                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 9, 2016
               Plaintiff-Appellee,


v                                                                   No. 321355
                                                                    Macomb Circuit Court
JAMAL IBAN WILLIAMS,                                                LC No. 2013-003660-FC

               Defendant-Appellant.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        A jury convicted defendant of armed robbery, MCL 750.529, and third-degree fleeing or
eluding a police officer, MCL 257.602a(3)(a). The trial court initially sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 20 to 30 years in prison for each conviction.
Later, after being informed that defendant was subject to a mandatory 25-year minimum
sentence for the armed robbery conviction, the court resentenced defendant to 25 to 37½ years
for each conviction. We affirm defendant’s convictions and affirm the 25-year minimum
sentence for defendant’s armed robbery conviction, but remand for reinstatement of defendant’s
original sentence of 20 to 30 years for the fleeing or eluding conviction, and for reinstatement of
the original 30-year maximum term for the armed robbery conviction.

                         I. UNAVAILABLE WITNESS TESTIMONY

        Defendant first argues that the trial court erred in admitting the preliminary examination
testimony of a witness, Larry Cole, who failed to appear at trial. Defendant also argues that the
trial court abused its discretion by failing to provide the missing witness instruction. We
disagree.

        We review a trial court’s decision to admit evidence for an abuse of discretion, People v
Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014), but any questions of constitutional law
are reviewed de novo, People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014).
Whether the prosecution exercised due diligence to produce a witness depends on the facts of
each case. People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). We review the trial
court’s findings of fact for clear error. People v Lawton, 196 Mich App 341, 348; 492 NW2d
810 (1992). “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” People

                                                -1-
v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). “This Court reviews a trial
court’s denial of a request for a ‘missing witness’ instruction for an abuse of discretion.” People
v Snider, 239 Mich App 393, 422; 608 NW2d 502 (2000).

        “Both the United States and Michigan constitutions guarantee a criminal defendant the
right to confront witnesses against him or her.” People v Garland, 286 Mich App 1, 10; 777
NW2d 732 (2009). The opportunity to meet one’s accuser face-to-face is an important, but not
indispensable, element of a defendant’s confrontation right. Maryland v Craig, 497 US 836,
844; 110 S Ct 3157; 111 L Ed 2d 666 (1990). Face-to-face confrontation “must occasionally
give way to considerations of public policy and the necessities of the case.” Id. at 849
(quotations omitted). Consequently, the “Sixth Amendment bars testimonial statements by a
witness who does not appear at trial unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine the witness.” People v Yost, 278 Mich App 341, 370; 749
NW2d 753 (2008). Statements made during a former trial are testimonial and implicate the
confrontation clause. See Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d
177 (2004). Because Cole’s testimony at the preliminary examination was testimonial, for that
testimony to be admissible at trial, the Sixth Amendment required: (1) that Cole was
“unavailable,” and (2) there was a prior opportunity for cross-examination.

       The rules of evidence also address this right to confront witnesses. Pursuant to MRE
804(a)(5), a witness is unavailable if he is absent from the hearing and the proponent of his
statement has been unable to procure his attendance, notwithstanding the exercise of due
diligence. Due diligence is the attempt to do everything that is reasonable, not everything that is
possible, to obtain the presence of a witness. See People v Cummings, 171 Mich App 577, 585;
430 NW2d 790 (1988). The focus is on whether diligent, good-faith efforts were made to
procure the testimony and not on whether more stringent efforts would have produced it. Bean,
457 Mich at 684.

        If a witness is “unavailable,” a party may avoid the hearsay rule and proffer testimony by
the “witness [given] at another hearing of the same or a different proceeding, if the party against
whom the testimony is now offered . . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.” MRE 804(b)(1). “Whether a party had a
similar motive to develop the testimony depends on the similarity of the issues for which the
testimony was presented at each proceeding.” People v Farquharson, 274 Mich App 268, 275;
731 NW2d 797 (2007). The factors considered in evaluating similarity are:

       (1) whether the party opposing the testimony “had at a prior proceeding an
       interest of substantially similar intensity to prove (or disprove) the same side of a
       substantially similar issue”; (2) the nature of the two proceedings-both what is at
       stake and the applicable burden of proof; and (3) whether the party opposing the
       testimony in fact undertook to cross-examine the witness (both the employed and
       available but forgone opportunities). [Id. at 278.]

