People of Michigan v. Eddie Leon Donahoo

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 22, 2020
Plaintiff-Appellee,

v No. 346514
Wayne Circuit Court
EDDIE LEON DONAHOO, LC No. 18-003840-01-FC

Defendant-Appellant.

Before: BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals by right his jury trial conviction of second-degree murder,
MCL 750.317.1 The trial court sentenced defendant as a second-offense habitual offender,
MCL 769.10, to 39 to 85 years’ imprisonment. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a stabbing that occurred in Detroit on July 2, 2017. Defendant
testified at trial that he left his residence around 10:45 p.m. to “look[] for the company of a female.”
Chiquita Paul (Paul) testified that she and her boyfriend, John Williams (Williams), were drinking
outside that evening near an abandoned building at 2930 Cass Avenue, and that defendant, whom
she knew from around the neighborhood, approached her and solicited her for prostitution. Paul
agreed, and the two went behind the abandoned building. Paul testified that she and defendant
were still negotiating when Williams, whom Paul described as her “protector,” came to look for
her behind the building. Williams told Paul to leave, so she began walking toward the Temple Bar
to try to find someone to call the police. Paul testified that she heard Williams and defendant
arguing as she left, but could not make out what they were saying; shortly afterward, she heard a
scream and recognized the voice as belonging to Williams. A few minutes later, she saw defendant
return from behind the building; defendant asker her, “[D]o you still want to do that?” Paul
declined and asked where Williams was. Defendant responded that he did not know and walked

1
Defendant was charged with open murder, MCL 750.318.

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away. Paul then went back behind the building and discovered Williams lying face down on the
ground with blood “squirting out like a faucet.” Williams died before emergency responders
arrived at the scene.

At trial, defendant admitted that he went to an enclosure behind the building with Paul, but
claimed that they were interrupted by Williams, who entered the enclosure with a box cutter in his
hand. Defendant testified that he put his hand up and said, “[H]old up, hold up, hold up,” but that
Williams struck defendant, cutting his hand. A fight ensued, and defendant used a knife he had in
his pocket to defend himself. Defendant acknowledged that he stabbed Williams several times,
but insisted that he did so only because he felt that his life was in danger when Williams attacked
him with the box cutter.

The prosecution played several recorded calls between defendant and his father, Eddie
Sigers (Sigers), and his sister, Sakoilya Donahoo (Sakoilya), for the jury. During these calls,
defendant discussed with his family members whether or not to argue self-defense at trial.

Defendant was convicted and sentenced as described. This appeal followed.

II. REQUEST FOR NEW APPOINTED COUNSEL

Defendant argues that the trial court abused its discretion by denying his request for
substitute counsel without inquiring about why defendant believed defense counsel’s
representation was inadequate. We disagree.

We review a trial court’s ruling on a request for new counsel for abuse of discretion. People
v Buie (On Remand), 298 Mich App 50, 67; 825 NW2d 361 (2012). “A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.” People
v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011) (quotation marks and citation
omitted).

“Appointment of a substitute counsel is warranted only upon a showing of good cause and
where substitution will not unreasonably disrupt the judicial process.” Id. (quotation marks and
citation omitted). “Good cause may exist when a legitimate difference of opinion develops
between a defendant and his appointed counsel as to a fundamental trial tactic, when there is a
destruction of communication and a breakdown in the attorney-client relationship, or when counsel
shows a lack of diligence or interest.” People v McFall, 309 Mich App 377, 383; 873 NW2d 112
(2015) (quotation marks and citations omitted). In contrast, “[a] mere allegation that a defendant
lacks confidence in his or her attorney, unsupported by a substantial reason, does not amount to
adequate cause.” Strickland, 293 Mich App at 398. Good cause cannot be established on the basis
of a defendant’s refusal to cooperate with assigned counsel or because assigned counsel refuses to
file frivolous motions. People v Traylor, 245 Mich App 460, 462-463; 628 NW2d 120 (2001).
“When a defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or is
disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute, take
testimony and state its findings and conclusion on the record.” Strickland, 293 Mich App at 397
(quotation marks and citation omitted).

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 The trial court addressed defendant’s request for new counsel at the beginning of a pretrial
hearing held several weeks before trial. The hearing transcript does not include defendant’s
request for new counsel, so it appears that the request was communicated to the trial court off the
record. It is therefore unclear whether the court was aware of defendant’s specific concerns before
addressing his request. The transcript does reflect that the trial court acknowledged defendant’s
desire for a new lawyer, and that it then commented, “You have been appointed an attorney who’s
competent and capable to handle this case.” The trial court then told defendant that he was free to
hire a different lawyer, as long as the retained attorney was prepared to proceed to trial as
scheduled.

The issue arose again on the first day of defendant’s trial. At the beginning the proceedings,
the trial court said:

Mr. Donahoo, I received a letter that you wrote last week disparaging [defense
counsel], accusing him of being derelict in his duties. I’ve already addressed this
issue with you. I told you if you were unhappy with the services that you were
receiving from [defense counsel] you were happy to—welcome to retain an
attorney of your choosing as long as they were ready to go on trial date. I have no
reason to believe that [defense counsel] has been anything less than thorough and
effective on your behalf, but just so you know, those letters that you wrote will
become a part of your file for future reference should that be necessary.[2]

Considering the deficiencies in the record, it is impossible for this Court to accurately
determine whether the nature of defendant’s complaints required further inquiry. But even when
a trial court fails to properly address a request for substitute counsel, we will not reverse a
conviction on that basis when the defendant actually received effective assistance. People v
Ginther, 390 Mich 436, 442; 212 NW2d 922 (1973). As discussed later in this opinion, we
conclude that defendant has not demonstrated that his counsel was ineffective in a manner that
prejudiced defendant. Therefore, even if the trial court erred by failing to sufficiently investigate
defendant’s problems with his appointed counsel, that error does not require reversal. Id.

