People of Michigan v. Troy Antonio Brown

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 18, 2018
Plaintiff-Appellee,

v No. 336058
Macomb Circuit Court
TROY ANTONIO BROWN, LC No. 2015-002617-FC

Defendant-Appellant.

Before: O’BRIEN, P.J., and K.F. KELLY and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(a) (penetration involving a victim under 13 years of age),
for which he was sentenced to 25 to 60 years’ imprisonment. We affirm.

I. PROSECUTORIAL MISCONDUCT

A. QUESTIONING CONCERNING RELIGIOUS BELIEFS

On appeal, defendant makes several allegations of misconduct on the part of the
prosecution, the majority of which were not preserved for appellate review.1 As an initial matter,
defendant contends that the prosecution committed error requiring reversal by questioning one of
the witnesses at trial concerning defendant’s religious beliefs. We disagree.

“Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed
de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279
Mich App 116, 134; 755 NW2d 664 (2008). “Clear error exists where the reviewing court is left
with a definite and firm conviction that a mistake has been made.” People v Callon, 256 Mich

1
Aside from an objection to one of the witnesses commenting on the credibility of the victim,
the allegations of prosecutorial misconduct were not preserved for appellate review. “[T]o
preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and
request a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d 627
(2010).

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App 312, 321; 662 NW2d 501 (2003). As a general rule, however, unpreserved claims of
prosecutorial error are reviewed under the plain-error standard. People v Unger, 278 Mich App
210, 235; 749 NW2d 272 (2008).

MCL 600.1436 provides, in pertinent part, “No witness may be questioned in relation to
his opinions on religion, either before or after he is sworn.” “Const 1963, art 1, § 18 explicitly
rejects the common-law requirement that belief in a Supreme Being is a prerequisite to
testifying.” People v Bouchee, 400 Mich 253, 264; 253 NW2d 626 (1977). Likewise, MRE 610
provides that “[e]vidence of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the witness’ credibility is
impaired or enhanced.” In People v Jones, 82 Mich App 510, 516; 267 NW2d 433 (1978), this
Court discussed the purpose of MCL 600.1436, explaining that:

[t]he statute expressly states that questions as to religious opinions are not
permissible. The purpose of the statute is to strictly avoid any possibility that
jurors will be prejudiced against a certain witness because of personal
disagreement with the religious views of that witness. This object recognizes the
deep personal feelings many people hold on religion, feelings that may
unavoidably conflict with a juror’s sworn duty to decide solely on the evidence
presented, without injection of personal prejudices.

Hence, “[a] prosecutor may not inquire about the religious beliefs of a witness, or about those
beliefs’ effect on truthfulness.” People v Dobek, 274 Mich App 58, 72; 732 NW2d 546 (2007).
“Likewise, questioning a witness to explore another individual’s religious opinions and beliefs is
equally offensive.” People v Leonard, 224 Mich App 569, 594-595; 569 NW2d 663 (1997),
citing Bouchee, 400 Mich at 264.

After his arrest in this case, defendant was interrogated by the police. At trial, the two
interrogating officers, one of whom was Sergeant Robert Eidt, described defendant’s
interrogation to the jury at considerable length. While questioning Sergeant Eidt on that subject
during direct examination, the prosecution posed the following questions:

Q. All right. Did you ever discuss the topic of religion with [defendant]?

A. Yes, I did.

Q. What was discussed?

A. I asked [defendant] if he believed in God and I asked him what he felt
should happen to himself, or how would God view himself after this whole
process played out.

Q. And what was his response?

A. I don’t remember exactly word for word.

Q. Would your, would the report refresh your recollection as to that?

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 A. Yes, it would.

* * *

Q. Okay. Now that your memory is refreshed, what did he say about how
he thought God might feel about this?

A. He said he didn’t know.

On cross-examination, defense counsel also discussed defendant’s religious views with Sergeant
Eidt:

Q. And you brought up religion. Did you discuss judgment day on two
different occasions, use that terminology, judgment day?

A. Might have.

Q. Okay. And when you brought up religion, you brought up God, you
brought up hell and heaven and judgment day, [defendant] still never said he did
anything wrong, correct?