        Defendant argues that the prosecutor failed to exercise due diligence because his efforts
to locate Cole were tardy. Defendant relies on People v Dye, 431 Mich 58, 75-78; 427 NW2d
501 (1988), and People v James (After Remand), 192 Mich App 568, 571; 481 NW2d 715
(1992). In Dye, the Michigan Supreme Court held that the prosecution did not make a good-faith

                                                -2-
effort to produce missing witnesses for a retrial following a mistrial when the witnesses were
difficult to locate for the first trial, had an incentive to go into hiding, and were known to have
left the state. Id. at 76. This case is distinguishable from Dye because the prosecutor had no
reason to believe before the first day of trial, when Cole did not appear, that he would be difficult
to locate or had incentive to go into hiding. Cole initially participated in the police investigation
of the crimes, he answered a subpoena to testify at the preliminary examination, and although he
had previously been a suspect, he was told that participation could prevent charges.

        In James, 192 Mich App at 572, this Court determined that the prosecution’s efforts were
not sufficient where the police had no contact with the witness for 3½ years and did not make an
effort to locate the witness before the first day of trial, even though the witness had not
responded—as requested—to a mailed subpoena. This Court found that the prosecutor should
have known the witness might have changed addresses and would be difficult to locate after 3½
years. Id. In contrast, only about five months had passed since Cole testified at the preliminary
examination and he had previously responded to a subpoena.

        Although the focus of defendant’s arguments on appeal is that the prosecutor’s efforts
were untimely, defendant also argues in passing that some of the efforts were insufficient. When
Cole did not appear on the first day of trial, the officer in charge called Cole’s cell phone, which
had been disconnected. The officer in charge also called Cole’s home phone twice a day for four
days and left a message each time. The officer in charge determined that Cole was not
incarcerated in Michigan and was unable to find updated contact information using two search
engines. Two visits to Cole’s home netted a phone call by Cole’s father to the Warren Police
Department informing the authorities that Cole had moved south and was not living in Michigan.
Although defendant challenges the lack of effort to verify the veracity and details of this move,
the officer in charge testified that he did not follow up because he only received the information
on the morning of the due diligence hearing on his way to court. Defendant complains that the
government did not investigate whether Cole was on probation, but the focus is whether good-
faith efforts were made, not whether more stringent efforts would have produced the witness.
Bean, 457 Mich at 684. The trial court did not clearly err by concluding that Cole was
unavailable.

        To the extent that defendant also maintains that the admission of Cole’s former testimony
violated his right to confrontation, his argument is without merit. Again, use of former testimony
does not violate a defendant’s right to confrontation provided that, as here, the witness is
unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the
witness. Yost, 278 Mich App at 370; People v Bennett, 290 Mich App 465, 481; 802 NW2d 627
(2010). Defendant does not dispute that he had a previous opportunity for cross-examination,
but instead maintains that this opportunity was not adequate for purposes of a trial requiring guilt
beyond a reasonable doubt. Contrary to defendant’s arguments, while there are differences
between a preliminary examination and a trial, a preliminary examination nonetheless affords a
defendant an opportunity for effective cross-examination. See People v Meredith, 459 Mich 62,
67; 586 NW2d 538 (1998). The Confrontation Clause requires nothing more. See United States
v Owens, 484 US 554, 559; 108 S Ct 838, 842; 98 L Ed 2d 951 (1988) (“the Confrontation
Clause guarantees only an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish” (quotation
marks and citation omitted)). The motives for conducting a preliminary examination and trial

                                                -3-
are strongly similar—to establish a crime has been committed and that the defendant committed
the crime. People v Johnson, 427 Mich 98, 104-105; 398 NW2d 219 (1986).

         Although the burden of proof at the preliminary hearing was lower than that at trial,
defendant still had a similar motive to cross-examine the witnesses against him here. Cole
testified at the preliminary examination that, around the time of the 7-Eleven robbery, defendant
parked his vehicle (a Tahoe) in a residential neighborhood, left the car and stated he was getting
something to drink for “girls” they were meeting, and was gone for 30 to 40 minutes. According
to Cole, when defendant returned, he was sweating, he did not have any alcohol, and he then
engaged in a high speed chase with the police. At the preliminary examination, defense counsel
(the same attorney who represented defendant at trial) elicited testimony from Cole that he did
not know specifically where defendant parked the Tahoe, he did not know whether a 7-Eleven
was nearby, and he never saw defendant with a gun or a mask, which the 7-Eleven cashier
reported the robber had worn. In sum, because Cole was unavailable for trial and defendant had
a prior opportunity for effective cross-examination, the admission of Cole’s preliminary
examination testimony at trial did not violate defendant’s right of confrontation. Yost, 278 Mich
App at 370.

