                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      January 9, 2018
               Plaintiff-Appellee,

v                                                                     No. 333759
                                                                      Oakland Circuit Court
ALEXANDER KWABENA BURTON,                                             LC No. 2015-256745-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of unlawful imprisonment, MCL
750.349b, felonious assault, MCL 750.82, domestic violence third offense, MCL 750.81(4), and
assault by strangulation, MCL 750.84(1)(b). We affirm.

         This case arises from defendant’s imprisonment and beating of the victim. The victim
testified that defendant invited her to move back into his home in Hazel Park and on the day she
moved her belongings in, he tied her up in the basement and beat her. After defendant left the
house, the victim escaped to a nearby gas station, where the police were called.

                               I. LATE-DISCLOSED EVIDENCE

        At trial, an issue came up where police reports were discovered and given to defense
counsel after the victim had testified. Additionally, a recorded phone conversation between the
victim and the officer in charge, Detective Janeen Gielniak, was provided to defense counsel
after the victim testified. Because these items were discovered after the victim had testified on
the second day of trial, the victim was recalled to the stand on the fourth day of trial for
clarification or impeachment purposes.

        Defendant argues that he was denied due process because of the late disclosure of the
police reports and the recorded phone call. We disagree. We review this unpreserved
constitutional issue for plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 764-765; 597 NW2d 130 (1999). Thus, in order to prevail, defendant must prove that
“(1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected
a substantial right of the defendant.” People v Pipes, 475 Mich 267, 279; 715 NW2d 290 (2006).



                                                 -1-
        “A defendant has a due process right of access to certain information possessed by the
prosecution.” People v Fox (After Remand), 232 Mich App 541, 548-549; 591 NW2d 384
(1998), citing Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). In order to
establish such a due process violation, a defendant must prove the following three elements: “(1)
the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in
its totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014).
“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.” Id. at 150
(quotation marks and citations omitted).

        Assuming the evidence is considered as being suppressed, although it was given to
defendant and used at trial, defendant cannot show how he was prejudiced. In other words,
defendant has failed to show how, had the information been disclosed before trial started, the
outcome of the trial would have been any different. The trial court allowed the parties to recall
the victim as a witness after the police reports and recorded phone call were disclosed to the
defense, which allowed defendant to impeach the victim’s credibility with this information.
Thus, the record does not indicate that defendant was in any way hampered in his ability to
impeach the victim’s credibility. Defendant’s unsupported claim that the impeachment would
have “carried more weight” had he been able to do so earlier in trial is unpersuasive. There is
nothing to suggest that the effect of any impeachment would have been any different regardless
of when in the trial it occurred. Consequently, defendant has failed to prove that plain error
affected his substantial rights, and this due process claim necessarily fails.

                                   II. JURY INSTRUCTION

        Defendant argues that he is entitled to a new trial because the trial court should have
provided M Crim JI 4.5(2), which allows a jury to consider a witness’s prior sworn statement as
substantive evidence, instead of merely as impeachment evidence. However, defendant is not
entitled to appellate review of this issue because he has waived the issue. After the trial court
instructed the jury, it asked the parties if they were satisfied with the instructions, as given.
Defense counsel answered, “Yes, your Honor.” Accordingly, defense counsel’s expression of
satisfaction with the instructions has resulted in a waiver of this issue, which extinguishes any
error, People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000), and defendant may not now
seek appellate review on this issue, People v Vaughn, 491 Mich 642, 663; 821 NW2d 288
(2012).1

                      III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he is entitled to a new trial because his trial counsel was
ineffective. We disagree.



1
 However, whether defense counsel’s waiver constituted ineffective assistance of counsel will
be addressed in Part III of this opinion.