A. Correct.

Q. And in fact didn’t you tell him that, well, if this little girl’s lying then
she’s going to go to hell, twice did you say that?

A. Yes.

Q. And that still never triggered any kind of confession or admission from
[defendant], correct?

A. Correct.

During redirect examination, the prosecution revisited the same subject, asking, “[Defendant]
doesn’t know how God would feel about it?”, and Sergeant Eidt replied, “Correct.” In yet
another redirect question, the prosecution broached the subject one final time, asking almost the
same question and eliciting the same response. Defendant did not object to the line of
questioning or request a curative instruction.

In Dobek, during direct examination by defense counsel, the defendant, charged with
several criminal sexual conduct offenses, shared that his children and wife are Catholic, and that
the children attended the Catholic church. Dobek, 274 Mich App at 61, 73. During cross-
examination, the prosecution inquired of the defendant if he himself was a practicing Catholic,
and whether he was a member of the Catholic church in the 1990s, and the defendant answered
that he was. Id. When the prosecution continued the line of questioning, inquiring of the
defendant whether his alleged behavior was consistent with “the tenets of the Catholic faith[,]”
defense counsel objected before the defendant answered and the trial court ruled that the
prosecution could not proceed with the line of questioning. Id. After distinguishing the facts of

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Dobek from the Michigan Supreme Court’s decisions in People v Hall, 391 Mich 175; 215
NW2d 166 (1974); People v Burton, 401 Mich 415; 258 NW2d 58 (1977) and Bouchee, 400
Mich at 253, this Court observed that while the prosecution was apparently acting in good faith
where defendant injected the issue of religion into the trial, Michigan caselaw did “not support
the road down which the prosecutor was heading.” Dobek, 274 Mich App at 73-75. However,
where the trial court “swiftly and commendably” ceased the impermissible line of questioning,
this Court held that the defendant was not denied a fair and impartial trial and that reversal was
unnecessary. Id. at 75. Notably, this Court recognized that while the prosecution’s proposed
line of questioning was inappropriate, reversal was not warranted particularly where “the content
or substance of [the] defendant’s Catholic beliefs was never explored[.]” Id. at 75-76.

Similarly, in Leonard, the defendant raised a claim of ineffective assistance of counsel,
alleging that trial counsel’s performance was deficient when he did not object to a line of
questioning regarding the defendant being a Muslim. Leonard, 224 Mich App at 594. During
trial, the prosecution had inquired of a witness about “his familiarity with [the] defendant’s home
and family” and the witness divulged that the defendant’s family “wore ‘Muslim or traditional
African dress.’” Id. The witness testified that the defendant did not in fact “profess that he was
of the Muslim faith.” Id. Recognizing that “[q]uestioning a witness with regard to the subject of
religious beliefs or opinion is forbidden during a criminal proceeding[,]” contravening MRE 610
and MCL 600.1436, this Court also observed that “to explore another individual’s religious
opinions and beliefs is equally offensive.” Id. at 594-595. While the prosecution’s line of
questioning in Leonard was “arguably improper,” the Leonard Court concluded that error
requiring reversal did not occur “because the testimony elicited did not reveal [the] defendant’s
opinion or belief regarding the subject of religion.” Id. at 595. See also People v Calloway (On
Remand), 180 Mich App 295, 297, 298; 446 NW2d 870 (1989) (where a witness at trial
answered in the affirmative when asked by the prosecution if she was “a religious person[,]” and
also shared that she attended the same church for nine years, the case was factually
distinguishable from Hall and error requiring reversal did not occur where (1) the prosecution
was not inquiring with respect to her “opinions on the subject of religion[,]” and (2) the
questions were relevant to the witness’s activities at the time of the alleged crime).

