                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 12, 2017
                 Plaintiff-Appellee,

v                                                                    No. 333345
                                                                     Wayne Circuit Court
DAVID BRIAN GRIFFIN,                                                 LC No. 15-009612-01-FC

                 Defendant-Appellant.


Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree premeditated
murder, MCL 750.136(1)(a), assault with intent to commit murder, MCL 750.83, felon in
possession of a firearm (felon-in-possession), MCL 750.224f(1), and possession of a firearm in
the commission of a felony (felony-firearm), MCL 750.227b(1). Defendant was sentenced to life
imprisonment without the possibility of parole for the first-degree premediated murder
conviction, 25 to 50 years’ imprisonment for the assault with intent to commit murder
conviction, two to five years’ imprisonment for the felon-in-possession conviction, and two
years’ imprisonment for the felony-firearm conviction.1 We affirm.

        Defendant was implicated in two shootings that took place on October 21, 2015. The
first shooting occurred at approximately 9 p.m. at defendant’s home, located at 19155
Westphalia Street in Detroit, Michigan. The victim in that shooting, Michael Wilson, was shot
twice in the abdomen, and succumbed to his injures. The second shooting occurred shortly after
at a coney island restaurant a few blocks away on Seven Mile Road in Detroit, Michigan. The
victim in that shooting, Aaron Varner, was shot in the right shoulder, and survived. On appeal,
defendant cites three instances where he claims that he did not receive effective assistance of
counsel at trial, none of which we find to be persuasive. Each is addressed in turn.

       “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016) (citation omitted). “Generally, a trial court’s findings of fact, if any, are reviewed for


1
    This case was consolidated with Case No. 15-009490-01-FC in the trial court.


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clear error, and questions of law are reviewed de novo.” Id. at 188 (citations omitted). In the
trial court, defendant did not move for a new trial on the basis of ineffective assistance of counsel
or request a Ginther2 hearing. 3 Where “no factual record was created with respect to defendant’s
claim, . . . this Court’s review is limited to mistakes apparent on the lower court record.” Id.
(citation and footnote omitted).

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012) (citation
omitted). When alleging ineffective assistance of counsel, it is defendant’s burden to prove “(1)
counsel’s performance was deficient, meaning that it fell below an objective standard of
reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome
of the defendant’s trial could have been different.” Solloway, 316 Mich App at 188 (citations
omitted). “[D]efendant 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).

       First, defendant argues that trial counsel was ineffective for failing to move to sever the
charges relating to the Westphalia Street shooting from the charges relating to the coney island
shooting. Defendant contends that the Westphalia Street shooting and the coney island shooting
were separate incidents that should have been tried before two different juries. We disagree.

        Briefly, we address defendant’s claim that the prosecution did not move to join the two
cases, but simply charged them in the same felony information. This is incorrect. The
prosecution filed a motion seeking to consolidate the two cases, and during a final conference on
April 6, 2016, trial counsel indicated that she had no objection to the two cases being
consolidated and the trial court granted the motion. Accordingly, the record confirms that the
cases were consolidated following the prosecution’s motion. Therefore, the portion of
defendant’s argument suggesting the prosecution merely charged both incidents in the same
information is without merit. Defendant’s argument that trial counsel should have moved to
sever the charges is likewise unpersuasive. MCR 6.120(B) provides that upon a motion from
either party, or “[o]n its own initiative,” the trial court may join “offenses charged in two or more
informations . . . against a single defendant . . . when appropriate to promote fairness to the
parties and a fair determination of the defendant’s guilt or innocence of each offense.” MCR
6.120(B)(1) goes on to state, in pertinent part:

         (1) Joinder is appropriate if the offenses are related. For the purposes of this rule,
         offenses are related if they are based on

         (a) the same conduct or transaction, or

         (b) a series of connected acts, or



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 This Court denied defendant’s motion seeking remand for a Ginther hearing. People v Griffin,
unpublished order of the Court of Appeals, entered November 16, 2016 (Docket No. 333345).


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       (c) a series of acts constituting parts of a single scheme or plan.

Conversely, under MCR 6.120(C), on motion by the defendant, a trial court “must sever for
separate trials” charges that are unrelated, based upon the definition of “related” provided in
MCR 6.120(B)(1).

        We agree with the trial court’s decision to try these cases together,4 and conclude that
severance was not required because the Westphalia Street shooting and the coney island shooting
were related as contemplated by the court rule. We first note that the two shootings were
contemporaneous, occurring within a short time period and only a few blocks away from each
other. Further, Nicole Stone, who had spent time with both Varner and Wilson earlier in the day,
and was at the coney island when Varner was shot, testified that defendant, Varner, and Wilson
all knew each other, and that an issue of contention between the three men had been brewing.
Varner confirmed that he had been friends with Wilson and defendant for some time. Varner’s
testimony that he did not want to go to Westphalia Street because he did not want to meet with a
man named “Unc,” despite receiving multiple phone calls from defendant asking him to come to
Westphalia Street before both shootings, supported Stone’s assertion that there was a contentious
issue pending between the three men. Further, Detroit Police Officer Nicholas Dedeluk, who
responded to the coney island shooting, testified that the area in which these two shootings took
place is known as a “red area,” meaning gang activity and violence is highly prevalent. Detroit
Police Officer David Gibson elaborated, testifying that the Gang Intelligence Unit had actually
raided defendant’s home a few days before the shootings. Defendant’s next door neighbor on
Westphalia Street also testified that he heard a male voice yelling to “stop[,]” and to “[t]ell him
what he wants to know,” or “tell him what he wants to hear,” around the time of the shooting.
Therefore, we are satisfied that the trial court correctly concluded consolidation was appropriate
in these cases where the two shootings were part of “the same conduct or transaction,” or were
otherwise related as “a series of connected acts[.]” MCR 6.120(B)(1)(a), (b). Thus, we are not
persuaded that trial counsel’s performance “fell below an objective standard of
reasonableness[.]” Solloway, 316 Mich App at 188 (citations omitted). Trial counsel’s decision
to not mount a futile objection will not support a claim of ineffective assistance of counsel.
People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).

