                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 22, 2017
               Plaintiff-Appellee,

v                                                                    No. 333207
                                                                     Muskegon Circuit Court
FRED HUSTON-DARNELL CHANDLER,                                        LC No. 15-066436-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his conviction for third-degree fleeing an officer in
violation of MCL 257.602a(3). The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to 18 months to 10 years’ imprisonment. Defendant received 10 days of
jail credit for his conviction. We affirm.

        This case arose from defendant’s flight from a police officer after he was directed to stop.
On May 6, 2015, an officer of the Muskegon Police Department was dispatched to a Dollar
General store to investigate a retail fraud in progress by an African-American male, who was
wearing a blue shirt and black jeans and who was seen exiting the rear door of the business with
merchandise in black plastic bags. The officer drove to the alley behind the store and pulled his
police cruiser directly in front of a black Cadillac. He observed a person fitting the suspect’s
description walk to the driver’s side of the Cadillac and enter the car. The officer exited his
vehicle, approached the man, and asked him if he just left the store. The man denied leaving the
store, but the officer noticed plastic bags containing something in the Cadillac’s backseat, so he
asked the man to step out of his car. The suspect refused and started backing up his car. The
officer ordered him to stop, but the man took off at a high speed down residential streets. The
officer pursued the suspect until he was ordered to terminate the pursuit.

        About two weeks later, a detective received a tip from a confidential informant that
defendant was the person who fled in the Cadillac. The detective sent the officer a photograph of
defendant, and the officer immediately recognized him as the suspect. Defendant was arrested
and later released on bond. Shortly thereafter, defendant was arrested and jailed pending trial for




                                                -1-
committing an unarmed robbery at a K-Mart. He remained in jail while he awaited trials for
each offense. 1

         On appeal, defendant raises several claims of error that he believes entitle him to a new
trial. First, he claims that he was provided ineffective assistance in this case because his defense
counsel failed to do the following: (1) adequately prepare an alibi witness and subpoena and call
a different alibi witness; (2) raise a Batson2 challenge when the only African-American juror was
excused near the end of the trial; (3) request information about the confidential informant before
trial; and (4) seek revocation of his bond in this case so he could have additional credit for days
of incarceration after counsel was reappointed. We find no merit to these claims.

         Ineffective Assistance of Counsel. To preserve a claim of ineffective assistance of
counsel, defendant must move in the trial court for a new trial or a Ginther hearing.3 People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Here, defendant did not move in the trial
court for a new trial or a Ginther hearing. Defendant did, however, file a motion to remand to
permit him to move in the trial court for a new trial or a Ginther hearing. We denied 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.
Consequently, no testimonial record was made in the trial court pursuant to a motion for new
trial or Ginther hearing. Therefore, our review is limited to mistakes apparent on the record.
People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009).

        Defendant bears the burden of establishing that defense counsel provided ineffective
assistance by showing that “(1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (internal citation
and quotation marks omitted). Defendant must overcome a strong presumption that defense
counsel provided effective assistance. Seals, 285 Mich App at 17. “Decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). “This Court does not
second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with
the benefit of hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

        Defendant’s claims of ineffective assistance of counsel involve constitutional and
statutory questions. We review both de novo. People v Stewart, 472 Mich 624, 631; 698 NW2d
340 (2005); Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).




1
    The present appeal involves only the circumstances following the theft at the Dollar General.
2
    Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -2-
        Alibi Witnesses. Defendant argues that defense counsel was ineffective because counsel
called only one of his alibi witnesses whom defendant contends was unprepared to testify
confidently that, on the date of the incident, defendant was in Flint, Michigan, for the weekend at
a friend’s home. The alibi witness whom defense counsel called testified that she and defendant
lived together and that defendant was the father of her child. She testified that she traveled with
defendant to Flint on the date of the incident. During cross-examination, however, she admitted
that she could not be sure of the exact date of their travel to Flint. Defendant claims that defense
counsel did not prepare the witness and should have subpoenaed one of his other alibi witnesses,
the friend in Flint, to shore up the alibi defense.