The instant case presents facts similar to Dobek and Leonard, in that the prosecution’s
questioning of Sergeant Eidt did not lead to the content and substance of defendant’s religious
beliefs, or his opinions on the subject of religion, being examined and explored in front of the
jury. Dobek, 274 Mich App at 75-76; Leonard, 224 Mich App at 595. The facts of this case are
therefore entirely distinguishable from Hall, where in that case the prosecution initiated its
inquiry into the defendant’s religious beliefs by asking if the defendant believed in a “Supreme
Being” and continued to insinuate to the jury “that the veracity of [the] defendant’s testimony
was somehow correlated to the strength and conviction of [the] defendant’s beliefs.” Hall, 391
Mich at 180-181. Put simply, the present facts are not such that it can be said with confidence
that defendant’s “religious opinions [were] put in front of the judge or jury for their
consideration.” Id. at 182. While the trial court in this case did not intercede when the
prosecution pursued the line of questioning defendant now challenges on appeal, the impact is
the same as what occurred in Burton, as evidence was not adduced concerning the substance of
defendant’s religious beliefs and opinions, and consequently there is no “prejudicial impact”
arising from the prosecution’s questioning of Sergeant Eidt. Burton, 401 Mich at 418. Where
the present circumstances certainly do not present a scenario where “the nature, substance and

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content of [defendant’s] religious beliefs” were canvassed before the jury, Bouchee, 400 Mich at
262, we are not persuaded that any error, particularly error necessitating reversal, occurred.2

B. STATEMENT ABOUT THE “TRUTH” BEING SOMEWHERE IN THE MIDDLE

Defendant also contends that the prosecution committed intentional misconduct by using
Sergeant Eidt’s false testimony to secure defendant’s conviction and by failing to correct that
false testimony. We disagree.

As the Michigan Supreme Court explained in People v Smith, 498 Mich 466, 475; 870
NW2d 299 (2015):

It is inconsistent with due process when the prosecution allows false testimony
from a state’s witness to stand uncorrected. It is well established that a State may
not knowingly use false evidence, including false testimony, to obtain a tainted
conviction[.] Indeed, the prosecution has an affirmative duty to correct false
testimony . . . . The responsibility does not cease to apply merely because the
false testimony goes only to the credibility of the witness. Nor is the
blameworthiness of the prosecutor relevant. Rather, while not every contradiction
is material and the prosecutor need not correct every instance of mistaken or
inaccurate testimony, it is the effect of a prosecutor’s failure to correct false
testimony that is the crucial inquiry for due process purposes. [Quotations marks
and citations omitted.]

Even accepting defendant’s contention that it should have been obvious to the
prosecution that Sergeant Eidt’s testimony on direct examination had been inaccurate or
substantially misleading, we are not persuaded that reversal is necessary. Reversal is only
warranted if “there is a reasonable likelihood that the false impression resulting from the
prosecutor’s exploitation of the testimony affected the judgment of the jury.” Smith, 498 Mich at
483. On this record, we are not persuaded that Sergeant Eidt’s testimony affected the judgment
of the jury, primarily where Eidt himself candidly admitted during cross-examination that his
testimony might have been incorrect. Moreover, having reviewed the video itself, it is apparent
that defendant made a non-verbal response to the challenged statement about the truth being
somewhere in the middle, nodding his head in a discernable affirmative reply. Thus, even if that
particular portion of the video would have been shown to the jury to correct Sergeant Eidt’s
testimony, or assuming that Sergeant Eidt had instead been permitted to refresh his recollection
by watching the video, the jury would have learned that although defendant did not orally state
that the truth was somewhere in the middle, he did indeed nod in assent when it was said. Under
such circumstances, we are not persuaded that any alleged error on the part of the prosecution
affected the judgment of the jury. Smith, 498 Mich at 483.

2
Given our disposition of this issue, we need not reach the question whether Hall mandates
automatic reversal in this case. See, e.g, Nashal v Freemont Ins Co, ___ Mich App ___, ___;
___ NW2d ___ (2018) (Docket Nos. 336234; 336919); slip op at 9-10.

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 C. EVIDENTIARY ISSUES

Defendant next contends that the prosecution committed error requiring reversal by
questioning Heather Solomon on direct examination about whether her interview with the victim
was “consistent with the allegations” against defendant or the “alternative hypothesis” that the
victim was “attention seeking” or had possibly identified the incorrect suspect. At the most
fundamental level, however, that argument is fatally flawed. “A finding of prosecutorial
misconduct may not be based on a prosecutor’s good-faith effort to admit evidence.” Dobek,
274 Mich App at 75. And as a matter of law, the prosecution cannot be found to have acted in
bad faith by introducing evidence that the trial court ruled admissible. See id. at 80 (“While
there may be issues regarding whether this was improper other-acts evidence, we cannot
conclude that the prosecutor proceeded in bad faith, given that the trial court permitted the
questioning and testimony.”).