III. ADMISSION OF PRIOR TESTIMONY OF UNAVAILABLE WITNESS

Defendant next argues that the trial court erred by admitting the preliminary examination
testimony of a witness after determining that he was unavailable to testify at trial. We disagree.

We review evidentiary rulings for an abuse of discretion. People v Duenaz, 306 Mich App
85, 90; 854 NW2d 531 (2014). “An abuse of discretion occurs when trial court’s decision is
outside the range of principled outcomes.” Id.

2
If defendant’s letter was, in fact, made part of the court file, it was not transmitted to this Court
with the rest of the trial court’s electronic record.

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 Sheddrick Johnson (Johnson) testified at defendant’s preliminary examination that as he
was passing by an alley on the night of July 2, 2017, he saw defendant and Williams arguing.
Johnson had previously given statements to the police identifying defendant from a photographic
array and stating that he recalled seeing something shiny cupped in defendant’s hand and that
Williams was unarmed. He also described defendant as being “in the alley as a lookout.” Johnson
admitted on cross examination that he viewed the scene for approximately five seconds as he was
walking. Johnson also stated on cross examination that by “lookout” he meant “somebody turning
around and looking around” when “there was something about to take place or something had
already took [sic] place.”

On the second day of trial, the prosecution requested a hearing to address the fact that
Johnson was not present for trial and the efforts that had been made to secure his presence.
Detective Kelly Lucy described her unsuccessful efforts to serve Johnson with a subpoena and
material witness detainer. The trial court directed Detective Lucy to continue looking for Johnson
that evening. The next day, Detective Lucy reported on her continued efforts to locate Johnson.
The trial court found that the prosecution had established due diligence in trying to locate Johnson,
who had been transient throughout the pretrial proceedings. The court also noted that defense
counsel had had the opportunity to cross-examine Johnson at the preliminary examination.
Accordingly, the trial court ruled that Johnson was unavailable and that his preliminary
examination testimony could be admitted in lieu of live testimony.

Defendant argues that the trial court erred by holding that the prosecution had shown due
diligence. We disagree.

Hearsay 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), and is
generally inadmissible unless it falls within an exception, MRE 802. One such exception is found
in MRE 804(b)(1) if the witness is unavailable at trial. MRE 804(b)(1) allows admission of
“[t]estimony given as a witness at another hearing of the same or a different proceeding, if the
party against whom the testimony is now offered . . . had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” For purposes of this exception, a
trial court may deem a witness unavailable if he or she “is absent from the hearing and the
proponent of a statement has been unable to procure the declarant’s attendance . . . by process or
other reasonable means, and in a criminal case, due diligence is shown.” MRE 804(a)(5).

“The test for due diligence is one of reasonableness, i.e., whether diligent good-faith efforts
were made to procure the testimony not whether more stringent efforts would have procured it.”
People v James (After Remand), 192 Mich App 568, 571; 481 NW2d 715 (1992). Detective Lucy
described a variety of efforts that were made to locate Johnson. She went to his last known address,
attempted to call him, and called one of his relatives. She also spoke with people who knew him
to inquire about places where he might be staying. She visited a gas station where Johnson was
known to visit, and inquired about Johnson at restaurants, car washes, and liquor stores in the area
he was known to frequent. She also asked for assistance from other law enforcement agencies that
had jurisdiction over the area where Johnson had last been seen and was believed to reside. She
further inquired with the morgues, jails, and state and federal benefits offices in Oakland, Wayne,
and Macomb County.

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 Detective Lucy acknowledged anticipating as early as April 2018 that Johnson, who was
more or less transient, would be difficult to locate. Johnson was given a cellular phone so that he
could stay in contact with the police department, but he last communicated with the police
department sometime in July about the payment of the monthly bill. Thereafter, he stopped using
the phone and had no further contact with the police.

Although the trial court could have inquired further into when these specific efforts were
undertaken, see James, 192 Mich App at 571 (stating that inquiry into the prosecution’s diligence
should consider not only the steps taken to secure the witness’s presence, but also “the time at
which the efforts were made”), we hold that the trial court did not abuse its discretion when it
found that the prosecution had shown due diligence. Under the circumstances of this case, which
involved attempting to locate a transient witness in a large metropolitan area who had discarded
or ceased using the cellular phone given to him by the police, Detective Lucy’s efforts were
reasonable, notwithstanding that they did not result in locating Johnson. Id.

Additionally, a preserved, nonconstitutional error does not warrant reversal unless it
affirmatively appears that the error resulted in a miscarriage of justice. People v Thorpe, 504 Mich
230, 252; 934 NW2d 693 (2019), citing MCL 769.26. “[T]he defendant has the burden of
establishing a miscarriage of justice under a ‘more probable than not’ standard.” Id., quoting
People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). “[T]he effect of the error is evaluated
by assessing it in the context of the untainted evidence to determine whether it is more probable
than not that a different outcome would have resulted without the error.” Lukity, 460 Mich at 495.

Even if we were to conclude that the trial court erred by admitting Johnson’s preliminary
examination testimony, we are not convinced that it is more probable than not that a different
outcome would have resulted without the error. Id. Defendant argues that Johnson’s testimony
was not harmless because Johnson was the only witness to see defendant holding a possible
weapon in his hand; but while defendant is correct in that regard, it is inconsequential because
defendant admitted that he stabbed Williams with a knife.

Defendant also contends that Johnson’s testimony was especially damaging because he
described defendant as seemingly acting as a “lookout.” Defendant argues that this
characterization could have made the jury believe that defendant was waiting for the right time to
strike, thereby undermining his claim of self-defense. We disagree. Johnson’s testimony
regarding his definition of “lookout” was brief and somewhat confusing—it is doubtful that the
jury would have understood it to mean that defendant was waiting in the alley to murder Williams.
Further, Johnson admitted that he had viewed the scene in question for only approximately five
seconds. Moreover, defendant was charged with open murder, and the jury found him guilty of
second-degree murder rather than premeditated murder. See People v Unger, 278 Mich App 210,
229; 749 NW2d 272 (2008) (explaining that lapse of time, sufficient to allow the defendant to
consider his or her actions, is necessary to establish premeditation and deliberation). It is therefore
improbable that the jury relied in any meaningful way on this aspect of Johnson’s testimony.