         Addressing first defendant’s girlfriend’s testimony, defendant appears to take issue with
his girlfriend’s inability to state definitively that defendant was in Flint on the night in question,
and suggests that defense counsel should have prepared her to offer more definitive testimony.
Assuming that the girlfriend’s testimony was truthful, defendant’s suggestion that his counsel
should have “prepared” her to testify otherwise amounts to coaching at best, and presenting a
witness to commit perjury at worst. Counsel is under an ethical obligation neither to coach
witnesses nor instruct them to commit perjury, and a claim of ineffective assistance cannot be
premised on counsel’s refusal to do so. People v LaVearn, 448 Mich. 207, 216-218; 528 NW2d
721 (1995); see also MRPC 3.3; MRPC 3.4.

        Regarding the other purported alibi witness, there is nothing in the trial court record that
suggests the purported witness could have actually provided defendant with an alibi. The record
contains no evidence concerning his proposed testimony, and no evidentiary hearing was held on
the matter. Thus, what the witness’s testimony actually would have been if called to testify at
trial was not presented to the trial court. Defendant “has the burden of establishing the factual
predicate for his claim of ineffective assistance of counsel,” People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999), which he has not done. Consequently, no mistake is apparent on the record
respecting defense counsel’s failure to call that alibi witness. Seals, 285 Mich App at 20-21. On
appeal, defendant has failed to present any substantive evidence or even an argument that
overcomes the presumption that not subpoenaing or calling that witness to testify was a matter of
defense counsel’s trial strategy. Avant, 235 Mich App at 508. Further, we believe defendant’s
claim of error on this basis lacks merit because defense counsel developed and presented through
one of his alibi witnesses the defense that defendant was in Flint when the incident occurred. “A
particular strategy does not constitute ineffective assistance of counsel simply because it does not
work.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004).

       Therefore, defendant has failed to establish that defense counsel’s performance fell below
an objective standard of reasonableness. Defendant also has failed to prove that, but for his
counsel’s performance, there is a reasonable probability that the outcome of his trial would have
been different. Trakhtenberg, 493 Mich at 51. Accordingly, defendant’s ineffective assistance
of counsel claim based on alibi witnesses lacks merit.

        No Batson Challenge. Defendant next argues that his defense                counsel provided
ineffective assistance because he did not raise a Batson challenge when           the only African-
American juror was excused late in the trial. Under Batson, a prosecutor          is prohibited from
using peremptory challenges to strike a juror from a defendant’s jury on           the basis of race.
Batson v Kentucky, 476 US 79, 89; 106 S Ct 1712; 90 L Ed 2d 69 (1986).             The United States

                                                 -3-
Supreme Court has prescribed a three-step process for determining whether impropriety existed
in the use of peremptory challenges. First, the opponent of the challenge must establish a prima
facie showing of racial discrimination. Id. at 94-97. Second, if a prima facie showing is made,
the burden shifts to the challenging party to establish a race neutral explanation for the challenge.
Id. at 97. Finally, the trial court must decide if the opponent of the challenge proved purposeful
discrimination. Id. at 100.

        To establish a prima facie case, defendant must show that: “(1) [defendant] is a member
of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a
member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise
an inference that the proponent of the challenge excluded the prospective juror on the basis of
race.” People v Knight, 473 Mich 324, 336; 701 NW2d 715 (2005). “That the prosecutor did
not try to remove all blacks from the jury is strong evidence against a showing of
discrimination.” People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004) (internal
citation and quotation notation omitted).

        During voir dire, the prosecution did not use a peremptory challenge to strike the
African-American juror. The juror was actually selected and served until late in the proceedings
when the prosecution discovered that the juror had significant contacts with the prosecutor’s
office in relation to another case. When the issue arose, defense counsel suggested that the
remedy would be to dismiss the juror from the jury. The trial court and counsel discussed the
matter and agreed that the prosecutor should confirm the contact with the prosecutor’s office,
and if confirmed, the juror would be excused. Once the prosecutor confirmed the contact, the
juror was excused discreetly before the jury was sent to deliberate. Implicit in the decision to
excuse the juror was consideration for fairness and impartiality in the trial court proceedings. By
excluding him for his contacts with the prosecution, the trial court removed a potentially biased
juror.

      The trial court did not engage in a Batson analysis, nor was it required to do so because
what occurred in the proceedings was not a situation where Batson applied. The Michigan
Supreme Court observed in Knight, 473 Mich at 349:

       [p]rotecting a defendant’s right to a fair and impartial jury does not entail
       ensuring any particular racial composition of the jury. The goal of Batson and its
       progeny is to promote racial neutrality in the selection of a jury and to avoid the
       systematic and intentional exclusion of any racial group.