        Furthermore, because the missing witness instruction is only given when due diligence to
produce a witness was not exercised, People v Eccles, 260 Mich App 379, 388-389; 677 NW2d
76 (2004), and the trial court did not clearly err in finding that Cole could not be produced for
trial despite the exercise of due diligence, the court did not abuse its discretion in failing to
provide the instruction.

                                II. PROSECUTOR’S CONDUCT

        Next, defendant makes numerous claims that the prosecutor committed misconduct.
None of these claims were preserved with an appropriate objection at trial. Therefore, we review
the claims for plain error affecting substantial rights. People v Abraham, 256 Mich App 265,
274; 662 NW2d 836 (2003). “Reversal is warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of judicial proceedings, independent of defendant’s innocence.” People v
Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003). Additionally, this Court may
not “find error requiring reversal where a curative instruction could have alleviated any
prejudicial effect.” Bennett, 290 Mich App at 476 (quotation marks and citation omitted).

                         A. PROSECUTOR’S CLOSING ARGUMENT

        Defendant initially challenges two statements in the prosecutor’s closing rebuttal
argument. “Prosecutorial comments must be read as a whole and evaluated in light of defense
arguments and the relationship they bear to the evidence admitted at trial.” People v Brown, 279
Mich App 116, 135; 755 NW2d 664 (2008). Prosecutors are given latitude with regard to their
arguments. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). “They are free to
argue the evidence and all reasonable inferences from the evidence as it relates to their theory of
the case.” Id. (Quotation marks and citation omitted). A prosecutor may use “hard language” or
“[e]motional language” if the language does not interfere with the defendant’s right to a fair trial


                                                -4-
and is supported by the evidence. People v Ullah, 216 Mich App 669, 678-679; 550 NW2d 568
(1996).

        First, the prosecutor stated, “I’m asking you on behalf of [the cashier] to give him
something back. Him working at 7-Eleven is never going to be the same anymore.” “Appeals to
the jury to sympathize with the victim constitute improper argument.” People v Watson, 245
Mich App 572, 591; 629 NW2d 411 (2001). Although the prosecutor made other arguments that
the evidence supported a guilty verdict, the prosecutor’s statement here suggested that the jury
should also convict defendant to make the cashier whole following the experience. This
statement was not made in direct response to an argument by defense counsel. Cf. Abraham, 256
Mich App at 275 (where defense counsel accused the prosecutor of brutalizing the child
defendant, the prosecutor’s response that—considering the case at length—the victim deserved
justice was not misconduct). Therefore, the statement constituted plain error.

       Second, the prosecutor stated:

               And as far as the mask and the gun is concerned, we have no mask, we
       have no gun. Have you ever heard the concept a criminal might want to ditch
       something, doesn’t want to be found with something on him? . . . Did we find a
       gun? Yes, we found a gun. Do I know that it was the exact gun used in the
       robbery? No, I don’t. But what I do know is that we found a gun within 12 to 14
       hours after the robbery was committed, directly on the line from the 7-Eleven to
       where he traveled. I do know that the gun was found out on the front lawn, just
       out in the open. You think maybe if someone is running by and he pitches the
       gun that that may be something that happened? Could be.

As defendant argues, the officer in charge’s testimony about the recovery of a gun was somewhat
different. The officer explained that the gun was recovered “the next day,” but did not
specifically testify that this occurred 12 to 14 hours after the robbery. He also never testified that
the gun was recovered from a “front lawn” or “out in the open.” A prosecutor may not make a
statement of fact to the jury that is unsupported by evidence, but the prosecutor is free to argue
the evidence and any reasonable inferences that may arise from the evidence. Ackerman, 257
Mich App at 450. Therefore, to the extent that the prosecutor relied on facts not in evidence, the
prosecutor committed plain error. Although defendant also challenges the statement that the gun
was recovered “directly on line from the 7-Eleven to where he traveled,” this fact could be
reasonably inferred from the officer in charge’s testimony that the gun was found on
Cunningham, just north of Eight Mile and on the same side of the street where the officers
“chased the Tahoe down” a mile away from the store.

