                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 21, 2017
               Plaintiff-Appellee,

v                                                                  No. 333473
                                                                   Oakland Circuit Court
EMMET MICHAEL BRIM,                                                LC No. 2015-256540-FH

               Defendant-Appellant.


Before: METER, P.J., and BORRELLO and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals as of right his jury-trial conviction of third-degree fleeing and eluding
a police officer, MCL 257.602a(3). The trial court sentenced defendant, as a fourth-offense
habitual offender, MCL 769.12, to 3 to 20 years’ imprisonment. We affirm.

                             I. PROSECUTORIAL MISCONDUCT

       Defendant contends that the prosecutor committed misconduct when she elicited
testimony that exposed defendant’s status as a probationer to the jury. We disagree.

        “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
“[A]llegations of prosecutorial misconduct are considered on a case-by-case basis, and the
reviewing court must consider the prosecutor’s remarks in context.” People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). “Curative instructions are sufficient to cure the
prejudicial effect of most inappropriate prosecutorial statements.” People v Seals, 285 Mich App
1, 22; 776 NW2d 314 (2009).

       “Unresponsive answers from witnesses are generally not prosecutorial error.” People v
Jackson, 313 Mich App 409, 427; 884 NW2d 297 (2015); see also People v Waclawski, 286
Mich App 634, 710; 780 NW2d 321 (2009) (discussing an unresponsive answer to a proper
question).

       Defendant takes issue with the testimony of defendant’s girlfriend, Angela Johnson, who
mentioned “[defendant’s] probation officer.” The prosecutor had presented evidence that
defendant fled the police after being observed trying to break into Johnson’s home, but Johnson
denied at trial that any attempted break-in had happened and stated that her home had been

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“peaceful” that night. Johnson also testified that defendant had been driving a van that day,
although the fleeing had purportedly occurred in a car.

        The prosecutor carefully articulated the question regarding whether Johnson knew
Angela Brooks (the probation officer)—never purposefully eliciting what Brooks’s occupation
was. Specifically, the prosecutor only asked if Johnson “recogniz[ed] the name Angela Brooks,”
and when Johnson denied knowing that name, the prosecutor attempted to reframe the question
so as to stir Johnson’s memory by asking, “Did you . . . accompany [defendant] to meet with a
woman named Angela Brooks?” Johnson then unresponsively stated, “Oh, his probation officer.
Is that what you’re speaking -- referring to?” The prosecutor then simply asked again, “do you
recognize the name Angela Brooks?” The prosecutor proceeded to inquire of the witness
whether she had told Angela Brooks that “the police blew all of this out of proportion[.]”

        The prosecutor’s question that followed the challenged statement demonstrates the
prosecutor’s purpose for asking the question. The prosecution was attempting to obtain more
details regarding what Johnson knew about the incident and attempting to call Johnson’s
credibility into question.

         A “prosecutor’s good-faith effort to admit evidence does not constitute misconduct.”
People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). After Johnson blurted out
that Brooks was defendant’s probation officer, the prosecutor appeared to stumble over her
words, showing that she was surprised by, and had not intended, that answer. The prosecutor
followed up after the unresponsive answer, “Do you -- do you refer to -- do you recognize the
name Angela Brooks?” It is evident that the prosecutor’s question had a valid purpose other than
to elicit defendant’s criminal history, and did not result in prosecutorial misconduct. See id.
Additionally, the inference that defendant had a criminal record could only come from this one
occurrence, because the prosecutor did not discuss defendant’s prior criminality at any time,
including during closing argument. See People v Wallen, 47 Mich App 612, 613; 209 NW2d
608 (1973) (stating that “[a]n isolated or inadvertent reference to a defendant’s prior criminal
activities will not result in reversible prejudice”). In addition, notwithstanding the fact that the
question was proper, a timely objection and request for a curative instruction could have cured
any perceived prejudice, and defendant made no such request for a curative instruction.1 See
Bennett, 290 Mich App at 476. We find no basis for reversal.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that his trial attorney was ineffective for failing to call an expert
witness who could discuss the fallibility of eyewitness testimony. We disagree.