        The mere fact that an African-American was excused from the jury under the
circumstances here provided defendant no basis for raising a Batson challenge. Nothing in the
trial court record even remotely suggested that the juror was excused because of his race. Even
defendant makes no claim on appeal that the prosecution brought the matter to the trial court’s
attention for a discriminatory purpose or otherwise engaged in gamesmanship by waiting until
the jury was selected before bringing the disqualifying matter to the attention of the trial court.

        We have often held that defense counsel is “not required to make a meritless motion or a
futile objection.” People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003). In this
case, review of the trial court record establishes that a Batson challenge would have been

                                                 -4-
meritless and defendant’s claim of ineffective assistance of counsel for defense counsel’s failure
to raise a Batson challenge fails.

        Confidential Informant. Defendant next contends that he was provided ineffective
assistance because defense counsel failed to request information about the confidential informant
before trial. Defendant links this issue to another issue, which we will discuss later. Let it
suffice that we find defendant’s claim of ineffective assistance of counsel on this basis meritless
because, as we explain below, defendant was not deprived of any right involving the non-
testifying confidential informant. Moreover, defendant fails to explain what exactly he believes
he would have undertaken or accomplished had his counsel obtained information regarding the
confidential informant. Defendant offers nothing to overcome the strong presumption that
defense counsel’s conduct was sound trial strategy, has failed to establish that defense counsel’s
performance fell below an objective standard of reasonableness, and cannot show prejudice
stemming from any purported error.

        Credit for Time Served. Defendant’s last claim that he was provided ineffective
assistance likewise fails. Early in this case, with the assistance of his appointed attorney,
defendant was released on bond. Nonetheless, while out on bond, defendant allegedly
committed another larceny and was jailed on that charge. While in jail pending trial on that other
case, defendant opted to represent himself temporarily in this case. He personally raised an issue
about his bond before the trial court but did not pursue it. Later, he sought and obtained
appointed counsel. At his sentencing, defendant received 10 days sentencing credit for time that
he was in jail related to the offense in this case. He now contends that when reappointed by the
trial court, defense counsel should have moved for bond revocation because he believes he was
entitled to credit for the time he was in jail for the other offense from December 15, 2015, the
date he was reappointed counsel, to April 18, 2016, the date he was sentenced in this case.4

       Michigan’s sentence credit statute, MCL 769.11b, provides:

       Whenever any person is hereafter convicted of any crime within this state and has
       served any time in jail prior to sentencing because of being denied or unable to
       furnish bond for the offense of which he is convicted, the trial court in imposing
       sentence shall specifically grant credit against the sentence for such time served in
       jail prior to sentencing.

       In People v Prieskorn, 424 Mich 327; 381 NW2d 646 (1985), our Supreme Court
considered whether the defendant was “entitled to sentence credit . . . for time spent incarcerated
under sentence for an unrelated offense committed while he was free on bond for the offense for
which he” sought sentence credit. Id. at 330. Based upon the legislative intent for application of
MCL 769.11b, the Supreme Court held:



4
  At his sentencing hearing, defense counsel argued that he was entitled to credit for all of the
time he was incarcerated while awaiting trial on the other offense up to the date of his sentencing
in this case.


                                                -5-
       We believe the sentence credit statute neither requires nor permits sentence credit
       in cases, such as the one before us, where a defendant is released on bond
       following entry of charges arising from one offense and, pending disposition of
       those charges, is subsequently incarcerated as a result of charges arising out of an
       unrelated offense or circumstance and then seeks credit in the former case for that
       latter period of confinement. [Id. at 340.]

Several years later, our Supreme Court reiterated its earlier holding: When “the defendant has
served time not as a result of his inability to post bond for the offense for which he seeks credit,
but because of his incarceration for another offense, [MCL 769.11b] is simply not applicable.”
People v Adkins, 433 Mich 732, 750; 449 NW2d 400 (1989).