Further, the other evidence against defendant was strong. Defendant admitted that he
stabbed Williams six times. Two of the stab wounds appeared to have been inflicted from behind
on Williams’s back and right thigh. Additionally, several recorded phone calls from jail were
played for the jury, which were damaging to defendant’s credibility. Less than three weeks before

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trial, defendant told his father that defense counsel wanted to pursue a self-defense claim, and
defendant’s father said, “But you ain’t done nothing!” Defendant responded, “Right.” Later in
the conversation, defendant reiterated, “I been telling them I didn’t do nothing, I don’t know
nothing.” A few days later, defendant asked for his sister’s advice, saying, “Do you think I might
as well just say it was self-defense? I’m not saying I did anything, but do you think with the
situation I’m in now that I might as well just say that?” Defendant’s sister counseled defendant to
say that he did not do anything. Defendant’s overall credibility was also seriously damaged by his
evasiveness during cross-examination. Considering the totality of the evidence, the admission of
Johnson’s testimony, even if erroneous, was harmless. Lukity, 460 Mich at 495.

Defendant also argues that the admission of Johnson’s testimony violated his constitutional
right to confront the witnesses against him. Defendant did not oppose admission of Johnson’s
former testimony on constitutional grounds at trial, so this issue is unpreserved. See People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (“To preserve an evidentiary issue for
review, a party opposing the admission of evidence must object at trial and specify the same ground
for objection that it asserts on appeal.”). We review unpreserved constitutional issues for plain
error affecting substantial rights. Thorpe, 504 Mich at 252; People v Walker, 504 Mich 267, 276;
934 NW2d 727 (2019). “An error has affected a defendant’s substantial rights when there is ‘a
showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.’ ”
Walker, 504 Mich at 276, quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

“The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’
statements of a witness who did not appear at trial, unless the witness was unavailable to testify
and the defendant had a prior opportunity to cross-examine the witness.” People v Walker (On
Remand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006). Here, as discussed, we find no error
in the trial court’s determination that Johnson was unavailable, and that in any event there is no
reason to believe that a different result would have been reached but for the admission of Johnson’s
preliminary examination testimony. Moreover, defendant had a prior opportunity to cross-
examine Johnson at the preliminary examination. Defendant’s confrontation clause argument
accordingly fails.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL

In his primary brief on appeal, defendant argues that he was denied the effective assistance
of counsel because his attorney did not investigate the existence of the enclosure where Williams
purportedly attacked defendant or present photographs of the area to clarify defendant’s testimony.
Defendant also argues that defense counsel was ineffective because he failed to rehabilitate
defendant’s credibility after a highly damaging cross-examination. In his Standard 4 brief,3
defendant also argues that his trial counsel was ineffective for failing to call his family members
as defense witnesses, for not sufficiently developing or emphasizing evidence that Williams had a

3
A supplemental appellate brief filed by in propria persona by a criminal defendant under
Michigan Supreme Court Administrative Order No. 2004-6, Standard 4.

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“bulge” in his pocket that may have been a concealed weapon, and for failing to adequately
impeach Johnson. We disagree.

Defendant did not move for a new trial or evidentiary hearing before the trial court, and
this Court denied two motions to remand for an evidentiary hearing.4 People v Head, 323 Mich
App 526, 538-539; 917 NW2d 752 (2018). Accordingly, our review is limited to mistakes apparent
on the record. Id. at 539. “Whether defendant was denied the effective assistance of counsel
presents a mixed question of fact and constitutional law.” People v Muhammad, 326 Mich App
40, 63; 931 NW2d 20 (2018). “Any findings of fact are reviewed for clear error, while the legal
questions are reviewed de novo.” Head, 323 Mich App at 539.

A defendant who claims to have been denied the effective assistance of counsel bears a
heavy burden to overcome the presumption that defense counsel employed a sound trial strategy.
People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). To establish a claim of
ineffective assistance, the 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.” Trakhtenberg, 493 Mich at
51, citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Muhammad, 326 Mich App at 63 (quotation marks and citation omitted). The defendant also bears
the burden of establishing the factual basis for his or her claim. Id.

1. EVIDENCE OF ENCLOSURE

Defendant argues that his attorney did not properly investigate or present evidence to aid
the jury in understanding the area where the confrontation with Williams took place. “Counsel
always retains the ‘duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.’ ” Trakhtenberg, 493 Mich at 52, quoting Strickland,
466 US at 690-691. When defendant testified to his attack by Williams, he had difficulty
describing the physical area where the confrontation occurred, a partially-fenced-in enclosure
behind an abandoned building. Defendant argues that if defense counsel had presented
photographs of the enclosure, it would have been clear to the jury that he had no means of retreat
and it would have aided the jury in evaluating the reasonableness of defendant’s belief that the use
of deadly force was necessary. Defendant supports his argument with photographs depicting an
area connected to the back of the abandoned building, enclosed by brick walls and a tall chain-link
fence.5 Having reviewed all of the trial testimony and crime scene photographs, we agree that the

4
People v Donahoo, unpublished order of the Court of Appeals, entered December 16, 2019
(Docket No. 346514); People v Donahoo, unpublished order of the Court of Appeals, entered
February 7, 2020 (Docket No. 346514).
5
These photographs are not part of the lower court record and are, therefore, beyond the scope of
this Court’s review when it comes to determining his counsel’s effectiveness. People v Morrison,
328 Mich App 647, 655; 939 NW2d 728 (2019). However, we may consider them in the context
of determining whether to remand for an evidentiary hearing on the issue of his counsel’s

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jury would likely have had great difficulty visualizing the environment in which the attack took
place from defendant’s description alone; however, we still reject defendant’s claim of error.

