                             Court of Appeals, State of Michigan

                                              ORDER



       Michael J. Talbot, Chief Judge, acting under MCR 7.21 l(E)(2), orders:

        The opinions in the following appeals are hereby AMENDED to correct a clerical error in the
date of issuance. The date on the opinions is corrected to read April 10, 2018 .

              334631 People of MI v Maurice Larnell Glover
              335396 People of MI v Robert Daren Hale
              336245 People of MI v Toriono Kent
              336893 Goldcorp Inc v Varoujan M Basmajian
              337595 Jeffery Beck v Alpine Shredders Limited
              337951 Teddy 23 LLC v Department of Treasury

       In all other respects, the opinions remain unchanged.




                        A true copy entered and certified by Jerome W. Zimmer Jr. , Chief Clerk, on




                               APR 1 D 2018
                                       Date
                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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

v                                                                   No. 334631
                                                                    Monroe Circuit Court
MAURICE LARNELL GLOVER,                                             LC No. 15-242458-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial conviction of conspiracy to commit armed
robbery, MCL 750.157a and MCL 750.529. The trial court sentenced defendant to 250 to 480
months’ imprisonment for the conspiracy to commit armed robbery conviction. We affirm.

       In November 2015, Kristofer Miller agreed to have defendant stop by his home.
Defendant and Miller had known each other for a “few years;” defendant was aware that Miller
grew and processed marijuana in his home, and defendant knew where Miller stored his
marijuana. Additionally, two days earlier, defendant was present when Miller called his own
mother a “safe,” in reference to how Miller’s mother provided him with money.

        On that day, defendant and Miller were inside Miller’s home when Miller noticed that
defendant received a call on his cellular phone; however, Miller only heard “the last bit” of the
call where defendant said, “Like, yeah, come on.” Subsequently, Miller noticed an automobile
pull into his driveway on his surveillance system monitor, and then he saw two men heading
towards his door. Miller went to investigate while defendant remained in Miller’s room.

       As Miller headed to his door, he encountered the men, and after a brief exchange, one of
the men pointed a gun at Miller and demanded that he surrender his cellular phone. After a fight,
Miller was beaten and his hands and feet were bound together with zip ties. During this time,
Miller attempted to scream and make loud noises to catch defendant’s attention, as he hoped
defendant would call for help. After Miller was bound, the men demanded to know where to
find Miller’s marijuana and safe. During trial, Miller explained that he did not have a safe in his
home and that the “general public” would not know that he kept marijuana in his home.

      Eventually, one of the men, who was never identified, started searching through Miller’s
home, while the man with the gun stayed to watch Miller. During trial, Miller identified that

                                                -1-
man as Darnell Jones, but he clarified that he did not know Jones at that time and that he only
learned his name during subsequent court proceedings.

         Ultimately, Miller slipped free of his bonds and escaped. He returned home after calling
the police only to discover that defendant was gone. Video recordings taken from Miller’s
surveillance system showed that before they left, Jones and the unidentified man had placed guns
taken from the inside of Miller’s home into defendant’s automobile. The recordings also showed
that defendant only left after Jones and the other man had departed. Defendant was eventually
arrested later that evening while traveling in the same automobile as Jones. Additionally, during
trial, cellular phone records showed that defendant had twice called Jones close to when the
incident occurred. Jones was charged as defendant’s codefendant, and Jones ultimately entered a
plea of nolo contendere for armed robbery before defendant’s trial.

        During trial, defendant had intended to call Jones as a witness; however, the trial court
received notification that Jones was refusing to testify. Therefore, the trial court called Jones to
the witness stand outside of the presence of the jury and placed him under oath to determine if he
planned to testify. Jones quickly clarified that he did planned to testify; however, he explained
that he wanted to inform the trial court that on the previous day, his attorney approached him
with an offer from the prosecution to reduce his sentence in exchange for testimony that Jones
had called him on the day of the robbery. The trial court inquired, “If the question were asked of
you did [defendant] call you, what would your answer be?” Jones replied, “I would say no. You
all can check you [sic] all records that you all have and that should show proof that he didn’t call
me.”

        The trial judge asked, “But nobody told you, Mr. Jones, you come in and lie and we’ll
knock 15 months off your sentence?” Jones responded, “No, they just said they lookin’ [sic]
forward for me to pretty much implicate [defendant] saying I called or he called me.” Jones
reiterated that defendant did not call him. Both the prosecutor and Jones’s attorney explained
that they had never reached a deal and that Jones’s attorney was merely relaying a “potential”
offer.