        In any event, defendant cannot establish that the challenged statements prejudiced him.
A timely objection and request for a curative instruction could have cured any perceived
prejudice. People v Unger, 278 Mich App 210, 240-241; 749 NW2d 272 (2008). Indeed, even
without an objection, the trial court instructed the jurors to consider only “the evidence that has
been properly admitted in this case,” that “[t]he lawyers’ statements and arguments are not
evidence,” and that “[y]ou must not let sympathy or prejudice influence your decision.” These
instructions to the jury were sufficient to alleviate the prejudicial effect of the inappropriate
prosecutorial arguments. Id. Moreover, the appeal to the jury’s sympathy for the cashier was

                                                 -5-
isolated, Watson, 245 Mich App at 591-592 (prosecutor’s argument that the defendant treated the
victim in a way that no animal should be treated was isolated and did not cause prejudice
requiring reversal); People v Wise, 134 Mich App 82, 104-106; 351 NW2d 255 (1984)
(characterizing the prosecutor’s comment concerning the victim’s desire for justice as an
improper appeal to jury sympathy, but declining to find error requiring reversal), and the
prosecutor’s discussion of specific, unadmitted details about the recovery of a gun was not
germane to the jury’s decision of guilt or innocence. Accordingly, no outcome-determinative
error with respect to the prosecutor’s closing rebuttal argument requires reversal.

      B. CLAIMS OF MISCONDUCT RAISED IN DEFENDANT’S STANDARD 4 BRIEFS

        Defendant raises additional claims of prosecutorial misconduct in two Standard 4 briefs
filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4.1

                        1. EVIDENCE OF THE RECOVERY OF THE GUN

        Several of defendant’s claims relate to evidence that the gun was recovered along the
route of the police chase on the day after the robbery. Defendant seems to argue that the trial
court ruled before trial that this evidence was inadmissible. Defendant’s argument is inconsistent
with the record. Defendant cites a transcript from a Walker2 hearing to support his argument, but
that proceeding was limited to the voluntariness of defendant’s statement to the police.
Defendant also cites the hearing on the motion to quash. Although the parties agreed at that
hearing to dismiss the felony-firearm charge, there was again no reference to, or the exclusion of,
evidence about the recovery of the gun.

         Defendant also appears to argue that the evidence regarding the recovery of the gun was
false, and therefore the prosecutor committed misconduct in eliciting it. A prosecutor may not
knowingly use false testimony to obtain a conviction. People v Lester, 232 Mich App 262, 276-
277; 591 NW2d 267 (1998), overruled in part on other grounds in People v Chenault, 495 Mich
142, 146; 845 NW2d 731 (2014). But nothing in the record demonstrates that this evidence was
false. In closing argument, the prosecutor acknowledged that there was no “exact” proof or
fingerprints establishing that this gun was used by defendant in the robbery, but argued that the
jury could infer that defendant disposed of the gun along the route of the police chase and that
fingerprints might not be recovered because the robber wore gloves. Defense counsel had an
opportunity to cross-examine the officer in charge about this evidence. See People v Parker, 230
Mich App 677, 690; 584 NW2d 753 (1998) (reversal is not necessary when the prosecutor does
not attempt to conceal contradictions in a witness’s testimony and defense counsel is afforded a
sufficient opportunity to impeach the witness’s credibility with his or her prior statements).
Absent any knowing use of false testimony, defendant cannot establish that the prosecutor’s
elicitation of this evidence denied him a fair trial.




1
    This Court granted defendant’s motion to file the second Standard 4 brief.
2
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                                 -6-
       To the extent that defendant argues the gun was inadmissible under MRE 404(b),
defendant’s argument is inapposite. MRE 404(b)(1) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity therewith . . . .” Evidence regarding the recovery of the gun was not admitted to
demonstrate defendant’s propensity to commit the crime, but rather to establish that defendant
was armed with a gun during the charged robbery. “[A]cts comprised by or directly evidencing
the ‘conduct at issue’ are not subject to scrutiny under MRE 404(b).” People v Jackson, 498
Mich 246, 262; 869 NW2d 253 (2015) (citation omitted).