Defense counsel’s decision to forgo seeking or presenting evidence that would clarify the
nature of the enclosure did not fall below an objective standard of reasonableness. A defendant’s
failure to retreat can be relevant to evaluating whether the use of deadly force in self-defense was
reasonably necessary. People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002).6 But,

[A] person is never required to retreat from a sudden, fierce, and violent attack; nor
is he required to retreat from an attacker who he reasonably believes is about to use
a deadly weapon. In these circumstances, as long as he honestly and reasonably
believes that it is necessary to exercise deadly force in self-defense, the actor’s
failure to retreat is never a consideration when determining if the necessity element
of self-defense is satisfied; instead, he may stand his ground and meet force with
force. [Id. at 119 (citations omitted).]

Defendant’s testimony about Williams’s attack described a “sudden, fierce, and violent
attack.” The issue of whether defendant had a duty to retreat was not argued at trial. Moreover,
Williams’s body was not discovered inside the enclosure—it was near the northeast corner of the
exterior fence. If the jury believed that the fight began inside the small enclosure, it could also
infer that defendant pursued Williams out of the enclosure and toward the fence line. Any
suggestion that defendant chased after a fleeing opponent would undermine his subjective claim
of fear and the objective reasonableness of defendant’s action. Considering this risk, defense
counsel could have strategically decided against focusing on the location of the altercation,
reasoning that the minimal benefit of such evidence was outweighed by the negative implications
that could be attached to it. We will not second-guess trial counsel with the benefit of hindsight.
People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).

2. DEFENDANT’S CREDIBILITY

Defendant also argues that defense counsel was ineffective for failing to rehabilitate
defendant’s credibility after the prosecution’s damaging cross-examination. We disagree. The
prosecution asked defendant a number of “yes or no” questions for which defendant attempted to
provide more detailed responses. The trial court admonished defendant for trying to interject
addition information and eventually said, “If there’s something that needs to be explained or
clarified, [defense counsel] will get a chance for what’s called redirect after the prosecution is
done.” But when the prosecution concluded its cross-examination, defense counsel declined the
opportunity for redirect-examination.

effectiveness. See People v Moore, 493 Mich 933, 933; 825 NW2d 580 (2013). We may also
consider expanding the record in the interests of justice. MCR 7.216(A)(4).
6
Riddle was decided before the enactment of the Self-Defense Act, MCL 780.971 et seq., but the
act did not “modify the common law of this state in existence on October 1, 2006 regarding the
duty to retreat before using deadly force or force other than deadly force,” MCL 780.973.

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 After the close of proofs, defendant asked the trial court to be allowed to place a statement
on the record outside of the presence of the jury. The trial court allowed him to do so, and
defendant complained about the limitations on his testimony, stating:

I felt that—I was told that I would be given an opportunity to explain the phone
calls and what I said to my family and I also wanted to explain about who had the
box cutter. It doesn’t just magically disappear. I was going to explain Chiquita
Paul was seen walking away from the scene probably (unintelligible) box cutter.
She also explained walking back to the deceased’s body, so that’s where the box
cutter went.

Defendant also alleged that he had told defense counsel about the box cutter a few days before trial
and complained that he was not allowed to explain that he stabbed Williams’s arm, leg, and the
soft tissue of his back in an attempt to avoid inflicting fatal injuries. Defendant also wanted to
explain that he had been untruthful with his family because they wanted “to believe that I didn’t
do this,” and he was trying to comfort them.

The trial court responded:

Now, as a matter of trial strategy, perhaps [defense counsel] must have
decided that he didn’t want to redirect to further expose you to more cross
examination by the prosecutor. So, you know, [defense counsel] doesn’t have to
explain his trial strategy to me or to anyone, but it was painfully obvious to this
Court that you didn’t do so well on cross examination. Okay? And so I can only
assume that [defense counsel], in his learned experience chose not to redirect you
because the more he questions, the more opportunity the prosecutor has to keep you
on the stand and maybe he decided it was in your best interest to just get you off
the stand as quickly as possible because the more you explain, or try to explain
every little piece of evidence away, the more guilty you make yourself look. I
mean, I’m just assuming. But, you know, [defense counsel] doesn’t have to explain
his trial strategy[.]

* * *

And as a trial lawyer, and I’m not one anymore but I used to be one. You
know, you learn things, and you learn from experience a lot of things and you have
experience speaking to jurors after they reach verdicts and talk to them about their
impressions of things. And sometimes one of the things that jurors say is he had a
[sic] answer for everything. Every question you ask he had a [sic] explanation for
everything and he was trying so hard it made it so obvious that he was lying. And
so perhaps as a matter of trial strategy [defense counsel] chose not to go into those
area, but that’s you know, he’s the expert in defense here and so he has to—he does
what he thinks is best for you. You might not like it or agree with it, but that’s what
he did.

The trial court also reasoned that defense counsel would not have wanted defendant to explain that
he was trying to avoid fatally wounding Williams because defense counsel would then be unable

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to argue that defendant was entirely acting out of fear for his own life. With respect to defendant’s
explanation about trying to comfort his family, the trial court pointed out that the prosecution could
have turned the explanation against defendant by arguing that defendant lied to his family to make
them think better of him and was likely lying to the jury for the same reason.

We agree with the trial court that defense counsel’s decision not to subject defendant to the
risk of further cross-examination was sound trial strategy. Defendant’s testimony appeared to
damage his credibility more the longer he was on the stand, and his trial counsel was not
unreasonable for not eliciting testimony from defendant that he would lie to family members to
prevent them from thinking poorly of him or that he was able to carefully choose the parts of
Williams’s body to stab; such testimony was far more likely to hinder than help defendant’s case.
Defendant has not overcome the presumption that defense counsel’s performance was the product
of sound trial strategy. Trakhtenberg, 493 Mich at 52.