        Regardless, Jones began to insist that he had to testify about the purported collusion
between the prosecutor and his attorney. The trial court repeatedly tried to explain to Jones why
that testimony could not be offered to the jury. Jones, however, persisted at expressing his intent
to bring his claims before the jury. Ultimately, defendant’s trial counsel elected to not call Jones
as a witness, despite defendant’s objections to that strategy.

        Defendant contends that he was denied the effective assistance of counsel because his
trial counsel did not call Jones as a witness during trial, and in his Standard 4 Brief,1 defendant
contends that his trial counsel was ineffective for failing to present evidence that was discussed
during his opening statement. We disagree.



1
 Defendant’s “Standard 4 Brief” is a pro se brief pursuant to Administrative Order No. 2004-6,
Standard 4, 471 Mich cii (2005).


                                                -2-
         To preserve a claim of ineffective assistance of counsel, a defendant must move for a new
trial or a Ginther2 hearing to develop a record to support the claim. People v Sabin (On Second
Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Defendant moved for a new trial
based on his trial counsel’s failure to call Jones as a witness. Ultimately, after an evidentiary
hearing, his motion was denied. Therefore, this issue is preserved for appellate review insofar as
to whether defendant’s trial counsel was ineffective for failing to call Jones as a witness. But
defendant contends in his Standard 4 Brief that his trial counsel was ineffective for failing to
present evidence in accord with his opening statement because he did not call Jones to testify.
Because that issue was not raised in defendant’s motion for a new trial, it was not addressed
during the evidentiary hearing.

        Therefore, solely with regard to defendant’s contention relating to his trial counsel’s
opening argument, “because the trial court did not hold an evidentiary hearing, our review is
limited to the facts on the record.” People v Wilson, 242 Mich App 350, 352; 619 NW2d 413
(2000). The record on appeal consists of “the original papers filed in that court or a certified
copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits
introduced.” MCR 7.210(A)(1).

        “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“Findings on questions of fact are reviewed for clear error, while rulings on questions of
constitutional law are reviewed de novo.” People v Jordan, 275 Mich App 659, 667; 739 NW2d
706 (2007). When, no evidentiary hearing on a defendant’s claims of ineffective assistance has
been held, this Court’s review is limited to mistakes apparent on the record. Id.

        The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const, Am VI; Const 1963, art 1, § 20, is the right to the effective assistance of counsel. People
v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). To obtain a new trial for a denial of this
right, “a defendant must show 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).

        Defense counsel’s failure to call a witness can constitute ineffective assistance only if it
deprives the defendant of a substantial defense, one that might have made a difference in the
outcome of the trial. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009); People v
Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). But defense counsel has wide discretion
in matters of trial strategy and may take calculated risks in order to win difficult cases. People v
Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). There is a strong presumption of
effective assistance of counsel. Id. The fact that a reasonable trial strategy fails does not
demonstrate that counsel provided ineffective assistance. People v Kevorkian, 248 Mich App
373, 414-415; 639 NW2d 291 (2001).



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -3-
       During the hearing on defendant’s motion for a new trial, defendant’s trial counsel,
Steven Jedinak, testified that he was aware Jones was defendant’s codefendant and that he had
entered a plea of nolo contendere to one count of armed robbery. Jedinak explained that even
though he subpoenaed Jones, Jones’s attorney would not allow Jedinak to interview Jones.
Jedinak testified that he decided to not call Jones as a witness only after Jones spoke during trial.

        Jedinak explained that defendant opposed his decision, but that he had strategic reasons
for his decision. He noted that he asked Jones if he had any “phone contact” with defendant on
the day of the incident, and Jones responded that he did not. According to Jedinak, Jones’s
testimony would have been “completely contradictory” to defendant’s testimony and the
evidence that the prosecution had presented. Jedinak was also concerned by the fact that Jones
had just entered a plea of nolo contendere for armed robbery and that Jones had three “prior
felony burglary” convictions as well.

        During cross-examination, Jedinak explained that he believed that Jones’ providing
testimony inconsistent with defendant’s would have resulted in the jury’s concluding that either
“one of them is lying or both of them are lying” and that would have “damaged somebody’s
credibility to hurt the chances of prevailing.” Moreover, Jedinak was concerned by Jones’s
insistence that he needed to inform the jury about how “the prosecutor or his defense attorney
wanted him to lie in exchange for a reduction of time,” despite the trial judge’s “admonishment
not to[.]” Jedinak explained that he was concerned by Jones’s “tirade” and how Jones never
“wavered” from insisting that he must tell the jury about the purported collusion between Jones’s
attorney and the prosecutor.