        Additionally, defendant cannot demonstrate that the outcome of the proceedings would
have been different if the two cases were not joined. Salloway, 316 Mich App at 188.
Defendant argues that given the opportunity, he would have pleaded guilty to the coney island
shooting, which would have prevented evidence of that shooting from being admitted in a trial
solely dealing with the Westphalia Street shooting. Defendant argues that without evidence of
the coney island shooting, the jury could not have found him guilty beyond a reasonable doubt
because there would be no evidence to suggest that the crimes were related, especially in the face
of conflicting witness testimony and the failure of the prosecution to present a motive for the
Westphalia Street shooting. However, this argument is also without merit. Even if the cases had



4
 This Court reviews for an abuse of discretion a trial court’s determination regarding whether to
consolidate cases. People v Duranseau, 221 Mich App 204, 208; 561 NW2d 111 (1997).


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been severed, there was ample evidence implicating defendant as the shooter in the Westphalia
shooting introduced at trial. Specifically, defendant’s next door neighbor heard defendant’s
voice during the shooting, his friend Terrance Allen identified him as letting off a round of
bullets when Wilson approached defendant’s home, another neighbor saw defendant walking
away from the shooting, and spent shell casings found at the scene of the Westphalia Street
shooting were fired from a 9 mm semi-automatic handgun that had defendant’s DNA on the
trigger guard.

        Next, defendant argues that trial counsel’s failure to present evidence of defendant’s
vision problems precluded defendant from presenting a substantial defense at trial with respect to
the Westphalia Street shooting. 5 Specifically, defendant contends that had trial counsel
presented evidence of his visual impairment, it would have established that defendant was unable
to aim and shoot a gun at Wilson. We disagree.

        “Decisions regarding what evidence to present . . . are presumed to be matters of trial
strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999) (citation omitted).
“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) (citation omitted).

        Defendant is simply unable to demonstrate that trial counsel’s performance fell below an
objective standard of reasonableness where trial counsel obviously exercised trial strategy in
presenting another, more persuasive, defense. Solloway, 316 Mich App at 188. Notably,
defendant’s uncle testified that at the time of the shooting, defendant was absent from the
Westphalia address because he was still at the liquor store, and therefore could not have shot
Wilson. Accordingly, we are not persuaded that trial counsel’s decision to employ this theory of
defense, and to not pursue the issue of defendant’s visual impairment, fell in any manner below
an objective standard of reasonableness. Id.

       Finally, defendant argues that he was denied the effective assistance of counsel when trial
counsel failed to object to the prosecution’s “mischaracterization” of evidence during closing
argument. Again, we disagree.

        At trial, Rebecca Smith, who works for the Michigan State Police in the Metro Detroit
Firearm and Tool Marks division, testified that she received for analysis from the Detroit Police
Department the 9 mm semi-automatic handgun recovered from the coney island, as well as six 9
mm Lugar caliber fired shell cartridges and a fired bullet. Smith first determined the handgun
was operational, and then compared the shell cartridges recovered from Westphalia Street and
the coney island to the cartridges from the test shots she had conducted on the handgun. Smith
concluded that all of the cartridges “were identified as having been fired from” the same firearm,
specifically, the 9 mm semi-automatic handgun recovered from the coney island. Smith could
not determine whether the fired bullet recovered from Westphalia Street had been shot from that


5
  We observe that defendant has not presented medical evidence to this Court of his vision
impairment as stated in his brief on appeal.


                                               -4-
same handgun because there were not enough tool marks left on the bullet to allow for a solid
identification.

        We have closely reviewed the prosecution’s closing argument, and disagree with
defendant’s contention that the prosecution mischaracterized Smith’s trial testimony. The
prosecution did correctly state, consistent with Smith’s testimony, that all of the spent cartridge
casings were determined to have been fired from the same 9 mm semi-automatic handgun
recovered from the coney island shooting. Therefore, any objection by trial counsel to the
prosecution’s closing statement would have been futile, and declining to advance a futile
objection does not constitute ineffective assistance of counsel. Putman, 309 Mich App at 245.
Further, the trial court’s instruction to the jury that the attorneys’ statements were not evidence
alleviated any potential prejudice to defendant, and we presume that the jury followed its
instructions. See, e.g., People v Fyda, 288 Mich App 446, 465; 793 NW2d 712 (2010)
(observing that (1) any alleged error on the part of the prosecution during closing argument was
remedied where the trial court instructed the jury that “the lawyers’ statements were not
evidence[,]” and (2) the jury is presumed to follow its instructions). Accordingly, defendant’s
claims of ineffective assistance of counsel are without merit.6

       Affirmed.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Brock A. Swartzle




6
 To the extent that defendant claims in his brief on appeal that remand to the trial court for an
evidentiary hearing is necessary for us to consider his claims of ineffective assistance of counsel,
we conclude that no further “development of a factual record is required for appellate
consideration of the issue.” MCR 7.211(C)(1)(a)(ii).


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