Furthermore, defendant has not demonstrated a reasonable probability that defense
counsel’s decision regarding which testimony to elicit from defendant affected the outcome of the
proceedings. Defendant argues that the lack of redirect examination left the jury without a
reasonable explanation about why defendant would tell his family he was not involved in
Williams’s death. Defendant’s position lacks merit. First of all, it is far from clear that defendant’s
explanation would have changed how the jury viewed his dishonesty with family members.
Moreover, his dishonesty about the events surrounding Williams’s death extended beyond his
conversations with his family—he also denied involvement when he was arrested. Regardless of
his reasons for doing so, defendant’s credibility was necessarily damaged by his history of lying.

Moreover, in closing arguments, defense counsel urged the jury to consider the content and
timing of the conversations carefully. More specifically, he noted that defendant spoke about
acting in self-defense in the very first call.7 It was not until defendant’s father repeatedly insisted
that defendant should deny any involvement that defendant agreed he did not do or know anything.
Moreover, defendant hedged many of his denials in terms of criminal responsibility, saying things
like, “It wasn’t no murder one,” and “I didn’t kill no innocent man.” Defense counsel argued that
by carefully wording his statements, defendant was “still actually saying what happened in his own
way.” Defense counsel’s argument was supported by the sequence of the recordings and gave the
jury an alternative way to view the phone calls. Thus, it is improbable that the jury would have
found defendant more credible or reached a different result had he been able to explain why he
lied to his family.

3. DEFENSE WITNESSES

Defendant also argues that defense counsel was ineffective in failing to call defendant’s
father or sister as witnesses for the defense. We disagree.

7
In May 2018, defendant left a message for his sister, asking her about hiring an investigator to
take pictures of the crime scene to support defendant’s claim of self-defense. He spoke with her
directly later the same day, again discussing his request for someone to take pictures of the
enclosure. Defendant emphasized that the pictures were “critical” to the issue of self-defense.

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 Defendant argues that his trial counsel’s failure to call certain defense witnesses was the
sort of complete denial of counsel described in United States v Cronic, 466 US 648; 104 S Ct 2039;
80 L Ed 2d 657 (1984). When an ineffective-assistance claim falls within one of the rare situations
described in Cronic, 466 US at 658-660, an attorney’s performance is so deficient that prejudice
is presumed. People Kammeraad, 307 Mich App 98, 125; 858 NW2d 490 (2014). Among other
situations, prejudice is presumed “if counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” Id., quoting Cronic, 466 US at 659 (quotation marks omitted).
But in order to invoke the Cronic standard, “the attorney’s failure must be complete.” Bell v Cone,
535 US 685, 697; 122 S Ct 1843; 152 L Ed 2d 914 (2002).

Defendant’s reliance on Cronic is misplaced, because his argument regarding Sigers and
Sakoilya does not involve a complete failure to challenge the prosecution’s case. Defense counsel
effectively cross-examined Paul, drawing attention to discrepancies in her various statements and
questioning whether her alcohol consumption on the day of Williams’s death impaired her
perception or memory. During the medical examiner’s testimony, defense counsel spent
considerable time exploring the high level of cocaine and cocaine metabolites in Williams’s system
in an effort to demonstrate that Williams was likely in an agitated and aggressive state of mind
when he confronted defendant. Additionally, defense counsel elicited the medical examiner’s
concession that the wounds on Williams’s arms were not classic defensive wounds and could have
been sustained in an aggressive posture. Defense counsel was knowledgeable about the facts of
the case and well-prepared to present a self-defense theory. Because defense counsel clearly
subjected the prosecution’s case to meaningful adversarial testing, defendant’s claim under Cronic
fails. Id.

Defendant also argues that his counsel’s conduct was deficient under Strickland. We
disagree. “Decisions regarding whether to call or question witnesses are presumed to be matters
of trial strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). This Court
will not second-guess strategic matters or assess the wisdom of defense counsel’s strategy with the
benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). “[A] claim of
ineffective assistance of counsel premised on the failure to call witnesses is analyzed under the
same standard as all other claims of ineffective assistance of counsel, i.e., 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 Jurewicz, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No.
160318), quoting Trakhtenberg, 493 Mich at 51.

Defendant argues that defense counsel should have called Sigers and Sakoilya as witnesses
so they could testify that defendant did, in fact, tell them that he killed Williams in self-defense,
rather than allowing the jury to draw conclusions from the jail call recordings alone. Defendant
also alleges that Sigers had photographs of the enclosure behind the abandoned building that could
have been presented but for defense counsel’s refusal to call Sigers as a witness or return his phone
calls. Defendant supports his position with affidavits from both Sigers and Sakoilya.

Defense counsel’s decision not to call Sigers and Sakoilya did not fall below an objective
standard of reasonableness, and was not prejudicial. Jurewicz, ___ Mich at ___. With regard to
the jail calls, defense counsel explained in closing argument that defendant referred to his self-
defense claim in his first conversation with Sakoilya and only changed his story in later

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conversations to appease his family. Defense counsel was able to offer the jury a reasonable,
nonincriminating interpretation of the recorded phone calls, and he did so by relying solely on the
sequence of the phone calls and defendant’s precise statements during those calls. Accordingly,
there was no need for Sigers and Sakoilya to clarify what defendant had divulged to them apart
from the phone calls, and defense counsel’s decision to focus on other aspects of the case was
reasonable. Further, as discussed previously, defense counsel could reasonably have decided there
was little or no strategic benefit to presenting photographs of the small enclosure when defendant’s
duty to retreat was not at issue.

Defendant has also failed to demonstrate that he was prejudiced by defense counsel’s
decisions. Considering their relation to defendant, any testimony from Sigers or Sakoilya would
necessarily have been open to claims of bias. This is particularly true here because the jury heard
both family members urge defendant to deny any involvement in Williams’s death. If either Sigers
or Sakoilya testified that defendant disclosed killing Williams in self-defense, the prosecution
could point out that they therefore urged defendant to lie and to deny any involvement. At the
least, the credibility of these witnesses would have been suspect. Accordingly, defendant has not
shown a reasonable probability that the outcome would have been different if defense counsel had
called Sigers and Sakoilya as witnesses. Id.