       To the extent that defendant argues the gun was inadmissible under MRE 403,
defendant’s argument is unpersuasive. MRE 403 provides:

               Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of time,
       or needless presentation of cumulative evidence.

This Court has explained that unfair prejudice

       “ ‘refers to the tendency of the proposed evidence to adversely affect the
       objecting party’s position by injecting considerations extraneous to the merits of
       the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.’ ” Moreover,
       admission of “[e]vidence is unfairly prejudicial when . . . [the danger exists] that
       marginally probative evidence will be given undue or preemptive weight by the
       jury.” [People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011)
       (citations omitted).]

Although all relevant evidence is prejudicial, People v Murphy (On Remand), 282 Mich App
571, 582-583; 766 NW2d 303 (2009), the record does not establish that the evidence about the
recovery of a gun in this case injected considerations extraneous to the merits of the lawsuit,
such as shock or bias, People v Pickens, 446 Mich 298, 337; 521 NW2d 797 (1994). Moreover,
given the prosecutor’s arguments conceding that the gun could not be conclusively tied to the
charged crimes, there was no danger that it would be given undue or preemptive weight.
Cameron, 291 Mich App at 611.

                          2. REFERENCE TO FELONY-FIREARM

       Defendant also argues that the prosecutor improperly referenced the felony-firearm
charge in closing argument. Defendant’s argument is inconsistent with the record. There is no
reference to the crime of felony-firearm, MCL 750.227b, in the prosecutor’s arguments.

                           3. ELICITING PERJURED TESTIMONY

      Defendant argues that the prosecutor improperly elicited perjured testimony from Officer
James Twardesky that defendant ran from the scene of the car accident following the police
chase with a black hooded sweatshirt matching the suspect’s clothing in the armed robbery.
Defendant claims that the scout car video proves that the person running was not wearing a
hooded sweatshirt. However, defendant has failed to provide the scout car video as required by

                                                 -7-
MCR 7.210, despite a request from this Court. Because any determination of the merits of this
argument necessitates review of the video, defendant’s failure to provide it waives appellate
review of this argument. People v Anderson, 209 Mich App 527, 535; 531 NW2d 780 (1995).
We note, however, that Officer Twardesky was not the only witness who testified that defendant
was wearing a hooded sweatshirt; Cole testified similarly.

                      4. ELICITING IMPROPER EXPERT TESTIMONY

        Defendant further argues that the prosecutor committed misconduct by eliciting
testimony from evidence technician, Jason Booms, without qualifying him as an expert. A
police officer may provide lay testimony regarding his observations in a criminal matter and his
“opinion formed as a result of those observations.” People v Oliver, 170 Mich App 38, 50; 427
NW2d 898 (1988); see MRE 701 (“[i]f the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inferences which
are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue.”). An officer need only be
qualified as an expert when his testimony depends on scientific, technical, or other specialized
knowledge. Id. Here, Booms merely testified regarding the cuts and scrapes he observed on
defendant, the tears and blood he observed on defendant’s jeans, and the red dye he observed on
defendant’s hands. The prosecutor did not elicit any testimony that required scientific, technical,
or other specialized knowledge. Rather, the prosecutor asked, “Now, you don’t know how those
holes were in the jeans to be fair to . . . [defendant], you don’t know how those got there, is that
correct?” And Booms responded, “Correct.” Because it was not necessary to qualify Booms as
an expert to provide this testimony, defendant cannot establish that the prosecutor’s elicitation of
it denied him a fair trial.

        We note that, on cross-examination, defense counsel asked Booms to reach conclusions
and form opinions regarding whether a barbed wire fence3 could have caused defendant’s
injuries and the damage to his clothing. Even if Booms’s responses to these questions—opinions
formed as a result of his observations—were not allowed under MRE 701, however, defendant
cannot establish error requiring reversal on appeal. “A party may not claim as error on appeal an
issue that the party deemed proper in the trial court because doing so would permit the party to
harbor error as an appellate parachute.” Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863
NW2d 352 (2014) (quotation omitted). Because defendant injected these opinions during cross-
examination, defendant cannot now complain of an error he precipitated. To hold otherwise
would allow defendant to harbor error as an appellate parachute. Id.

