People v. Alexander
| Decision Date | 12 August 2021 |
| Docket Number | 350816 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ISAAC ALEXANDER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 18-008418-01-FH
Before: Letica, P.J., and Servitto and M. J. Kelly, JJ.
Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82, obstructing a police officer, MCL 750.81d(1), felon in possession of a firearm (felon-in-possession), MCL 750.224f, domestic violence, MCL 750.81(2), and three counts of possession of a firearm during the commission of a felony, second offense, (felony-firearm) MCL 750.227b(1). The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 2 to 15 years' imprisonment for the felonious assault, obstructing a police officer, and felon-in-possession convictions; 30 days in jail, time served, for the domestic violence conviction; and five years' imprisonment for each felony-firearm conviction.
On appeal, defendant alleges that defense counsel failed to provide effective assistance of counsel, the jury instructions were deficient, the prosecutor engaged in misconduct, there was insufficient evidence to sustain his convictions, and that his sentences were disproportionate. We affirm.
During an evening out with another couple, defendant and his girlfriend, Starr Rivers, began arguing over a bracelet that Rivers found in defendant's vehicle that did not belong to her. In a lot adjacent to Rivers's home, the argument escalated into a physical altercation after Rivers threw water on defendant.
Several neighbors witnessed the altercation. Rivers and defendant were hitting each other, and defendant eventually wrestled Rivers to the ground where he continued to assault her while controlling her movement by grasping her hair. One neighbor yelled at defendant to stop and Rivers screamed. Dattahn Wade, an off-duty Detroit Police Officer, was visiting a nearby home and walked to the area where he heard Rivers and the neighbors yelling.
Rivers was licensed to carry a handgun, but defendant had control of her gun. Officer Wade heard Rivers crying and repeatedly screaming "you're going to shoot me." Officer Wade saw defendant pointing a gun at Rivers's head and yelling something at her. A neighbor, Larry Crane, Jr., also saw defendant pressing a gun to Rivers's head and stating he would kill her. Officer Wade identified himself, displayed his badge, and ordered defendant to drop the gun, but defendant continued to threaten Rivers. Officer Wade shot defendant twice.
According to Officer Wade, the gun flew into the air. Crane, however heard defendant ask why the officer had shot him as he did not have a gun. Claude Johnson, who was with defendant and Rivers that night, also heard defendant ask why the officer shot him. Johnson testified that he did not see defendant with a gun to Rivers's head before Officer Wade shot defendant, that both defendant and Rivers were standing before Officer Wade shot defendant, and that defendant had his hands up in the air in response to Officer Wade's command that he drop the weapon.
Rivers confronted Officer Wade before leaving the scene to drive defendant to the hospital. Multiple calls to 911 regarding the incident brought additional police officers to the area. During her 911 call after the shooting, Williams reported that "this guy was jumping on . . . this girl, and a guy that's a police officer told him to stop and he didn't stop." In his 911 call, Officer Wade initially reported that defendant had left the scene and had "the pistol that he used in this incident" on him. During the call, however, it appears the gun was located and Officer Wade states it was "exactly where he threw it."
The police arrived and recovered the gun and two shell casings that came from Officer Wade's weapon. A forensic biologist, who analyzed Rivers's firearm, located a DNA mixture on it. Due to the small amount of DNA, the expert explained her result was "uninformative" as it was just twenty times more likely than not that defendant's DNA along with that of another individual was on the gun rather that the DNA of two unrelated individuals.
Defendant argues that defense counsel failed to provide effective assistance because counsel did not call Rivers as a witness, advised defendant not to testify, had a conflict of interest, and wrongly stipulated that defendant was ineligible to possess a firearm.[1] We disagree.