Defendant also complains that defense counsel misled Sigers and Sakoilya about the
seriousness of the penalty that defendant faced and the date on which he would be sentenced,
resulting in them not attending or speaking at his sentencing. Defendant has not established the
factual basis for this claim; further, he cannot demonstrate that his sentencing was prejudiced
because of this alleged conduct. A defendant’s family members have no right to speak or present
evidence at sentencing. Under MCR 6.425(E)(1)(c), the trial court must “give the defendant, the
defendant’s lawyer, the prosecutor, and the victim an opportunity to advise the court of any
circumstances they believe the court should consider in imposing sentence[.]” There is no similar
right afforded to a defendant’s family members.

4. EVIDENCE OF POSSIBLE CONCEALED WEAPON

Defendant also argues that defense counsel did not sufficiently develop evidence or
emphasize that Williams had a “bulge” in the front pocket of his hooded sweatshirt that defendant
could have believed was a concealed weapon. We disagree. “Decisions regarding what evidence
to present, whether to call witnesses, and how to question witnesses are presumed to be matters of
trial strategy, as is a decision concerning what evidence to highlight during closing argument.”
Horn, 279 Mich App at 39 (citations omitted).

A forensic technician testified that he observed a bag containing two sandwiches and
various other snacks near Williams’s body while processing the scene for evidence. However, the
witness was unsure whether the bag was discovered in Williams’s pocket and could only confirm
that he photographed the bag where he found it upon arriving at the scene. Defense counsel
questioned the first responding police officer about the matter, and the officer testified that
Williams’s body was turned over by medics to determine whether he could be saved. The officer
said that Williams was found with food in his pocket, although he could not remember in which
pocket it was located. No one specifically testified that Williams had stored the bag in the front
pocket of his sweatshirt.

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 Defendant’s argument ignores his own testimony. When defendant took the witness stand,
he testified that Williams had entered the enclosure with a box cutter in his hand, and that the box
cutter made defendant believe that Williams would attack him; defendant further testified that
Williams had in fact attacked him with a box cutter. Considering defendant’s testimony that
Williams had attacked him with an actual, unconcealed weapon, defendant cannot overcome the
presumption that defense counsel acted reasonably by failing to pursue the theory that defendant
may have believed that Williams had a concealed weapon. Moreover, defendant was asked by his
counsel if anything about Williams’s appearance and demeanor made defendant afraid that he
would be attacked. If defendant had indeed believed that Williams possessed a concealed weapon
in his front pocket, he could have said so at the time. Defendant has not overcome the presumption
of trial strategy. Id.

5. IMPEACHMENT OF JOHNSON

Defendant also argues that his counsel was ineffective for failing to adequately impeach
Johnson. We disagree.

Again, decisions regarding how to question a witness are generally presumed to be matters
of trial strategy that this Court will not second-guess with the benefit of hindsight. Horn, 279 Mich
App at 39. Defendant points out a number of what he characterizes as inconsistencies between
Johnson’s preliminary examination testimony and earlier statements Johnson made to the police.
Johnson’s written statements to the police were not admitted at trial.

Defendant cannot overcome the presumption that defense counsel’s decision not to raise
every inconsistency in Johnson’s preliminary examination testimony involved objectively
reasonable strategy.

Defense counsel argued at trial that Johnson’s testimony at the preliminary examination
actually supported defendant’s version of events. Johnson confirmed that he only observed the
argument between defendant and Williams for approximately five seconds. Relying on this
evidence, defense counsel argued in his closing argument that Johnson, having seen the altercation
in the dark for only a few short seconds, mistook Williams and defendant for one another. He
pointed out that Johnson claimed that defendant was wearing a red, white, and blue shirt, which
actually described Williams’s shirt, as seen in the crime scene photographs. Defense counsel
theorized that it made more sense for Paul’s “protector” to be acting as a lookout while Paul and
defendant went to consummate their agreement. Therefore, defense counsel theorized, the person
Johnson saw surreptitiously holding a weapon could actually have been Williams, rather than
defendant. Defense counsel also emphasized that Paul and Johnson had a longstanding
relationship and spoke with each other after the incident, implying that Johnson may have had an
ulterior motive for incriminating defendant, rather than Williams.

Considering defense counsel’s use of Johnson’s testimony in closing argument, it was
important that Johnson appeared credible as a general matter. By refraining from impeaching
Johnson about every inconsistency between his testimony and earlier statements, defense counsel
was able to argue that Johnson’s recollection was largely accurate, with the exception of his
mistaken (or deliberate) misidentification of defendant as the person holding a weapon at the
beginning of the argument. If the jury had found defense counsel’s characterization of Johnson’s

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testimony persuasive, it would have supported defendant’s contention that he acted in self-defense
only after Williams confronted him with a box cutter. Because defendant has not overcome the
presumption that defense counsel’s performance constituted reasonable trial strategy, he has not
demonstrated that he was denied the effective assistance of counsel. Trakhtenberg, 493 Mich at
51-52; Horn, 279 Mich App at 39.

Defendant also argues that defense counsel’s performance was deficient when he failed to
inform the jury that Johnson testified at the preliminary examination only after being “threatened”
with jail and a $1,000 personal bond. We disagree.

Johnson failed to appear at the first day of defendant’s preliminary examination despite the
fact that a material witness detainer had been issued. On the second day of defendant’s three-day
preliminary examination, Johnson was at the 36th District Court for an unrelated matter, and was
brought before the judge presiding over defendant’s preliminary examination for a show cause
hearing concerning his failure to appear. The judge told Johnson that he would have to appear at
the third day of the preliminary examination hearing and said, “I know you don’t want me to put
you in jail.” The judge also set a $1,000 personal bond to ensure Johnson’s appearance.