        In this case, defendant essentially argues that bond revocation would have retroactively
converted the time he spent in jail for the other offense into time served in this case. Defendant,
however, cites no authority for this proposition. Under Prieskorn and Adkins, defendant was
clearly not entitled to jail credit under MCL 769.11b. For defendant to receive credit in
accordance with the statutory provision, he had to establish that his confinement was the result of
an inability to post bond on the charged offense, not based on another reason. People v Wagner,
193 Mich App 679, 682; 485 NW2d 133 (1992); see also Prieskorn, 424 Mich at 344 (“To be
entitled to credit for presentence time served, a defendant must have been incarcerated for the
offense of which he is convicted.”). As our Court held in People v Scott,

       Because the primary purpose of the sentencing credit statute is to equalize the
       position of one who cannot post bond with that of a person who is financially able
       to do so, a showing that presentence confinement was the result of an inability to
       post bond is an essential prerequisite to the award of sentence credit under the
       statute. [216 Mich App 196, 199; 548 NW2d 678 (1996).]

Here, defendant was not confined a second time because of an inability to afford bond through
no fault of his own; rather, defendant was confined because he had been charged with having
committed a second crime during the period that he had been released on bond for the first crime.
There is nothing to suggest that the Legislature enacted MCL 769.11b as a consolation for repeat
offenders. Thus, because defendant’s time was served awaiting trial on the other offense,
defendant was not entitled to recalculation of the credit given for days served in jail for his other
offense even if his counsel had moved for revocation of his bond in this case. This is simply
another instance where defendant claims defense counsel was required to make a meritless
motion or a futile objection.

       For all of these reasons, we hold that defendant was provided effective assistance of
counsel. He is not entitled to relief because he was not deprived of his defense or prejudiced by
his counsel’s performance, and a reasonable probability does not exist that, but for defense
counsel’s conduct, the outcome would have been different.

       Other-Acts Evidence. Defendant next argues that the trial court erred by allowing the
prosecution to elicit testimony from witnesses of other acts under MRE 404(b) regarding
defendant’s apprehension and conviction for a 2011 incident involving retail fraud and flight


                                                -6-
from the police. Defendant contends that he was denied due process and did not receive a fair
trial because the testimony amounted to inadmissible propensity evidence. We disagree.

       Admission of other-acts evidence is controlled by MRE 404(b)(1):

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, scheme, plan, or system in doing an act, knowledge, identity, or
       absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

We review for an abuse of discretion a trial court’s decision regarding admissibility of evidence.
People v Taylor, 252 Mich App 519, 521; 652 NW2d 526 (2002); People v Crawford, 458 Mich
376, 383; 582 NW2d 785 (1998). An abuse of discretion occurs when the trial court chooses an
outcome that is outside the range of principled outcomes. People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010).

       In People v Sabin, 463 Mich 43, 55-56; 614 NW2d 888 (2000), the Michigan Supreme
Court held that a trial court does not abuse its discretion if its admission of other-acts evidence
meets the three-part test articulated in Huddleston v United States, 485 US 681, 691-692; 108 S
Ct 1496; 99 L Ed 2d 771 (1988), that was adopted in People v VanderVliet, 444 Mich 52, 74;
508 NW2d 114 (1993). Under that test:

       First, the prosecutor must offer the other acts evidence under something other
       than a character to conduct or propensity theory. MRE 404(b). Second, the
       evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
       an issue of fact of consequence at trial. Third, under MRE 403, a determination
       must be made whether the danger of undue prejudice substantially outweighs the
       probative value of the evidence in view of the availability of other means of proof
       and other facts appropriate for making decision of this kind under Rule 403.
       [Sabin, 463 Mich at 55-56 (selected internal citations and quotation notation
       omitted).]

Sabin clarified that MRE 404(b) is a rule of inclusion and not exclusion, but when MRE 404(b)
other-acts evidence is admitted, “the trial court upon request, may provide a limiting instruction
under MRE 105.” Id. at 56. Moreover, “evidence of a defendant’s similar misconduct is
logically relevant to show that the charged act occurred where the uncharged misconduct and the
charged offense are sufficiently similar to support an inference that they are manifestations of a
common plan, scheme, or system.” Id. at 63. There must be such a concurrence of common
features that the charged acts and the other acts are logically seen as part of a general plan,
scheme, or design. Id. at 63-65.

       In this case, the prosecution sought admission of the 2011 incident to establish
defendant’s identification, lack of mistake, motive, and scheme, plan, or system of fleeing and
eluding police during his commission of retail fraud. Thus, under the first prong of the

                                                -7-
Huddleston test, the prosecution offered the evidence for something other than defendant’s
character or propensity to commit the offense.