Next, defendant challenges the prosecution’s decision to elicit testimony regarding
defendant’s status of being unemployed. On direct examination, defendant’s girlfriend/fiancée,
Ashley Merriweather, testified that defendant was “a great father” to their two children. The
prosecution sought to rebut such testimony on cross-examination, contrasting the victim’s older
brother with the jobless defendant and asking Merriweather whether she had previously
expressed her dissatisfaction with defendant “because he didn’t do anything, work wise[.]”
Defendant objected on grounds of relevance, and the trial court decided that the testimony was
“marginally relevant,” holding that it would permit a “limited inquiry into this area.” Again, as a
matter of law, the prosecution cannot be said to have acted in bad faith by introducing evidence
that the trial court expressly ruled admissible. See id. Therefore, defendant’s instant claim of
prosecutorial error warrants no relief.

Defendant also argues that the prosecution committed misconduct where it adduced
evidence regarding the belief of the police officers that questioned defendant concerning whether
defendant was telling the truth. On direct examination, the prosecution elicited testimony that
both Detective Twardesky and Sergeant Eidt believed, for a variety of reasons, that defendant
had been untruthful with them during his interrogation. The first time that the prosecution did
so, the defense objected, arguing that the prosecution was attempting to classify Detective
Twardesky “as an expert in classifying who’s a sex offender and who isn’t.” The prosecution
responded by arguing that the question was relevant to explain Twardesky’s “state of mind” and
why he continued the interrogation despite defendant’s denials. The trial court held that the
response would be admitted for that purpose but was inadmissible “as to ultimate opinion[.]”
Defense counsel did not renew the objection when Sergeant Eidt subsequently offered similar
testimony on direct examination. Defendant posits that the prosecution committed error
requiring reversal by introducing such opinion testimony about defendant’s truthfulness during
his interrogation. Once again, because the trial court held that such evidence was admissible for
the limited purpose of showing why the police decided to continue the interrogation, the
prosecution cannot be held to have acted in bad faith by admitting it. See id.

In his Standard 4 brief, defendant contends that the prosecution committed error requiring
reversal by introducing false testimony from Detective John Newman, in which he
mischaracterized one of defendant’s jailhouse telephone calls with Merriweather, suggesting that
defendant tacitly admitted that he had sexually abused the victim. Defendant contends that the

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prosecution knowingly capitalized on such false testimony to secure a conviction. For several
reasons, we are unpersuaded. First, defendant has not shown that Detective Newman’s
challenged testimony was either false or materially misleading. Detective Newman offered an
opinion concerning what he believed to be the subtext of the jailhouse calls. After reviewing the
two conversations in question, we discern no basis to conclude that Detective Newman’s
testimony was false. On the contrary, his opinion about the subtext of the conversations is
plausible, particularly in light of (1) the fact that the jail’s automated system warns the call’s
participants that it is subject to monitoring, and (2) Detective Newman’s observation that in
roughly 50 recorded telephone calls between defendant and Merriweather, defendant never once
denied having sexually assaulted the victim. In the conversation at issue here, defendant states
that he was “in here,” i.e., jail, because he had “made mistakes” and “done so much dumb s**t.”3
Moreover, it is altogether reasonable to assume that prisoners, who are aware that their phone
calls are being recorded, may speak about inculpatory events in a veiled, intentionally obscure
manner. The fact that defendant disagrees with Detective Newman’s opinion concerning the
subtext of the jailhouse telephone calls does not serve as proof that that opinion was
disingenuous.

Second, even assuming that Detective Newman did intentionally mischaracterize
defendant’s conversation with Merriweather, defendant has failed to demonstrate that the
prosecution was aware of that fact or that it should have been obvious. Finally, on direct
examination, defendant explained his version of what the jailhouse calls were about, as did
Merriweather. Both claimed that the conversation had nothing to do with the victim and instead
regarded one of Santana Rowland’s friends, with whom defendant had been unfaithful to
Merriweather. Under such circumstances, defendant has failed to demonstrate that Detective
Newman’s testimony about the jailhouse telephone calls might have seriously affected the
fairness of the trial.