Although defendant filed a motion for remand, this Court denied his request "without prejudice to a case call panel . . . determining that remand is necessary . . . ." People v Alexander, unpublished order of the Court of Appeals, entered October 7, 2020 (Docket No. 350816).[2] When there has been no evidentiary hearing to develop a claim of ineffective assistance of counsel, our review is limited to errors apparent from the record. People v Unger, 278 Mich.App. 210, 253; 749 N.W.2d 272 (2008). Whether an attorney provided ineffective assistance is a mixed question of law and fact. Id. at 242. Issues of constitutional law are reviewed de novo, while questions of fact are reviewed for clear error. Id.
A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. U.S. Const, Am VI; Const 1963, art 1, § 20. "An accused's right to counsel encompasses the right to the 'effective' assistance of counsel." People v Cline, 276 Mich.App. 634, 637; 741 N.W.2d 563 (2007). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Rodgers, 248 Mich.App. 702, 714; 645 N.W.2d 294 (2001). In order to prevail on such a claim, a defendant must show (1) "that counsel's performance was deficient," and (2) "that counsel's deficient performance prejudiced the defense." People v Taylor, 275 Mich.App. 177, 186; 737 N.W.2d 790 (2007) (quotation marks and citation omitted). Defense counsel's performance is deficient if "it fell below an objective standard of professional reasonableness, and [deemed prejudicial if] . . . it is reasonably probable that, but for counsel's ineffective assistance, the result of the proceeding would have been different." People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007).
Defendant argues that defense counsel's performance was deficient because he failed to call Rivers as a witness. Rivers submitted an affidavit stating that she was aggressive in trying to fight defendant, that defendant disarmed her but did not point a weapon at her, that defendant never held a gun to her head or threatened to kill her, and that defendant was standing with his hands in the air when the police officer shot him.[3] Rivers further stated that defense counsel issued a subpoena to her, informed her that she was not needed as a witness, and, if he decided to use her, he would call her. He never called.
Defendant submitted an affidavit, averring that he asked defense counsel to call Rivers as a witness. But counsel decided that Rivers's testimony was not needed because Johnson testified that defendant's hands were raised when the officer shot.
The record reflects that although Rivers was included on the prosecution's initial witness list, she was not designated as a trial witness on the prosecution's amended witness list. At trial, in defendant's presence, defense counsel mentioned that the prosecution was not going to call Rivers to testify and that defense counsel had no witnesses to present. After the prosecution rested, defense counsel reiterated that he had no witnesses, and, later, defense counsel rested without presenting witnesses.
" '[D]ecisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy,' which we will not second-guess with the benefit of hindsight." People v Dixon, 263 Mich.App. 393, 398; 688 N.W.2d 308 (2004), quoting People v Rockey, 237 Mich.App. 74, 76; 601 N.W.2d 887 (1999). A claim of ineffective assistance of counsel premised on the failure to call a witness is analyzed under the same standard as all other ineffective-assistance-of-counsel claims. People v Jurewicz, 506 Mich. 914, 914; 948 N.W.2d 448 (2020).
In this case, Rivers's proposed testimony could have contradicted the testimony of Officer Wade and Crane, and helped defendant with his defense for felonious assault. Rivers's proposed testimony mirrored Johnson's testimony that he did not see defendant point a gun at Rivers and that defendant's hands were raised when Officer Wade shot.[4] But, in contrast to Johnson, Rivers would have placed her gun in defendant's hand, potentially incriminating him with regard to the felon-in-possession and felony-firearm charges. Further, if called to testify, Rivers would have been cross-examined about the day's events and her tumultuous relationship with defendant.[5]Finally, had Rivers testified, defense counsel could not have argued that Rivers's absence created a reasonable doubt that defendant was guilty.[6]
Review of the record establishes that defense counsel made an intentional, strategic decision not to call Rivers and to proceed with Johnson. That counsel's strategy failed "does not constitute deficient performance." People v Petri, 279 Mich.App. 407, 412; 760 N.W.2d 882 (2008). Because defendant has failed to show that defense counsel's decision not to call Rivers as a witness was not borne from sound trial strategy, he is not entitled to relief.
Defendant argues that defense counsel provided ineffective assistance for advising him to not testify.
...
To continue reading
Request your trial