          The prosecution’s explanation also met the second prong of the Huddleston test because
the evidence of a prior incident of fleeing from police was relevant to issues of fact of
consequence to this case: identity and plan. Further, the other-acts evidence here had the
requisite similarity required by Sabin for admission because the two incidents had a concurrence
of common features so that the charged acts and the other acts were logically part of a general
scheme, plan, or system. One aspect of defendant’s scheme, plan, or system was to commit
retail fraud by robbing retail establishments by walking out of stores with goods and then taking
off in his car to evade capture by the police. While evading the police, defendant drove at an
exceedingly high rate of speed through residential areas. Defendant had done the same thing in
2011 when he robbed a Plumbs store and was only apprehended when he crashed his car.
Defendant’s conduct in this case was essentially the same. Defendant stole goods from the
Dollar General by walking out of the store and, when confronted, he took off through residential
streets at a high rate of speed. Because the charged and uncharged acts were similar, the trial
court did not abuse its discretion by admitting evidence of defendant’s other acts under MRE
404(b).

        Regarding the third prong of the Huddleston test, the trial court reviewed MRE 404(b)
and articulated its ruling in detail on the record. Because identity of the perpetrator was an issue
in the case, the trial court held that the evidence of scheme, plan, or system was relevant at
defendant’s trial and was not unduly prejudicial. The trial court correctly applied the Huddleston
test and the requisite similarity test specified in Sabin. The trial court, therefore, properly
overruled defense counsel’s objection to the admission of the other-acts evidence. Nevertheless,
to prevent the possibility that the jurors might use the evidence to conclude that defendant had a
propensity to commit the charged offense, the trial court gave them a limiting instruction, the
standard instruction regarding other acts evidence set forth in M Crim JI 4.11.

        As we have stated previously, jurors are presumed to have followed instructions “and
instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662
NW2d 836 (2003). Significantly, defendant does not argue that the jurors disobeyed the trial
court’s instruction. Instead, defendant asserts essentially that Sabin required that, because his
2011 incident was not exactly the same as the 2015 incident, the jurors were prohibited from
considering it as evidence of a scheme, plan, or system of doing an act or for identification
purposes. Sabin, however, did not transform MRE 404(b) into a rule of exclusion.

       Review of the trial court record establishes that the trial court correctly applied the
Huddleston test and its decision to admit other acts evidence under MRE 404(b) was not an
abuse of its discretion. Defendant was not denied due process with respect to the other-acts
evidence. Therefore, he is not entitled to a new trial.

        Officer’s Identification of Defendant. Defendant next claims that he is entitled to a new
trial because the trial court denied his pretrial motion in limine. In that motion, defendant sought
to exclude the responding police officer as a witness and suppress his identification of defendant
because the police officer identified defendant from a single photo he received from the


                                                -8-
detective. Defendant contends that the single photo was impermissibly suggestive and led to
misidentification. We disagree.

       We review for clear error the trial court’s determination in a suppression hearing
regarding the admission of identification evidence. People v McDade, 301 Mich App 343, 356;
836 NW2d 266 (2013). Clear error exists when this Court is left with a definite and firm
conviction that a mistake was made. Id. We review de novo issues of law relevant to a motion
to suppress. Id.

       A photographic identification procedure may violate a defendant’s right to due process if
it was so impermissibly suggestive that it gave rise to a substantial likelihood of
misidentification. People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993). When a
witness was shown only one person or the person was singled out in some way, the witness may
be tempted to conclude the person was the perpetrator of the crime. People v Anderson, 389
Mich 155, 178; 205 NW2d 461 (1973). Generally, if a witness identified a defendant through an
improper pretrial identification procedure, the prosecution must establish an independent basis
for any later in-court identification of the defendant by that witness. People v Kachar, 400 Mich
78, 92-97; 252 NW2d 807 (1977).

        Under People v Gray, 457 Mich 107, 116; 577 NW2d 92 (1998), the trial court must
consider the factors articulated in Kachar, 400 Mich at 95-96, when determining whether an
independent basis existed for the admission of an in-court identification. Those factors are: (1)
the witness’s prior knowledge of the defendant, (2) the witness’s opportunity to observe the
perpetrator during the crime (including the duration of the observation, the lighting, any noise or
other factors affecting sensory perception, and the proximity to the alleged criminal act), (3) the
length of time between the crime and the disputed identification, (4) discrepancies between the
pretrial identification description and the defendant’s actual appearance, (5) any prior proper
identification or failure to identify the defendant, (6) any prior identification of another as the
perpetrator, (7) the mental state of the witness at the time of the crime (considering factors such
as fatigue, nervous exhaustion, intoxication, and the age and intelligence of the witness), and (8)
any special features of the defendant. See Gray, 457 Mich at 116; Kachar, 400 Mich at 95-96.
The trial court must also consider the witness’s level of certainty at the prior identification.
Kurylczyk, 443 Mich at 306. The trial court’s inquiry must focus on the totality of the
circumstances. Id.