D. VOUCHING FOR THE VICTIM’S CREDIBILITY

At closing, the prosecution argued at considerable length that the jury should credit the
victim’s testimony while rejecting defendant’s testimony. Defendant asserts that such argument
constituted improper vouching for the victim’s credibility. We disagree.

It is true that, as a general rule, the prosecution is prohibited from vouching for a
witness’s credibility by suggesting that the prosecutor “has some special knowledge” regarding
that witness’s truthfulness. People v Jackson, 313 Mich App 409, 426; 884 NW2d 297 (2015)
(quotation marks and citation omitted). However, “a prosecutor may comment on his own
witnesses’ credibility during closing argument, especially when there is conflicting evidence and
the question of the defendant’s guilt depends on which witnesses the jury believes.” People v
Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004).

3
Defendant and Merriweather testified that those references to “mistakes” and “dumb s**t”
referred to an affair defendant had had with another woman.

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 In this case, in which the credibility of the victim and defendant were of paramount
importance, the prosecution’s comments about the victim’s credibility were not plainly
erroneous. Rather, viewed in context, those comments were properly based on reasonable
inferences from record evidence, and they did not suggest that the prosecutor had any “special
knowledge”—i.e., any knowledge gleaned from sources other than what had been presented to
the jury at trial—that the victim had testified truthfully.

E. APPEALING TO THE SYMPATHY OF THE JURY

Defendant next argues that the prosecution committed error requiring reversal by
appealing to the jury’s sympathy for the victim during closing arguments. We are unpersuaded.
During opening statements, it was defense counsel—not the prosecution—who first mentioned
that the victim had “had a tough childhood,” “a tough go,” and that the jury might well be
inclined to “feel sorry for her[.]” Thus, defendant’s instant claim of error should be rejected.
Defendant cannot contribute to an alleged error at trial, and then assert it a ground for reversal on
appeal. See People v Jordan, 275 Mich App 659, 666; 739 NW2d 706 (2007). See also People
v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010) (noting that it is axiomatic that “a party
may not harbor error at trial and then use that error as an appellate parachute”). In other words,
the defense should not be permitted to explicitly note that the victim is sympathetic during
opening statements, then complain on appeal that the prosecution erred by echoing that same
sentiment.

In any event, even if the prosecution’s remarks concerning sympathetic characteristics of
the victim were improper, they do not entitle defendant to reversal here because he has failed to
demonstrate any prejudice resulting from those comments. The trial court properly instructed the
jury that its verdict could be based only on the “the evidence that ha[d] been properly admitted,”
further instructing them that the attorneys’ “statements and arguments . . . are not evidence.”
“Jurors are presumed to follow their instructions, and it is presumed that instructions cure most
errors.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). Defendant has not
offered any evidence to overcome that presumption in this instance; indeed, he does not even
argue the point. Hence, he has failed to carry his burden of persuasion under the plain-error test,
and he is unentitled to appellate relief.

F. ASKING WITNESSES TO COMMENT ON THE CREDIBILITY OF OTHER
WITNESSES

Defendant asserts that he is entitled to reversal because the prosecution erred by asking
both defendant and Merriweather to comment on the credibility of several prosecution witnesses,
including the victim. Even accepting defendant’s contention that this was improper, if the jury is
instructed that it alone is charged with determining the facts of the case, including which
witness’s testimony to believe, the defendant cannot prevail on such a claim of error under plain-
error review. People v Gaines, 306 Mich App 289, 308; 856 NW2d 222 (2014). In this case, the
jury received essentially the same instructions as did the jury in Gaines; to wit, it was instructed
that the jurors were “the only judges of the facts” and were obliged to “decide which witnesses
[they] believe[d] and how important . . . their testimony [wa]s.” Therefore, as in Gaines, here
“defendant cannot establish that the prosecutor’s questions affected his substantial rights.” See
id.