                                               -2-
       Defendants have the guaranteed right to the effective assistance of counsel. Strickland v
Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Aceval, 282
Mich App 379, 386; 764 NW2d 285 (2009). Effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise. People v LeBlanc, 465 Mich 575, 578;
640 NW2d 246 (2002). Generally, to establish an ineffective assistance of counsel claim, a
defendant must show that (1) counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable probability that,
but for counsel’s error, the result of the proceedings would have been different. People v
Davenport, 280 Mich App 464, 468; 760 NW2d 743 (2008). However, such performance must
be measured without the benefit of hindsight. People v LaVearn, 448 Mich 207, 216; 528 NW2d
721 (1995). The defendant must overcome a strong presumption that counsel’s actions were
based on reasonable trial strategy. People v Cline, 276 Mich App 634, 637; 741 NW2d 563
(2007). Counsel will be found ineffective based on strategic decisions only if the strategy
employed was not sound or reasonable. Id. But because no evidentiary hearing was held, our
review is limited to mistakes apparent on the record. People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007).

       Defendant lists numerous instances where he alleges his trial counsel was ineffective, but
none of these contentions has merit.

        Defendant first avers that his trial counsel was ineffective for failing to obtain the
victim’s medical records from the hospital. Defendant asserts that the records would have shown
the victim did not have injuries consistent with the blows she claimed defendant inflicted.
However, defendant does not explain what injuries would have been refuted by the medical
records. To the extent defendant states that the records would have shown the victim was not
choked by defendant, this area was fully explored by defense counsel through the testimony of
Detective Gielniak, who stated that she did not see any signs of injury on the victim’s neck after
the incident. Further, photos of the victim were admitted into evidence, which allowed the jury
to see firsthand what injuries were visible and, more importantly, how there was no photo
showing any injury to her neck. Thus, it is clear the jury was presented with information that the
victim did not sustain any significant/lasting injuries to her neck area. Accordingly, assuming
the medical records confirmed there was no injury to the victim’s neck, this information would
merely have been duplicative of what the jury had already been presented. As a result, we
cannot conclude that trial counsel’s failure to present this cumulative evidence qualifies as
performing below an objective level of reasonableness. Moreover, it is important to note that
there is nothing in the record to show what the medical records actually state. Accordingly,
defendant cannot prove that if the records had been admitted they would have aided his defense.
Consequently, defendant cannot show how, if the records were admitted into evidence, the
outcome of the case would have been any different. This fact is fatal to defendant’s claim for
relief on this issue.2



2
  We further note that the assault by strangulation statute does not require an injury, let alone a
lasting type of injury. See MCL 750.84(1)(b). Thus, the fact that the victim did not sustain any
visible, lasting injuries is not dispositive.


                                                -3-
         Second, defendant claims that his trial counsel was ineffective for failing to ask the
victim specifically whether defendant told her she could not stay at his house. Counsel’s
performance did not fall below an objective level of reasonableness because the victim already
testified that defendant wanted her to “come back” to his home. Indeed, the victim stated a
second time that defendant wanted her to “come home,” meaning to return to his house in Hazel
Park. Thus, there is nothing in the record to show how this area of questioning needed to be
expanded upon. Moreover, assuming counsel did ask the question, as defendant suggests, there
is nothing in the record to indicate that the victim would not have answered similarly to her
previous answers. Accordingly, defendant cannot show how he was prejudiced by counsel’s
failure to ask the victim whether defendant told her she could not stay at his house, and his claim
of ineffective assistance fails.

        Third, defendant argues that his trial counsel was ineffective for failing to ask Detective
Gielniak about the circumstances surrounding her giving some of defendant’s jail property3 to
the victim. Defendant fails to explain the significance of this questioning and how such
questioning would have had a reasonable probability of altering the outcome of the trial.
Accordingly, defendant has abandoned this issue. See People v Payne, 285 Mich App 181, 188;
774 NW2d 714 (2009). Nevertheless, defendant’s claim fails on the merits as well. Contrary to
defendant’s suggestion, defense counsel did question Detective Gielniak thoroughly on why she
gave the house keys to the victim after the incident. Detective Gielniak explained that because
the victim had moved her belongings into defendant’s house, albeit just earlier that day, that
house seemed to be her residence, which made it appropriate to give her the keys to the house.
Moreover, because the circumstances of the police giving any property to the victim happened
hours after the crimes were committed, defendant cannot show how the failure to inquire more
deeply into this area on cross-examination would have affected the outcome of the trial. In other
words, this information had little to no relevance on whether defendant committed the charged
acts.