       But Jedinak explained that defendant had previously informed him that Jones had
“apparently bought several types of narcotics from Mr. Miller over a period of time.” Jedinak
also conceded that this information might suggest that Miller was lying when he testified that he
did not know Jones. During redirect, Jedinak confirmed that defendant could have testified that
Jones was incorrect about their having no phone contact.

        Jedinak believed that the prosecution had a strong case against defendant, especially
because the prosecution presented video recordings of defendant arriving before and leaving
after the two men who robbed Miller, and the “armed robbers, one Mr. Jones, the other one
unidentified, dumping two of the guns they stole from the house inside of [defendant’s] vehicle.”
Additionally, Jedinak explained that the prosecution had “detailed phone evidence” and that
Jones and defendant “were found together 12 hours later in Toledo in the same vehicle when
they were both arrested.”

        Defendant testified that he was not involved in Miller’s robbery. He explained that he
believed Jones did not understand the question posed to him when Jones testified that he did not
have any phone contact with defendant on the day of the incident because Jones had called
defendant asking for a ride on that morning. He explained that he insisted that Jones testify
because Jones was the only one who knew “the truth” regarding the incident. Defendant
believed that Jedinak’s refusal to call Jones as a witness resulted in the complete breakdown in
their attorney-client relationship. But during cross-examination, defendant admitted that he did
know what Jones’s testimony would be, or that was he aware of Jones’s prior felony convictions.


                                                -4-
        Ultimately, the trial court denied defendant’s motion for a new trial because defendant
was not denied the effective assistance of counsel. The trial court explained that while Jedinak’s
decision was contrary to defendant’s wishes, Jedinak properly explained why he did not call
Jones, including: (1) his concern that Jones would impeach defendant’s credibility, and (2)
Jones’s insistence at presenting his claims of collusion to the jury without any heed to the trial
court’s warnings that such testimony would be not tolerated during trial.

        Defendant contends that he was denied the effective assistance of counsel when Jedinak
failed to call Jones as a witness. Defendant’s contention is without merit.

        According to defendant, Jedinak’s refusal to call Jones as a witness was a grave error
because Jones would have provided testimony that would have completely exonerated defendant.
Defendant relies on Jones’s affidavit, which was attached to his motion for a new trial, wherein
Jones details how he previously procured marijuana from Miller with cash or heroin, and how
the incident with Miller was, in fact, a fight that erupted after Miller discovered that Jones did
not have any heroin to trade for marijuana. Therefore, defendant contends that Jones would have
exonerated him and undermined Miller’s credibility because Miller testified that he did not know
Jones. Moreover, defendant asserts that Jones was merely mistaken about not having any phone
contact with him on the day of the incident, and that if Jones had testified, defendant would have
been able to “set the record straight” by testifying that Jones was mistaken about that point.

        Defendant, however, has failed to demonstrate how Jedinak’s refusal to call Jones as a
witness deprived him of a substantial defense or how that decision was outcome-determinative.
Even when assuming that Jones would have testified as set forth in his affidavit, we note that
Jones’s testimony would have called into question the veracity of defendant’s testimony.
Specifically, during trial, when the trial court asked Jones if defendant had called him, Jones
replied, “I would say no. You all can check you [sic] all records that you all have and that
should show proof that he didn’t call me.” Jones’s testimony that defendant had not called him
would have directly conflicted with the prosecution’s evidence that cellular phone records
showed that defendant called Jones twice close to the time of the incident and defendant’s own
testimony that he called Jones multiple times on that day.

       Even if defendant had tried to explain that Jones was mistaken about their telephone
contact, the jury would have been presented with ample grounds to conclude Jones and
defendant had not provided truthful testimony. Moreover, undermining defendant’s credibility
would have been a highly questionable strategy where defendant testified that he did not hear
any commotion during the incident; he did not call 911 after discovering blood drops and that
Miller was missing; he did not call 911 after he discovered guns in his backseat after fleeing
from Miller’s home, and it was happenstance that he was in the same automobile as Jones on the
evening after the incident. Defendant’s testimony already straddled the incredible; there was no
need to inject testimony that would have pushed defendant’s credibility further over the edge.

       Nor would the value of impeaching Miller’s testimony outweigh undermining
defendant’s own testimony: Miller’s account was corroborated by video recordings taken from
his home surveillance system, the blood at the scene, and the zip ties used to bind Miller found
inside of Miller’s home. Therefore, defendant has failed to rebut the strong presumption that
Jedinak exercised sound trial strategy when he refused to call Jones as a witness where

                                               -5-
defendant’s trial strategy hinged upon defendant’s own testimony that he was the victim of
happenstance and when Jones’s testimony would have undermined defendant’s credibility.
Further, Jedinak was also properly wary of calling Jones to testify knowing Jones repeatedly
refused to agree to comply with the trial court’s instructions to not inject irrelevant testimony
regarding the prosecution’s purported collusion with Jones’s attorney.