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 G. IMPEACHMENT OF DEFENDANT

On direct examination, when asked why he agreed to meet the victim’s brother at the
hospital, defendant replied: “Because I wanted to, you know, give them my DNA or whatever
the situation, I wanted to, like I say clear myself from the allegations. You know, I never been
charged with nothing like this before, ever been in trouble for assault, a criminal, nothing like
that.” On cross-examination, the following exchange ensued:

Q. Okay. You also said that you’ve never been accused of any sort of
assault.

A. No sexual assault.

Q. You used the word assault, sir. And so I’m looking at your criminal
history and in 2009 you in fact were charged with assault with intent to do great
bodily harm less than murder, weren’t you?

A. Yes.

Q. Okay. And you were charged with aggravated domestic violence,
correct?

A. Yes.

Q. And assault with a dangerous weapon, correct?

A. Yes.

Q. And that assault with a dangerous weapon involved a plea under the
Holmes Youthful Trainee Act?

A. Yes.

Q. Right, that’s an admission of guilt?

A. Yes.

Q. Okay. Did your incident in 2013 involve an assault?

A. What was it in ’13, what happened in 2013?

[Defense Counsel]: Your honor, can we approach?

A bench conference was subsequently held off of the record, and when defendant’s
testimony resumed, the prosecution ceased questioning defendant regarding his prior criminal
history. Defendant contends that such questioning constituted improper “impeachment” with
former convictions and charges. While the disputed evidence would likely not have been
admissible as general impeachment evidence had the prosecution sought to broach the subject of
defendant’s criminal history before he broached it on his own, because that is not what

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happened, the point is moot. “That our Rules of Evidence preclude the use of evidence for one
purpose simply does not render the evidence inadmissible for other purposes. Rather, the
evidence is admissible for a proper purpose, subject to a limiting instruction under MRE 105.”
People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000) (emphasis added).4
When a defendant “takes the stand in his own behalf, he does so as any other witness, and within
the limits of the appropriate rules he may be cross-examined as to the facts in issue.” People v
Clary, 494 Mich 260, 267; 833 NW2d 308 (2013), quoting Raffel v United States, 271 US 494,
497; 46 S Ct 566; 70 L Ed 1054 (1926). In pertinent part, MRE 404(a) provides:

Character evidence generally. Evidence of a person’s character or a trait
of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered
by an accused, or by the prosecution to rebut the same . . . .

“Once a defendant has placed his character in issue, it is proper for the prosecution to introduce
evidence that the defendant’s character is not as impeccable as is claimed.” People v Vasher,
449 Mich 494, 503; 537 NW2d 168 (1995). “Such rebuttal testimony is admissible under MRE
404(a)(1).” Id. (emphasis added). See also People v Figgures, 451 Mich 390, 399; 547 NW2d
673 (1996) (“Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence
produced by the other party and tending directly to weaken or impeach the same.”) (quotation
marks and citation omitted).

In this case, on direct examination defendant testified—falsely, he later conceded—that
he had never been “in trouble” for “assault,” further suggesting that he had never been in any sort
of “criminal” trouble before. The fact that defendant backpedaled from such testimony on cross-
examination, explaining that he had meant to testify that he had never been charged with sexual
assault before, did not make it improper for the prosecution to walk through the evidentiary door
that defendant had, of his own volition, swung ajar. Rather, after defendant suggested that he
had no prior criminal charges, it was altogether appropriate for the prosecution to cross-examine
him on that subject for rebuttal purposes. See id. Because such evidence was admissible for
rebuttal purposes, the prosecution did not err by introducing it. In sum, defendant’s allegations
of prosecutorial misconduct are without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, defendant raises several allegations of ineffective assistance of counsel, none
of which have merit.

4
In this instance, because defendant made no request for such a limiting instruction, he cannot
assign the trial court’s failure to give one as error requiring reversal. See People v Sardy, 216
Mich App 111, 113; 549 NW2d 23 (1996).

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 In this case, a Ginther5 hearing occurred, and thus this Court’s review includes the
evidence presented at the Ginther hearing. See, e.g., People v Trakhtenberg, 493 Mich 38, 45-
46; 826 NW2d 136 (2012). “[W]hether defense counsel performed ineffectively is a mixed
question of law and fact; this Court reviews for clear error the trial court’s findings of fact and
reviews de novo questions of constitutional law.” Id. at 47. The “defendant 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).

Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. To establish an ineffective assistance of
counsel claim, a defendant must show that (1) counsel’s performance was below
an objective standard of reasonableness under prevailing professional norms and
(2) there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. [People v Lockett, 295 Mich App 165,
187; 814 NW2d 295 (2012) (citations omitted).]

This Court will not “second-guess” trial counsel’s strategy with “the benefit of hindsight.”
People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017). “Defense counsel is given
wide discretion in matters of trial strategy because many calculated risks may be necessary in
order to win difficult cases.” Unger, 278 Mich App at 242. Thus, there is a “strong presumption
that trial counsel’s performance was strategic,” and “[w]e will not substitute our judgment for
that of counsel on matters of trial strategy[.]” Id. at 242-243. “The inquiry into whether
counsel’s performance was reasonable is an objective one and requires the reviewing court to
determine whether, in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” People v Vaughn, 491 Mich 642, 670;
821 NW2d 288 (2012) (quotation marks and citation omitted). Accordingly, the reviewing court
must consider the full range of potential reasons that counsel might have had for acting as he or
she did. Id.

A. VIDEO OF DEFENDANT’S INTERROGATION

Defendant first argues that his trial counsel performed ineffectively by failing to
“formally” move for the admission of the video of defendant’s interrogation or, in the alternative,
to have the trial judge view the video in camera to prove that Sergeant Eidt testified falsely when
he claimed that defendant had said that the truth was somewhere in the middle. Defendant has
failed to rebut the presumptions that counsel’s performance in this regard was both strategic and
effective.

“The decision of what evidence to present is . . . presumed to be a matter of trial
strategy.” People v Solloway, 316 Mich App 174, 190; 891 NW2d 255 (2016). At the Ginther
hearing, defense counsel testified that—despite his stated threats to introduce the interrogation
video into evidence—for “a lot of reasons,” he had no genuine desire to do so. In particular,
counsel agreed that defendant’s “non-verbals [during the interrogation] were very damaging[.]”

5
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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In our estimation, counsel was correct. The video portrays defendant making a non-verbal
response to the statement about the truth being somewhere in the middle, nodding his head in an
affirmative reply. And even assuming that only that portion of the video would have been
shown to the jury to correct Sergeant Eidt’s testimony, or assuming that Sergeant Eidt had been
permitted to refresh his recollection by watching the video, nevertheless, the jury likely would
have learned that although defendant did not orally state that the truth was somewhere in the
middle, he nodded in assent.

Moreover, trial counsel explained at the Ginther hearing that he was concerned that, had
he moved to admit only the “snippet” of the video that was necessary to correct Sergeant Eidt’s
testimony, the prosecution might have successfully moved to introduce the entire video. This
was a valid concern. See MRE 106 (“When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it.”). Having the trial court view the video in camera posed similar
risks. The trial court might have decided that the only way to duly correct Sergeant Eidt’s
testimony was to introduce the entire video into evidence. And while counsel might have
successfully argued that certain portions of the video were inadmissible on various grounds, he
would have had no guarantees before moving to introduce the video about which portions the
trial court might have permitted the jury to view.

Having reviewed the video of defendant’s interrogation, we conclude that the
introduction of the entire video—or nearly any portion of it—would have been prejudicial to the
defense. Put simply, although defendant never clearly admits guilt, his demeanor and body
language are, throughout the interrogation, completely inconsistent with what an average juror
would likely expect of an innocent man accused of sexually assaulting an 11-year-old girl.
Defendant does not rage, make strong or complete denials, appear indignant or offended, or
express disbelief. Nor does he express sympathy or concern for the young victim, suggest that
someone else might be responsible, or offer any sort of alibi or explanation. He consistently
appears defeated and defensive, at times sighing loudly, weeping, and placing his head on the
table. Toward the end, he begins to make comments tending to suggest that he has already
concluded that he will be convicted of whatever charges might be brought against him.