         In a related argument, defendant argues that the prosecutor knowingly elicited false
testimony from Booms; specifically that he “could not have conducted these exams himself as he
testified to so doing on the record before the jury . . . .” This argument may be deemed waived
because it is not articulated in the Statement of Questions Presented. MCR 7.212(C)(5); English
v Blue Cross Blue Shield of Mich, 263 Mich App 449, 459; 688 NW2d 523 (2004). Regardless,


3
  Officer Twardesky testified that defendant jumped over a barbed wire fence after running from
the Tahoe during the police chase.


                                                -8-
although a prosecutor may not knowingly use false testimony to obtain a conviction, Lester, 232
Mich App at 276-277, defendant points to nothing establishing that Booms’s testimony was
false. The photographs of the injuries about which he testified were admitted at trial.

                           III. EFFECTIVE ASSISTANCE OF COUNSEL

        In his Standard 4 brief on appeal, defendant makes several arguments that he was denied
the effective assistance of counsel. We disagree. Because defendant did not raise these claims in
a motion for a new trial or request for a Ginther4 hearing, review is limited to errors apparent on
the record. People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012). As this Court
stated in Gaines, 306 Mich App at 300:

          Effective assistance of counsel is presumed, and defendant bears a heavy burden
          of proving otherwise. To demonstrate ineffective assistance, defendant must
          show: (1) that his attorney’s performance fell below an objective standard of
          reasonableness, and (2) that this performance so prejudiced him that he was
          deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
          existence of a reasonable probability that, but for counsel’s error, the result of the
          proceeding would have been different.” [Citations omitted.]

       Defendant argues that defense counsel was ineffective for failing object to the evidence
regarding the recovery of the gun, and failing to request a cautionary instruction regarding this
evidence. We concluded earlier that defendant failed to establish error surrounding the
presentation of this evidence. Because any objection would have been futile, defense counsel
was not ineffective for failing to object. People v Goodin, 257 Mich App 425, 433; 668 NW2d
392 (2003).

        Next, defendant argues that defense counsel failed to investigate the video of the police
chase or review it in advance of trial, and as a result, he could not cross-examine the police about
it. Defendant has not established the factual predicate regarding defense counsel’s conduct.
Therefore, this claim necessarily fails. People v Stokes, ___ Mich App ___; ___ NW2d ___
(2015) (Docket No. 321303), lv pending; slip op at 14 (“[a] defendant raising a claim of
ineffective assistance of counsel bears the burden of proving the factual predicate of his or her
claim”). Moreover, contrary to defendant’s claim, it appears from the record that defense
counsel requested copies of the videos several months before trial. Furthermore, because
defendant has failed to provide the scout car video as required by MCR 7.210, and because any
determination regarding prejudice would necessitate review of the video, defendant’s failure to
provide it waives appellate review of this argument. Anderson, 209 Mich App at 535.

        Defendant additionally appears to argue that he requested that defense counsel cross-
examine Officer Twardesky about alleged discrepancies between his testimony and the scout car
video, and defense counsel explained to defendant that it was unprofessional to tell the jury that
the police lie. Again, defendant’s claim fails because he does not establish a factual predicate


4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                   -9-
regarding defense counsel’s conduct. Stokes, ___ Mich App ___; slip op at 14. And in any
event, it is presumed that defense counsel’s decisions regarding what evidence to present
constitute trial strategy, which this Court will not review with the benefit of hindsight. People v
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). Further, because defendant has failed to
provide the scout car video as required by MCR 7.210, and because any determination regarding
prejudice necessitates review of the video, defendant’s failure to provide it waives appellate
review of this argument. Anderson, 209 Mich App at 535.

        Finally, defendant argues that defense counsel was ineffective for failing to properly
articulate a request for an investigator to assist his defense that he was not the perpetrator
because he was wearing different shoes at the time of his arrest than worn by the robber. A trial
court has discretion to appoint an investigator to ensure due process. See People v Johnson, 245
Mich App 243, 260; 631 NW2d 1 (2001). Here, the trial court concluded that defense counsel,
or by extension the jury, could independently compare the shoes worn by defendant at the time
of his arrest (as shown in the police interview video) with the shoes worn by the perpetrator (as
shown in the surveillance video of the robbery). Defendant does not argue that an experienced
investigator could have provided additional services. Thus, defendant cannot establish that, but
for defense counsel’s allegedly deficient representation in requesting an investigator, the trial
court would have appointed one to serve him and the investigator would have made a difference
in the outcome of the trial.