       In his Standard 4 Brief, defendant argues that Jedinak was ineffective because in his
opening statement, Jedinak contended that the evidence at trial would show that Miller had two
customers and that defendant’s connections with the incident and Jones were mere happenstance.
Defendant’s argument lacks merit.

        Specifically, defendant argues that Jedinak failed to provide him with effective assistance
of counsel because his refusal to call Jones as a witness during trial resulted in Jedinak’s not
presenting evidence that Jones was also Miller’s customer or evidence relating to defendant’s
presence being happenstance. However, defendant has merely reframed the same contention
raised in his brief on appeal, i.e., that Jedinak was ineffective for failing to call Jones as a
witness. Therefore, defendant’s argument fails for the same reasons discussed above.

       Defendant also contends in his Standard 4 Brief that he was denied a fair trial due to
prosecutorial misconduct because the prosecutor’s purported collusion with Jones’s attorney
ultimately resulted in Jones’s not providing testimony during trial. We disagree.

         To preserve a claim of prosecutorial misconduct “for appellate review, a defendant must
have timely and specifically objected below, unless an objection could not have cured the error.”
People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Defendant did not preserve
this issue by raising an objection in the trial court based on prosecutorial misconduct.

        “Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights.” Id. To avoid forfeiture under the plain error rule, the defendant must
demonstrate that an error occurred; the error was plain, and the plain error affected substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third prong requires
a showing of prejudice, which occurs when the error affected the outcome of the lower court
proceedings.” People v Putman, 309 Mich App 240, 243; 870 NW2d 593 (2015).

       “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” Brown, 294 Mich App at 382. This Court considers claims of prosecutorial
misconduct on a case-by-case basis, and the prosecutor’s remarks must be considered in context.
People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). “Prosecutors are typically
afforded great latitude regarding their arguments and conduct at trial,” and may “argue the
evidence and all reasonable inferences from the evidence as it relates to their theory of the case.”
Unger, 278 Mich App at 236; People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).

       Defendant contends in his Standard 4 Brief that he was denied a fair trial due to
prosecutorial misconduct because the prosecutor’s purported collusion with Jones’s attorney
ultimately resulted in Jones’s not providing testimony during trial. Defendant’s contention fails.

       Essentially, defendant contends that but for the prosecutor’s decision to contact Jones’s
attorney regarding Jones’s testimony during defendant’s trial, Jones would have testified on
                                                -6-
defendant’s behalf. Defendant provides no legal authority in support of his position, other than
an assertion that it was “clear error” for the trial court to find that the prosecution had not
engaged in “subterfuge.” “An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627,
640-641; 588 NW2d 480 (1998). Consequently, we conclude that defendant has abandoned this
contention on appeal.

        Regardless, defendant’s contention has no merit. At the outset, it is important to note that
Jones testified under oath that no one asked him to lie in exchange for a reduced sentence.
Additionally, despite Jones’s decision to repeatedly insist to the trial court that he had to inform
the jury regarding the attempted collusion between his attorney and the prosecutor, the trial court
clearly stated that it would have permitted Jones to testify so long as his testimony did not reach
that specific topic. Yet it was not the prosecutor’s decision which prevented Jones from
testifying; it was defendant’s own trial counsel. Insofar as any error that defendant alleges here,
it once again appears to be the error of his own trial counsel in failing to call Jones as a witness.
And as discussed above, that contention has no merit.

        Alternately, defendant appears to contend that the prosecutor deliberately engaged in
“subterfuge” to undermine defendant’s defense strategy by initiating a conversation with Jones’s
attorney after defendant’s trial had begun. But as the prosecutor and Jones’s attorney explained
during trial, their discussion only pertained to a “potential offer” if Jones testified during
defendant’s trial. But, ultimately, Jones balked at his attorney’s overview of the potential offer,
and, as noted above, Jones admitted there was never any attempt to induce him to lie during
defendant’s trial. And finally, defendant has failed to demonstrate how the prosecutor
deliberately attempted to prevent Jones from testifying during defendant’s trial.

       We affirm.

                                                              /s/ Deborah A. Servitto
                                                              /s/ Jane E. Markey
                                                              /s/ Peter D. O'Connell




                                                -7-