To the extent that defendant takes issue with the district court’s methods of enforcing the
material witness detainer, his position lacks merit because the district court was authorized by
statute to order a personal bond or commitment to jail to secure Johnson’s presence at the
preliminary examination. MCL 767.35. Moreover, again, defense counsel had an interest in
Johnson appearing generally credible. If defense counsel had drawn the jury’s attention to the
district court’s methods for compelling Johnson’s appearance at the preliminary examination, it
might have negatively affected the jury’s view of Johnson’s credibility. Defendant has not
demonstrated ineffective assistance of counsel because he again failed to overcome the
presumption that defense counsel’s decision regarding this matter was consistent with an
objectively reasonable trial strategy. Trakhtenberg, 493 Mich at 51-52. Moreover, even if defense
counsel’s decision not to raise the issue of the bond was objectively unreasonable, defendant has
not demonstrated a reasonable probability that the outcome of the proceedings would have been
different if the issue had been raised. It is general knowledge that witnesses may be subpoenaed
or otherwise ordered to appear by a court, and may face consequences if they do not appear; it is
doubtful that repeating this fact to the jury would have altered its perceptions of Johnson’s
testimony.

V. SENTENCING/INEFFECTIVE ASSISTANCE

Defendant also argues that his sentence was unreasonable and disproportionate, because it
was based on the sentencing judge’s personal policy of imposing top-of-the-guidelines sentences
whenever a defendant is convicted at trial, as opposed to entering a plea. Defendant cites two
previous cases in which this Court held that the sentencing judge’s practice improperly penalized
a defendant for exercising constitutional rights and failed to comply with individualized sentencing
requirements. Defendant alternatively argues that he was denied the effective assistance of counsel
when his attorney did not object to defendant’s sentence or even request a lesser punishment. We
disagree.

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 To preserve a claim of constitutional error, the defendant must object at sentencing on the
same ground pursued on appeal. See People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015) (finding that Sixth Amendment issue was not preserved when the defendant did not raise
the constitutional objection at sentencing). Defendant did not object to his sentence on the ground
that the sentencing judge applied a policy that punished him for exercising constitutional rights;
this issue is therefore unpreserved. With regard to his claim of ineffective assistance of counsel,
as discussed earlier in this opinion, our review is limited to mistakes apparent on the record. Head,
323 Mich App at 538-539.

We generally review the reasonableness of a sentence for an abuse of discretion. People v
Lampe, 327 Mich App 104, 125; 933 NW2d 314 (2019); People v Dixon-Bey, 321 Mich App 490,
520; 909 NW2d 458 (2017). Unpreserved issues, however, are reviewed for plain error affecting
substantial rights. Lockridge, 498 Mich at 392.

“Whether defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law.” Muhammad, 326 Mich App at 63. “Any findings of fact
are reviewed for clear error, while the legal questions are reviewed de novo.” Head, 323 Mich
App at 539.

We are “required to review for reasonableness only those sentences that depart from the
range recommended by the statutory guidelines.” People v Anderson, 322 Mich App 622, 636;
912 NW2d 607 (2018). When the defendant’s sentence does not depart from the sentencing
guidelines, it must be affirmed unless the guidelines were erroneously scored or the trial court
relied on inaccurate information. Id. Because defendant acknowledges that his sentence is within
the properly scored guidelines range and he does not claim that the trial court relied on inaccurate
information, review of his sentence for reasonableness is arguably precluded under Anderson.
However, Anderson’s conclusion that a sentence must be affirmed in the absence of the specified
forms of error is derived from MCL 769.34(10), see id. at 636 n 34, and the limitations imposed
by that statute cannot insulate a sentence from review when the claimed error has constitutional
implications, People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).

As defendant points out, this Court has twice acknowledged the sentencing judge’s
“ ‘practice’ of sentencing defendants ‘to the top of [their] guidelines’ following a jury trial,” and
concluded that the practice effectively punishes those defendants for exercising fundamental
constitutional rights. People v Pennington, 323 Mich App 452, 466; 917 NW2d 720 (2018),
quoting People v Smith, unpublished per curiam opinion of the Court of Appeals, issued November
22, 2016 (Docket No. 328477), p 6.8 In the more recent of these cases, this Court explained:

[A] policy of sentencing all defendants who go to trial to the top of the sentencing
guidelines range is fundamentally inconsistent with the principle of individualized
sentences.

8
Unpublished opinions are not precedentially binding under MCR 7.215(C)(J). People v Baham,
321 Mich App 228, 248 n 8; 909 NW2d 836 (2017). We cite Smith only because it involved the
same sentencing judge and policy challenged by defendant.

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 The judge’s policy also runs afoul of the principle that “[a] court cannot
base its sentence even in part on a defendant’s refusal to admit guilt.” The right to
trial by jury in a criminal felony prosecution is among the most fundamental rights
provided by our judicial system. Moreover, “[i]t is a violation of due process to
punish a person for asserting a protected statutory or constitutional right.”

* * *

Courts, including the United States Supreme Court, have sometimes
struggled to articulate the precise line between rewarding a defendant for pleading
guilty, which is routine in plea bargains, and punishing a defendant for asserting
his constitutional right to trial.

In this case, however, we need not resolve any tension between these
principles. Here, the judge’s sentencing policy was to impose the maximum
recommended guidelines sentence when a defendant was convicted after going to
trial. This does not demonstrate a process by which a court determines what an
individualized sentence should be and then reduces it as an inducement or reward
for a plea. Rather, it is the automatic imposition of the maximum guidelines
sentence—a policy that ignores the requirement of individualized sentencing and
promises not a degree of mercy as reward for a plea, but instead a harsh sentence
as punishment for seeking a trial. Thus, while an admission of guilt may be
considered indicative of remorse and may be grounds to reduce the punishment that
would otherwise be imposed, there is no doubt that sentencing defendants to the
top of the guidelines because they went to trial, or increasing their sentence in any
way for doing so, is a violation of both due process and our law governing
sentencing. [Pennington, 323 Mich App at 466-469 (citations and footnote
omitted; second and third alterations in original).]