        In a related argument, defendant argues that defense counsel was ineffective for failing to
pursue the defense about the shoes after the request for an investigator was denied. Again,
defendant cannot establish prejudice. Defendant failed to provide this Court with the
surveillance video of the robbery and the scout car video as required by MCR 7.210. Therefore,
this Court cannot review whether any differences existed between the shoes. Moreover, even if
defendant was wearing different shoes when he was arrested, this fact would not eliminate
defendant as the perpetrator given the many hours between the crimes and the arrest, during
which defendant could have changed his shoes.

       Finally, defendant argues that defense counsel should have requested a Brady5 hearing.
But defendant does not argue what evidence the prosecution suppressed. See Chenault, 495
Mich at 155. Therefore, defendant cannot establish the requisite deficient performance or
prejudice.

                                  IV. CUMULATIVE ERROR

        In his second Standard 4 brief, defendant alleges that the cumulative effect of all the
errors at trial requires reversal. We disagree. This Court reviews claims of cumulative error to
determine if the combination of alleged errors denied the defendant a fair trial. Brown, 279 Mich
App at 145.




5
    Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                               -10-
         “The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal, but the cumulative
effect of the errors must undermine the confidence in the reliability of the verdict before a new
trial is granted.” Id. at 146 (citations omitted). “[O]nly ‘actual errors’ are aggregated when
reviewing a cumulative-error argument.” Gaines, 306 Mich App at 310. Defendant has only
established error regarding two statements in the prosecutor’s closing rebuttal argument. But as
we concluded earlier in this opinion, the remarks were isolated, the prosecutor’s reference to any
non-record evidence was not germane to the jury’s decision of guilt or innocence, and the trial
court’s instructions were sufficient to alleviate any prejudicial effect. Because there is no
additional error to accumulate in support of a cumulative-error argument, defendant’s argument
fails.

                                        V. SENTENCING

        At the original sentencing hearing, the trial court sentenced defendant to 20 to 30 years in
prison for the armed robbery and third-degree fleeing or eluding convictions. The Michigan
Department of Corrections (MDOC) later sent a letter to the trial court advising that because
defendant was sentenced as a fourth-offense habitual offender, his minimum sentence should
have been 25 years. The trial court then held a hearing at which defendant and the parties
appeared. At the hearing, the trial court determined that defendant was subject to a mandatory
25-year minimum sentence under MCL 769.12(1)(a) for the armed robbery conviction. The trial
court then ordered resentencing. It then determined that because it was increasing the minimum
sentence, “the max has also got to be moved.” The trial court resentenced defendant to 25 to
37½ years in prison for each conviction.

        Defendant now challenges the trial court’s resentencing on several grounds. Defendant
first argues that the trial court erred by sua sponte ordering his resentencing following the
notification from the MDOC. We disagree. MCR 6.429(A) authorizes a court to correct an
invalid sentence, and a motion for resentencing is not a condition precedent for the court to
correct an invalid sentence under that rule. People v Comer, ___ Mich App ___; ___ NW2d ___
(2015) (Docket No 318854), lv pending; slip op at 3-4. Defendant was sentenced as a fourth-
offense habitual offender. MCL 769.12(1)(a) provides that where a defendant is sentenced as a
fourth-offense habitual offender and “the subsequent felony is a serious crime or a conspiracy to
commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies,
the court shall sentence the person to imprisonment for not less than 25 years.” Defendant was
convicted of armed robbery, which qualifies as a “serious crime” under MCL 769.12(6)(c). The
prior convictions used to establish defendant’s habitual offender status were three prior
convictions for second-degree home invasion, an offense that qualifies as a “listed prior felony”
under MCL 769.12(6)(a)(iii). Because the trial court sentenced defendant as a fourth-offense
habitual offender, it was required to impose a minimum sentence of 25 years under MCL
769.12(1)(a). Accordingly, defendant’s original minimum sentence of 20 years was invalid, and
the court was authorized to correct that sentence under MCR 6.429(A).

        Defendant argues that even if the trial court had the authority to correct his invalid armed
robbery sentence, it erred by also resentencing him to a minimum of 25 years in prison for the
third-degree fleeing or eluding conviction, which is not a “serious crime” under MCL
769.12(6)(c). We agree.