        Fourth, defendant argues that his trial counsel was ineffective for failing to call his
neighbor, Todd Stansbury, to testify at trial. While defendant acknowledges that “[t]here were
many references” to what Stansbury saw in the days after defendant was arrested, he nonetheless
asserts that “it may have aided the jury” to hear from him “directly.” Defendant does not explain
how Stansbury’s testimony would have been any different from what the jury was exposed to
previously. Moreover, any prejudice defendant suffered is purely speculative and not supported
by the record, as evidenced by defendant’s acknowledgement that having Stansbury testify
“may” have aided the jury. A defendant must do more than offer mere speculation to prove
prejudice. See Davenport, 280 Mich App at 468 (stating that a defendant must prove that there
is a reasonable probability that the outcome of the trial would have been different).




3
  In his brief on appeal, defendant avers that the police gave the victim his house keys and “one
of his phones.” But there was no evidence that the police gave the victim one of his phones.
Instead, the only phone mentioned that the victim received was her own phone that the victim
took from her at the beginning of her ordeal.


                                                -4-
        Fifth, defendant cursorily asserts that his trial counsel should have questioned a friend of
his, Makiya Nixon, “more closely” related to the time they were together on October 27, 2015.
Defendant fails to expand on this argument in any manner. At trial, Nixon testified that she was
with defendant in the afternoon of October 27. Defendant picked her up from her work and took
her to a doctor’s appointment and then to her house. Nixon testified that she was with defendant
approximately from 2:00 p.m. until 5:00 p.m. that day. But the imprisonment and assault
occurred after 12:00 noon that day. Defendant leaves it to this Court to determine what other
questions counsel should have asked Nixon and leaves it to this Court to determine how the
absence of these questions affected the outcome of the trial. Accordingly, the issue is abandoned
for the failure to adequately brief the issue. See Payne, 285 Mich App at 188; People v Kelly,
231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not merely announce
his position and leave it to this Court to discover and rationalize the basis for his claims . . . .”).

        Sixth, defendant claims that his trial counsel should have demonstrated that the baton that
was admitted into evidence was “broken.” Defendant, once again, fails to expand on this
argument beyond his cursory statement. Accordingly, the issue is abandoned. See Payne, 285
Mich App at 188; Kelly, 231 Mich App at 640-641. We also note that the baton was introduced
into evidence, so the jury was fully aware of the true state of the baton. In any event, assuming
the baton was broken at the time of trial, this fact does nothing to prove that defendant did not
use it on October 27, 2015, or that the victim was lying about defendant using it on her. Indeed,
if the baton were broken at the time of trial, the prosecution simply could have argued that
defendant broke the baton when he used it to beat the victim. Therefore, assuming the baton was
broken, defendant cannot show how the presentment of this fact to the jury would have had a
reasonable probability to alter the outcome of the trial, and this claim fails.

        Seventh, defendant argues that trial counsel’s performance was “somewhat hampered” by
the government’s late disclosure of the four police reports and the one recorded phone call.
While the information was disclosed after trial had started, defendant fails to acknowledge that
he was afforded a full opportunity to cross-examine the victim regarding these reports and phone
call. Because defendant was able to cross-examine the victim and impeach her prior testimony
with these materials, he has failed to show how this late disclosure affected his strategy or, more
importantly, how it affected the jury’s verdict. In other words, defendant offers no argument that
the jury’s deliberation would have been affected had the materials been provided to defense
counsel in advance of trial. The jury arguably would have been presented with this same
impeachment evidence on the second day of trial instead of the fourth day. There is no reason to
think that the cross-examination and impeachment carried less weight because it was done at a
later time. Indeed, because the victim was expressly recalled to testify, as defense counsel
claimed at the time, “to fix [a] lie,” the jury likely was more aware of any discrepancies with her
prior testimony. 4 Consequently, defendant cannot prevail on this claim of ineffective assistance.5




4
 Further, during closing argument, defense counsel stressed that the victim “was brought back in
part because she lied the first time she testified to you.”