       Defendant did not move in the trial court for a new trial or a Ginther2 hearing. However,
defendant filed a motion in this Court to remand for a Ginther hearing. This Court denied

1
  Defense counsel merely asked that the prosecutor be “limited” in the questions she could ask of
the witness.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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defendant’s motion because he failed to demonstrate that further factual development of the
record or an initial ruling by the trial court was necessary for this Court to review the issues on
appeal.3

         “A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court reviews a trial
court’s findings of fact, if any, for clear error, and reviews de novo the ultimate constitutional
issue arising from an ineffective assistance of counsel claim.” Id. A finding is clearly erroneous
if “the reviewing court is left with a definite and firm conviction that a mistake has been made.”
People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014) (quotation marks and citation
omitted). Because of defendant’s failure to move for a new trial or hearing in the trial court and
because of our denial of the motion to remand, we review the present issue for errors apparent on
the existing record. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008); People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

        “To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1)
that his attorney’s performance was objectively unreasonable in light of prevailing professional
norms; and (2) that he was prejudiced by the deficient performance.” People v Walker, 497
Mich 894, 895; 855 NW2d 744 (2014). “Effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App 326, 329;
820 NW2d 229 (2012) (quotation marks and citation omitted).

        Defense counsel’s performance was objectively reasonable, in that he aggressively
challenged the identification of defendant during cross-examination. In People v Cooper, 236
Mich App 643, 658; 601 NW2d 409 (1999), the defendant’s attorney “elicited apparent
discrepancies and arguable bases for regarding [the] identification of defendant . . . to be
suspect.” The Cooper Court determined that trial counsel’s decision to challenge the
identification through cross-examination, and not to use an expert witness to discuss the
challenge, was not a basis for a successful claim of ineffective assistance of counsel. Id.

        Here, defense counsel challenged the identification of defendant in several respects. Just
as in Cooper, defense counsel’s decision to thoroughly cross-examine the witnesses to attack the
identification of defendant, instead of presenting expert testimony in this regard, did not fall
below an objectively reasonable standard.

       There is a strong presumption that defense counsel employed effective trial strategy, and
we “will not substitute our judgement for that of counsel on matters of trial strategy, nor will we
use the benefit of hindsight when assessing counsel’s competence.” People v Payne, 285 Mich
App 181, 190; 774 NW2d 714 (2009) (quotation marks and citation omitted). “Decisions
regarding whether to call or question witnesses are presumed to be matters of trial strategy.”
People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Defendant has not overcome
the presumption of sound trial strategy. See Cooper, 236 Mich App at 658 (stating that, as a


3
 See People v Brim, unpublished order of the Court of Appeals, entered January 4, 2017 (Docket
No. 333473).


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matter of strategy, “[t]rial counsel may reasonably have been concerned that the jury would react
negatively to perhaps lengthy expert testimony that it may have regarded as only stating the
obvious: memories and perceptions are sometimes inaccurate”).

        Notwithstanding defense counsel’s objectively reasonably performance, defendant is
unable to demonstrate that he was prejudiced by not having an expert testify. “[T]he failure to
call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense.” Russell, 297 Mich App at 716 (quotation marks and citation omitted). “A
substantial defense is one that might have made a difference in the outcome of the trial.”
Jackson, 313 Mich App at 432 (quotation marks and citations omitted). Defendant has not put
forth any offer of proof that an expert witness would have testified in any specific manner, nor
that the jury would have found the testimony helpful for defendant. The prosecutor presented
unequivocal identification testimony4 and defendant has not indicated how an expert would have
effectively countered this.

       Affirmed.



                                                            /s/ Patrick M. Meter
                                                            /s/ Stephen L. Borrello
                                                            /s/ Michael J. Riordan




4
  We note, also, that a search of the registration for the car in which defendant had been fleeing
revealed that the car was associated, by way of the registration address, with defendant.


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