                                               -11-
       Defendant correctly argues that third-degree fleeing or eluding is not a serious crime as
defined in MCL 769.12(6)(c). Thus, this conviction was not subject to a 25-year mandatory
minimum sentence under MCL 769.12(1)(a). In People v Pontius, 485 Mich 970, 970; 774
NW2d 693 (2009), our Supreme Court explained:

       A trial court does not have authority to modify a valid sentence. MCR 6.429(A);
       People v Holder, 483 Mich 168; 767 NW2d 423 (2009). Where a court imposes a
       sentence that is partially invalid, only the invalid part of the sentence may be set
       aside. MCL 769.24; People v Thomas, 447 Mich 390, 393; 523 NW2d 215
       (1994).

In Pontius, our Supreme Court concluded that the trial court had the authority to change an
invalid term-of-years sentence for conspiracy to commit murder to a life sentence, but it did not
have the authority to change concurrent sentences to consecutive sentences because the original
concurrent sentences6 were valid. In this case, defendant’s original sentence of 20 to 30 years for
third-degree fleeing or eluding was not invalid. Therefore, the trial court was not authorized to
modify that sentence. Accordingly, we remand for reinstatement of defendant’s original
sentence of 20 to 30 years for the fleeing or eluding conviction.

       Defendant further argues that the trial court erred by increasing his maximum sentence
from 30 years to 37½ years, which the trial court apparently felt was necessary to comply with
the two-thirds rule. See People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and MCL
769.34(2)(b).

        In Tanner, the Supreme Court determined that an indeterminate sentence must have an
interval between the minimum and maximum terms sufficient to allow corrections authorities to
exercise their jurisdiction and judgment. Tanner, 387 Mich at 689-690. A sentence with too
short an interval between the minimum and maximum terms frustrates the intent of the
indeterminate sentence act; any sentence that has a minimum that exceeds two-thirds of the
maximum is improper. Thomas, 447 Mich at 392; Tanner, 387 Mich at 690. The Legislature
codified the Tanner two-thirds rule in MCL 769.34(2)(b), which provides that “[t]he court shall
not impose a minimum sentence . . . that exceeds 2/3 of the statutory maximum” (emphasis
added).

        As defendant argues, the two-thirds rule of Tanner does not apply when a defendant is
convicted of a crime requiring a mandatory minimum sentence. Tanner, 387 Mich at 690.
Further, when a statute authorizes imprisonment for “life or any term of years”—because the
minimum will never exceed two-thirds of the statutory maximum sentence of life—the two-
thirds rule does not apply. People v Powe, 469 Mich 1032, 1032; 679 NW2d 67 (2004).




6
  Consecutive sentencing was ordered under MCL 768.7b(2), which gives a court discretion to
impose concurrent or consecutive sentences. See People v Pontius, unpublished opinion per
curiam of the Court of Appeals, issued March 24, 2009 (Docket No. 282187), slip op at 2.


                                               -12-
       Defendant was convicted of an offense that, under MCL 769.12(1)(b), is punishable by
imprisonment “for life or for a lesser term.” Defendant was also subject to a mandatory
minimum sentence of 25 years for his armed robbery conviction. Therefore, the two-thirds rule
does not apply. Consequently, the maximum term of defendant’s original sentence for armed
robbery was not invalid. Under Pontius, 485 Mich 970, citing Holder, 483 Mich 168, and
Thomas, 447 Mich at 393, the trial court was authorized to correct only the invalid portion of
defendant’s sentence for armed robbery, which was the invalid minimum term. The maximum
term was not invalid, either as originally imposed or after the increase of the minimum sentence.
Therefore, the trial court erred when it increased defendant’s maximum sentence on
resentencing. Accordingly, on remand, the trial court shall also reinstate defendant’s original 30-
year maximum sentence for the armed robbery conviction.

                                       VI. CONCLUSION

        In conclusion, we affirm defendant’s convictions of armed robbery and third-degree
fleeing or eluding a police office. We also affirm the 25-year minimum sentence imposed on
resentencing for defendant’s armed robbery conviction. However, we remand for reinstatement
of defendant’s original sentence of 20 to 30 years for the fleeing or eluding conviction, and for
reinstatement of the original 30-year maximum sentence for defendant’s armed robbery
conviction.

        Affirmed in part and remanded for further proceedings consistent with this opinion. We
do not retain jurisdiction.

                                                            /s/ Donald S. Owens
                                                            /s/ Stephen L. Borrello
                                                            /s/ Cynthia Diane Stephens




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