        We have considered the trial court record and conclude that the trial court correctly
considered the totality of the circumstances in relation to the factors articulated in Gray. The
officer testified at the suppression hearing that, although he had no prior knowledge of defendant
and never met him before the incident, he saw defendant’s face in profile when he arrived at the
scene, and he calmly observed defendant face-to-face in close proximity when he approached
him and ordered him to get out of his car. That interaction occurred during daylight and nothing
impeded his view of defendant’s face. When challenged, the officer testified that, based upon
his face-to-face interaction with defendant at the scene, he was absolutely certain that defendant
was the suspect who fled. We find no error in the trial court’s conclusion that multiple factors
supported its determination that the officer had an independent basis for identifying defendant.
Therefore, the trial court properly denied defendant’s motion to suppress the identification, and
he is not entitled to a new trial.

                                                -9-
        Confrontation Clause. Lastly, defendant claims that the trial court abused its discretion
by denying him a mistrial because the prosecution asked the officer about the confidential
informant to bolster his identification of defendant. In relation to this claim of error, defendant
asserts that he was prevented from confronting the confidential informant in violation of the
Confrontation Clause. We disagree.

       We generally review for an abuse of discretion the denial of a motion for a mistrial.
People v Bauder, 269 Mich App 174, 194; 712 NW2d 506 (2005). With respect to whether a
defendant received due process, however, we review the matter de novo. People v Odom, 276
Mich App 407, 421; 740 NW2d 557 (2007). “For a due process violation to result in reversal of
a criminal conviction, a defendant must prove prejudice to his or her defense.” Id. at 421-422.

        In People v Chambers, 277 Mich App 1; 742 NW2d 610 (2007), a case similar to this
case, we addressed whether testimony regarding a tip given to the police by a nontestifying
confidential informant violated the defendant’s right to confront the witness. We also considered
whether the defense counsel’s failure to object to the testimony deprived the defendant of
effective assistance of counsel. We explained as follows:

       A defendant has the right to be confronted with the witnesses against him or her.
       The Confrontation Clause prohibits the admission of all out-of-court testimonial
       statements unless the declarant was unavailable at trial and the defendant had a
       prior opportunity for cross-examination. A statement by a confidential informant
       to the authorities generally constitutes a testimonial statement. However, the
       Confrontation Clause does not bar the use of out-of-court testimonial statements
       for purposes other than establishing the truth of the matter asserted. Thus, a
       statement offered to show the effect of the out-of-court statement on the hearer
       does not violate the Confrontation Clause. Specifically, a statement offered to
       show why police officers acted as they did is not hearsay. [Chambers, 277 Mich
       App at 10-11 (internal citations omitted).]

        We held that “the challenged testimony did not violate defendant’s right of
confrontation” because it “was not offered to establish the truth of the informant’s tip” but “to
establish and explain why the detective” surveilled the “defendant’s home and how defendant
came to be arrested.” Id. at 11. The same reasoning applies in this case.

        Here, the challenged testimony did not violate defendant’s right of confrontation because
the testimony was not offered to establish the truth of the informant’s tip. Rather, the
prosecution offered it to explain the police’s internal process that ultimately led to defendant’s
arrest. “Because the Confrontation Clause does not bar the use of out-of-court testimonial
statements for purposes other than establishing the truth of the matter asserted, the testimony did
not violate defendant’s right of confrontation.” Id. Thus, the trial court did not plainly err when
it admitted the officer’s testimony. Further, because the testimony did not violate defendant’s




                                               -10-
right of confrontation, any objection to the testimony would have been futile.5 The trial court did
not abuse its discretion.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




5
  Contrary to defendant’s argument that his counsel’s failure to object to the testimony about the
confidential informant constituted ineffective assistance of counsel, for the reasons stated in
Chambers, 277 Mich app at 10-11, defense counsel was not ineffective for failing to make a
futile objection. See supra.


                                               -11-