While the foregoing rationale is no less applicable now than it was when Pennington was
decided two years ago, we do not construe this Court’s opinion in Pennington as a wholesale attack
on every sentence imposed by this judge, nor does it compel resentencing whenever the same judge
sentences a defendant at the top of the applicable guidelines range. Defendant was sentenced on
September 18, 2018, after this Court’s opinions in Pennington and Smith alerted the sentencing
judge to the flaws of her policy. Although the judge did not clearly articulate why the sentence
she chose in this case was proportionate to defendant and the offense he committed, neither did
she make any comments suggesting she was still employing the sentencing practice that was
deemed improper in Pennington and Smith. Absent evidence to the contrary, “[a] sentence within
the guidelines range is presumptively proportionate[.]” Powell, 278 Mich App at 323.
Defendant’s case is distinguishable from Pennington and Smith because there is no record evidence
to rebut this presumption.

Defendant also contends that the trial court’s sentence was punishment for exercising his
right to testify at trial. We find no support for that claim in the record. Defendant devoted much
of his allocution at sentencing to reiterating complaints about counsel, detailing what he perceived
as inconsistencies in the prosecution’s case, and summarizing his right to employ self-defense
when faced with a sudden, fierce attack. After patiently listening to defendant’s allocution, the

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judge explained her own view of the trial and opined that defendant’s decision to testify against
counsel’s advice had been detrimental to his case because his testimony came off as disingenuous.
We do not construe these comments as suggesting that the judge was punishing defendant for
testifying. Rather, she was responding to his complaints about the trial and trying to impress upon
him that he “didn’t do [himself] any services by taking the stand and not being honest and
forthright.” Because defendant has not demonstrated that his sentence was imposed in violation
of his constitutional rights, and he does not claim that the it was the product of erroneous scoring
or incorrect information, he is not entitled to resentencing. Anderson, 322 Mich App at 636.

Defendant alternatively argues that he was denied the effective assistance of counsel
because his attorney did not object to the reasonableness of defendant’s sentence or advocate for
a lesser punishment despite the sentencing judge’s reputation for relying on an improper
sentencing policy. A criminal defendant has the right to effective assistance of counsel at all
critical stages of the proceedings, including sentencing. People v Pubrat, 451 Mich 589, 593-594;
548 NW2d 595 (1996). Defense counsel did not object to defendant’s sentence or ask the trial
whether the sentence was the result of a continued application of the policy found objectionable in
Smith and Pennington; arguably, this conduct fell below an objective standard of reasonableness
when combined with the fact that defense counsel did not even advocate for a lower sentence.
Trakhtenberg, 493 Mich at 51.

Even if such conduct was below an objective standard of reasonableness, however,
defendant has not shown that he was prejudiced by his counsel’s performance. Id. Defendant does
not point out any error in the scoring of his sentencing guidelines or inaccuracy in the information
before the court. Defendant was given a full opportunity for allocution, during which he continued
to maintain that his actions were justified on the basis of self-defense. The prosecution and a
member of Williams’s family urged the court to impose the maximum sentence provided by the
sentencing guidelines. In light of the circumstances, there is not a reasonable probability that the
court would have imposed a different sentence but for counsel’s failure to request a lower sentence.

VI. REMAINING STANDARD 4 BRIEF ISSUES

Defendant also raises two additional issues in his Standard 4 brief, both of which lack merit.

A. ATTORNEY GRIEVANCE COMMISSION COMPLAINT (AGC)

Defendant filed a grievance against his counsel with the AGC. Defendant argues that
defense counsel lied to a member of the AGC about his investigation of the crime scene and
statements he purportedly attributed to Sigers. This issue is not preserved for appellate review
because defendant did not raise it before the trial court. People v Metamora Water Serv, Inc, 276
Mich App 376, 382; 741 NW2d 61 (2007). More importantly, defense counsel’s representations
to the AGC, made after defendant’s conviction, are simply not within the scope of this criminal
appeal, and we decline to consider defendant’s argument further.

B. JUDICIAL MISCONDUCT

Lastly, defendant argues that the trial court erred by making findings of fact at sentencing.
We disagree.

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 Defendant did not preserve this issue for review by raising it below. Metamora Water
Serv, 276 Mich App at 382. We review unpreserved issues for plain error affecting the defendant’s
substantial rights. Thorpe, 504 Mich at 252.

Defendant takes issue with the trial court’s opinion of his credibility during trial.
Defendant’s complaint appears to stem from his exchange with the trial court at sentencing. As
noted earlier, defendant identified what he perceived as inconsistencies in the prosecution’s case
and maintained that his use of self-defense was justified. The court’s response to defendant’s
allocution included the following remarks:

I don’t think we’ll really ever know what happened back behind that
building. I don’t know if you went back there armed with that knife because you
intended to do harm to the woman whose services you had engaged. I don’t know
if you had that knife on you just because you were in a [sic] area that can be
somewhat dangerous. I don’t know if, you know, he was, in fact, armed with a box
cutter and attacked you. You know, I don’t know, but what I do know is that you
didn’t do yourself any services by taking the stand and not being honest and
forthright. And the reason I say you were not honest and forthright is because of
the myriad of inconsistencies that the prosecutor skillfully was able to draw out in
your testimony.

We see no evidence in the trial court’s statement that it was making findings of fact that were more
properly made by the jury. See Aldrich, 246 Mich App at 124 (discussing jury’s role as fact-
finder). Nor does the record show that the trial court based its sentence on any improperly found
facts. Defendant has failed to demonstrate any error, plain or otherwise.

Finally, defendant’s statement of the question presented also suggests that he faults the trial
court for not issuing subpoenas to witnesses to appear at his sentencing. But sentencing was not
the time for defendant to call witnesses or present further evidence in support of his self-defense
claim. In addition, under MCR 6.425(E)(1)(c), the trial court must give “the defendant, the
defendant’s lawyer, the prosecutor, and the victim an opportunity to advise the court of any
circumstances they believe the court should consider in imposing sentence[.]” Defendant has cited
no authority that requires the trial court to extend a similar right to speak at sentencing to a
defendant’s witnesses. Defendant has not established plain error affecting his substantial rights.

Affirmed.

/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Karen M. Fort Hood

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