188. However, where no factual record has been created in
regard to a defendant’s claim of ineffective assistance of counsel, as is the case here, “this
Court’s review is limited to mistakes apparent on the lower court record.” Id.




1
 I note that this Court previously denied defendant’s motion for remand for a Ginther hearing.
See People v Dowdell, unpublished order of the Court of Appeals, entered July 10, 2017 (Docket
No. 335068).


                                                -1-
        Effective assistance of counsel is presumed, and criminal defendants have a heavy burden
of proving otherwise. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).
When claiming ineffective assistance of counsel, it is the defendant’s burden to prove “(1)
counsel’s performance was deficient, meaning it fell below an objective standard of
reasonableness, and (2) the deficient representation prejudiced the defendant, meaning but for
counsel’s error, there is a reasonable probability that the outcome of defendant’s trial could have
been different.” Solloway, 316 Mich App at 188, citing Strickland v Washington, 466 US 668,
687; 104 S Ct 2025; 80 L Ed 2d 674 (1984). A defendant must show that “but for counsel’s
deficient performance, a different result would have been reasonably probable.” People v
Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011), citing Strickland, 466 US at 694-696.
“[D]efendant has the burden of establishing the factual predicate for his claim[.]” People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        Defendant argues that defense counsel’s failure to call res gestae witnesses fell below an
objective standard of reasonableness. “Decisions regarding what evidence to present, whether to
call witnesses, and how to question witnesses are presumed to be matters of trial strategy[,]” and
this Court does not second-guess matters of trial strategy. People v Horn, 279 Mich App 31, 39;
755 NW2d 212 (2008) (citation omitted). Further, failing to call a witness only constitutes
ineffective assistance of counsel when it deprives the defendant of a substantial defense. People
v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). “A substantial defense is one that
might have made a difference in the outcome of the trial.” People v Jackson (On
Reconsideration), 313 Mich App 409, 432; 884 NW2d 297 (2015) (quotation marks and citation
omitted). Additionally, simply because a trial strategy was unsuccessful does not mean it
amounts to ineffective assistance of counsel. People v Petri, 279 Mich App 407, 412-413; 760
NW2d 882 (2008).

        I believe my review of the record confirms that defense counsel adequately advocated for
his client. Although perhaps not to defendant’s personal satisfaction, defense counsel did, in
fact, thoroughly cross-examine all of the prosecution’s witnesses, and made every attempt to
establish reasonable doubt regarding defendant’s guilt. Defendant claims that Jason Algazzaly
would have testified at trial that defendant did not brandish a gun, and that he had never seen
defendant carrying a gun, based primarily on a review of the surveillance video. However, not
only does defendant fail to support this claim with an affidavit from Algazzaly indicating what
his testimony would have been, Algazzaly was not actually present during the altercation
between defendant and the victim, and the surveillance video of the incident was unobtainable.
Therefore, regardless of whether the jury would have found Algazzaly’s testimony to be
credible, any testimony regarding whether defendant actually brandished a weapon would have
been inadmissible. Accordingly, in my view, defendant has failed to establish that he was
deprived of a substantial defense because of defense counsel’s representation, and on that basis I
would affirm.



                                                            /s/ Kathleen Jansen




                                                -2-