Additionally, during the interrogation defendant admits to (1) smoking marijuana (“two
blunts”) earlier that day, (2) evading income tax by working under the table, which suggests that
he may have had employment of which Merriweather was unaware, and (3) a former conviction
for home invasion, which was never mentioned at trial. Even with his marijuana use in mind,
defendant appears to be inordinately confused regarding basic details about the preceding day,
i.e., the day of the assault, such as whether he had gone to work or showered. At times, he takes
uncomfortably long pauses before responding to questions about such seemingly trivial details,
appearing torn about how to answer. The footage of his excited reply that “it never got that far,”
made in response to an officer’s comment that the victim’s vaginal secretions might be found in
defendant’s pubic hair, seems far more damaging than the testimony on that point that was
introduced at trial. And toward the end of the interview, he begins to ask the officers whether
they believe that he needs an attorney. For those reasons, it was entirely reasonable for trial
counsel to believe that it was imprudent to seek to correct Sergeant Eidt’s testimony by having
any portion of the video introduced into evidence. The risk of having almost any other portion of

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that video admitted under MRE 106 was untenable. It was a reasonable strategy for counsel to
instead impeach Sergeant Eidt on cross-examination—forcing him to admit that he could not
recall who made the disputed statement and that he thus might have been incorrect on direct
examination—while also preventing the prosecution from later rehabilitating Sergeant Eidt on
that point.

B. FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT

Defendant next contends that his trial counsel performed ineffectively by failing to object
to the alleged instances of prosecutorial error discussed earlier in this opinion and to argue that
the cumulative effect of such errors had denied defendant of his right to a fair trial. For three
primary reasons, this claim of error is without merit.

First, defendant’s trial counsel did, in fact, object to many of the alleged instances of
prosecutorial misconduct, at times successfully. It should go without saying that, to the extent
that defense counsel objected successfully to the prosecution’s tactics, his performance cannot be
deemed ineffective. Moreover, the fact that his other objections were unsuccessful is not
evidence that his performance fell below an objective standard of reasonableness under
prevailing professional norms. On the contrary, because the trial court overruled those
objections, they were futile and cannot serve as a basis to conclude that defense counsel
performed ineffectively. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010). Second, as discussed earlier in this opinion, defendant’s claims of prosecutorial
misconduct fail on their substantive merits. “Failing to advance a meritless argument or raise a
futile objection does not constitute ineffective assistance of counsel.” Id. Finally, defendant
cannot rebut the strong presumptions that counsel’s failure to object was effective and strategic.

C. STIPULATION TO THE ADMISSION OF EVIDENCE

In his Standard 4 brief, defendant argues that trial counsel performed ineffectively by
stipulating to the introduction of the recordings of his jailhouse telephone calls. Defendant
contends that the jailhouse telephone calls were inadmissible for lack of relevance under MRE
4016 and because any probative value was significantly outweighed by the attendant risk of
unfair prejudice under MRE 403.7

To the extent that they contained out-of-court statements made by defendant, the
recordings could have been admitted by the prosecution over defendant’s objection as

6
MRE 401 provides, “ ‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
7
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.”

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admissions by a party opponent, see MRE 801(d)(2), and Merriweather’s comments were likely
admissible for the non-hearsay purpose of providing context to defendant’s statements and
responses during the conversation (i.e., for that purpose only and not to prove the truth of the
matter in any assertions that Merriweather might have made). We note that defendant is correct
that admissions by a party opponent may be excluded under MRE 401 and MRE 403. People v
Goddard, 429 Mich 505, 515 & n 9; 418 NW2d 881 (1988).

However, defendant has failed to show a reasonable probability of a different outcome
but for counsel’s failure to object. On direct examination, defendant explained his version of
what the jailhouse calls were about, as did Merriweather. Both claimed that the conversation had
nothing to do with the victim and instead regarded one of Rowland’s friends, with whom
defendant had been unfaithful to Merriweather. Accordingly, defendant was well able to counter
the prosecution’s theory that the jailhouse calls reflected defendant’s culpability in the sexual
assault of the victim and his guilty conscience. As a result, even assuming that defense counsel
should have objected to the introduction of the recordings, defendant has not shown a reasonable
probability that, but for counsel’s failure to make such an objection, the outcome of the
proceedings would have been different.

Affirmed.

/s/ Colleen A. O'Brien
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood

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