                                                 -5-
        Eighth, defendant contends that he was denied the effective assistance of counsel because
he was not able to obtain the surveillance video from the gas station, where the victim initially
ran after she escaped from defendant’s basement. Detective Gielniak explained that the police
tried to retrieve the video from the gas station but by the time they were able to speak to a
manger who had the ability to access the video, the video was lost because the gas station had
implemented a new video system. Defendant does not claim that counsel could have or should
have done anything differently. Moreover, defendant fails to explain how the video would have
assisted his defense. Accordingly, defendant cannot prove that his trial counsel was ineffective.6

        Finally, defendant claims that his trial counsel was ineffective when he failed to request
the full jury instruction for M Crim JI 4.5. This jury instruction deals with how a jury may
consider a prior statement of a witness. The trial court instructed the jury consistent with M
Crim JI 4.5(1), which allows the jury to consider a witness’s prior statement as impeachment
evidence of the witness’s testimony at trial. But defendant argues on appeal that his trial counsel
should have requested M Crim JI 4.5(2) as well. The thrust of M Crim JI 4.5(2) is to allow
jurors to consider a prior statement made under oath as substantive evidence.

        To determine if it was erroneous for trial counsel not to request the instruction, we first
look at the prior testimony to see if the instruction truly is applicable. Defendant in his brief on
appeal cites to instances where the victim was impeached with her preliminary examination
testimony, which does qualify as a prior sworn statement and as such would be able to be viewed
as substantive evidence. However, a review of the preliminary examination testimony shows
that it was reasonable for defense counsel to have only wanted the prior testimony to be used as
impeachment evidence and not as substantive evidence.

         Defendant first relies on the instance where the victim testified about how much time
passed from when defendant started looking at her phone to when he punched her in the eye. At
trial, the victim stated that it happened very quickly after defendant started looking at her
phone—“about five seconds” afterward. However, defense counsel showed the victim her
preliminary examination testimony, where she stated that she was first struck “20 to 30 minutes”
after defendant began to look through her phone. It is clear that no reasonable defense attorney
would have wanted the preliminary examination testimony to be used as substantive evidence
because to do so would mean that counsel intended to introduce the victim’s prior testimony to
prove that defendant actually struck the victim 20 to 30 minutes after tying her up and looking
through her phone, which does nothing to absolve defendant.



5
  To the extent that defendant’s claim could be interpreted as a due process challenge because of
the loss of evidence attributable to the government, a defendant must prove that the government
acted in bad faith. Arizona v Youngblood, 488 US 51, 57-58; 109 S Ct 333; 102 L Ed 2d 281
(1988). Here, there is no sign that the government acted with bad faith, and defendant does not
claim that the government acted with bad faith.
6
  Again, there is no evidence that the police acted with bad faith. Thus, any due process
challenge fails as well.


                                                -6-
        Defendant also cites to another instance of his trial counsel confronting the victim with
her preliminary examination testimony. This other instance involved the victim’s recollection of
what types of materials defendant used to tie her hands together. At trial, the victim explained
that after defendant cut off the zip-tie cuffs, he used Audio/Video (A/V) cords and tape to secure
her hands together. But at the preliminary examination, the victim testified that “tape and rope”
were used. Again, no reasonable defense counsel would have wanted the preliminary
examination testimony to be used as substantive evidence because to do so would mean that
counsel intended to introduce the victim’s prior testimony to prove that defendant actually tied
the victim up with tape and rope (instead of tape and A/V cords), which does not assist defendant
in defending against the charges.

        Therefore, because of the content of the cited preliminary examination testimony, it is
beyond dispute that defense counsel only wanted to use the prior testimony to show that the
victim was lying (at trial and at the preliminary examination) and that defendant did not commit
the alleged acts. It is incongruous for defendant to implicitly suggest on appeal that if the
evidence was considered substantively it could somehow have aided his defense. Accordingly,
defense counsel’s decision to not request M Crim JI 4.5(2), or its equivalent, was inherently
reasonable and defendant cannot sustain a claim of ineffective assistance for this conduct.

       Affirmed.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Kirsten Frank Kelly




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