People v. Reese

• Decision Date: 21 July 2022
• Docket Number: 349738
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEONTEZ LAMAR REESE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DEONTEZ LAMAR REESE, Defendant-Appellant.

No. 349738

Court of Appeals of Michigan

July 21, 2022

UNPUBLISHED

Wayne Circuit Court LC No. 18-008812-01-FC

Before: LETICA, P.J., and K. F. KELLY and RIORDAN, JJ.

PER CURIAM

Defendant appeals by right his jury trial convictions of first-degree premeditated murder, felon in possession of a firearm (felon-in-possession), carrying a concealed weapon (CCW), carrying a weapon with unlawful intent, and three counts of possession of a firearm during the commission of a felony (felony-firearm), second offense. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arose after defendant shot and killed Maurice Campbell during the early evening hours of June 21, 2018, in Detroit, Michigan. On that evening, Campbell was parked in the parking lot of an apartment complex with his girlfriend, Lakeisha Hill. While it was still light outside, Hill witnessed defendant approaching the car in an aggressive manner. Hill, who had never seen defendant before, asked Campbell if he knew who was walking toward them. Campbell responded by identifying the man as "Tez." Defendant first approached Hill's passenger-side window before walking around the car to speak with Campbell. As Campbell and defendant began arguing, defendant also identified himself as "Tez." As the argument escalated, defendant drew a gun he was carrying in the waistband of his pants-concealed under his shirt-and fatally shot Campbell seven times. Hill was able to provide police with a description of the shooter and told them his name was "Tez."

Defendant ran out of the parking lot, down a side street, got in a white Dodge Charger, and drove away. Marshall Winbush, who lived nearby, saw defendant get in the car and drive away. Winbush noted the car was associated with someone who had family in the area, who Winbush

1

knew as "Ivan." Detective Jelani Dew of the Detroit Police Department found Ivan's profile on Facebook and discovered defendant was "friends" with Ivan. Because defendant fit Winbush's and Hill's physical descriptions of the shooter, the police had Hill participate in a photographic lineup. Hill immediately identified defendant's photograph as the person she saw shoot Campbell.

Before trial, the prosecution sought to admit other-acts evidence related to defendant under MRE 404(b)(1). This evidence centered on a video of a traffic stop of defendant driving a white Charger. The trial court overruled defendant's objection to the evidence on the grounds that it was unfairly prejudicial and admitted the evidence. During trial, the court denied defendant's attempts to introduce evidence that Campbell's brother was murdered before him, and evidence that Ivan had a friend named "All Hail AlmightyTezz" on Facebook. The trial court determined the evidence was irrelevant, and thus, inadmissible.

Defendant was convicted by a jury and was sentenced to life imprisonment without the possibility of parole for his first-degree premeditated murder conviction; three to five years' imprisonment for each of his felon-in-possession, CCW, and carrying a weapon with unlawful intent convictions; and five years' imprisonment for each of his felony-firearm convictions. After trial, defendant moved the trial court either to grant him a new trial or to hold a Ginther^[1] hearing regarding his claims of ineffective assistance of counsel. The trial court denied the motion, and this appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, defendant contends he was denied the effective assistance of counsel during trial, or, alternatively, that this Court should reverse the trial court's denial of his request for a Ginther hearing. We will address each argument in turn.

A. SUBSTANTIVE CLAIMS

Defendant argues his defense counsel rendered ineffective assistance during his trial because counsel failed to object to hearsay evidence, did not call alibi witnesses for defendant, and failed to object to improper vouching by the prosecution during closing argument. We disagree.

1. STANDARD OF REVIEW

"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008). "A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." Id. "Where, as here, there has been no evidentiary hearing on the issue below . . . our review is limited to errors apparent on the record." People v Seals, 285 Mich.App. 1, 19-20; 776 N.W.2d 314 (2009).

2. ANALYSIS

2

"Criminal defendants have a right to the effective assistance of counsel under the United States and Michigan Constitutions." People v Schrauben, 314 Mich.App. 181, 189-190; 886 N.W.2d 173 (2016), citing U.S. Const, Am VI; Const 1963, art 1, § 20. "However, effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." Schrauben, 314 Mich.App. at 190. "[T]o receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that 'counsel's representation fell below an objective standard of reasonableness' and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" People v Vaughn, 491 Mich. 642, 669; 821 N.W.2d 288 (2012), quoting Strickland v Washington, 466 U.S. 668, 688, 694; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). "When reviewing defense counsel's performance, the reviewing court must first objectively 'determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" People v Jackson (On Reconsideration), 313 Mich.App. 409, 431; 884 N.W.2d 297 (2015), quoting Strickland, 466 U.S. at 690. "Next, the defendant must show that trial counsel's deficient performance prejudiced his defense-in other words, that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Jackson, 313 Mich.App. at 431, quoting Vaughn, 491 Mich. at 669.

This Court will not find trial counsel to be ineffective where an objection would have been futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich.App. 450, 457; 678 N.W.2d 631 (2004); People v Rockey, 237 Mich.App. 74, 76-77; 601 N.W.2d 887 (1999). Trial counsel has "wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." People v Odom, 276 Mich.App. 407, 415; 740 N.W.2d 557 (2007). "The defendant 'bears the burden of demonstrating both deficient performance and prejudice[;] the defendant [also] necessarily bears the burden of establishing the factual predicate for his claim.'" People v Cooper, 309 Mich.App. 74, 80; 867 N.W.2d 452 (2015), quoting People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001) (alteration in Cooper).

Defendant first argues defense counsel was ineffective for failing to object to inadmissible hearsay evidence. Under the Michigan Rules of Evidence," '[h]earsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). "Hearsay evidence is inadmissible unless it falls within one of the exceptions listed in the Michigan Rules of Evidence." People v Solloway, 316 Mich.App. 174, 199; 891 N.W.2d 255 (2016).

Defendant specifically challenges the testimony made by Hill when she was describing the events leading up to Campbell's death. Hill stated she and Campbell had discussed a man named "Tez" on the night before the shooting and, on the day of the murder, Hill saw defendant approaching Campbell's vehicle in an aggressive manner. Hill asked Campbell if he knew the man approaching the car, to which Campbell apparently responded, "[t]hat's that n***a. That's, that n***a I was telling you about, Tez." Defendant now contends that defense counsel was ineffective for failing to object because the testimony was inadmissible hearsay.

As noted above, hearsay generally is inadmissible, but there are exceptions to the rule. Solloway, 316 Mich.App. at 199, citing MRE 802. "[A] present sense impression is defined under MRE 803(1) as '[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.'" People v Bowman,

3

254 Mich.App. 142, 145; 656 N.W.2d 835 (2002). There are three requirements for an out-of-court statement to be admissible as a present sense impression: "(1) the statement must provide an explanation or description of the perceived event, (2) the declarant must have personally perceived the event, and (3) the explanation or description must have been made at a time substantially contemporaneous with the event." People v Chelmicki, 305 Mich.App. 58, 63; 850 N.W.2d 612 (2014) (quotation marks and citation omitted). "The principle underlying this exclusion is that the substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation." People v Hendrickson, 459 Mich. 229, 235; 586 N.W.2d 906 (1998) (quotation marks and citation omitted).

Defense counsel did not render ineffective assistance with respect to these statements because any objection would have been futile, as Campbell's statements fall within the present sense impression exception to hearsay. See Thomas, 260 Mich.App. at 457. All three requirements are met with respect to Hill's testimony about Campbell's statement as he saw defendant walking toward the car.

First, the statement "provide[d] an explanation or description of...