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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 3, 2020
Plaintiff-Appellee,
v No. 347537
St. Clair Circuit Court
NATHAN WAYNE SHAW, LC No. 18-001730-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and SAWYER and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of operating a vehicle while
intoxicated, third offense, MCL 257.625(1)(a), reckless driving, MCL 257.626, and operating a
vehicle with a suspended, revoked, or denied license, second offense, MCL 257.904. Defendant
was sentenced, as a second-offense habitual offender, MCL 769.10, to 2 to 7½ years for operating
a motor vehicle while intoxicated, third offense, five days, time served, for reckless driving, and
five days, time served, for operating a vehicle with a suspended, revoked, or denied license, second
offense. Defendant argues on appeal that he is entitled to a new trial because his right to
confrontation was violated when the prosecutor questioned him and Jonathan Smith about the
statements made to the police by defendant’s wife, Mercedes Shaw. Defendant argues, in the
alternative, that he was denied the effective assistance of counsel because his trial counsel failed
to object to the prosecutor’s questions about Shaw’s statements to the police. We affirm.
I. FACTUAL BACKGROUND
On July 2, 2017, defendant and his family attended the Pickerel Festival in Algonac,
Michigan. Defendant testified that throughout the day, he drank eight or nine 16-ounce beers and
snorted cocaine. Before the fireworks show started, defendant laid down in his black truck because
he drank too much and wanted to “sleep it off.” Defendant’s truck was parked at the corner of
Robbins Street and State Street in Algonac. Corey Engel, Scott Pearson, and Jeannie Hilton were
attending a barbeque at Engel’s house located on State Street.
After the fireworks ended, Engle, Pearson, and Hilton, heard a truck “brake torqueing” and
squealing tires. Engel, Pearson, and Hilton ran to the front of Engel’s house and saw a bearded
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man in a black truck parked at the corner of Robbins Street and State Street brake torqueing,
revving his engine, and spinning his back tires. Engel and Pearson approached the driver’s side
window of the truck and Engel asked the driver what he was doing. The driver did not respond.
Engel and Pearson put their arms into the truck to take the keys out of the ignition and the driver
drove off with Engel and Pearson hanging off the side of the truck. Engel and Pearson let go of
the truck after being dragged for two blocks. St. Clair County Sheriff’s Deputy Dennis Tuzinowski
pulled the truck over and defendant exited from the driver’s door. Deputy Tuzinowski arrested
defendant and defendant admitted that he did not have a valid driver’s license, had a blood alcohol
level of .078, and tested positive for cocaine and benzoylecgonine.
II. RIGHT TO CONFRONTATION
Defendant argues that his constitutional right to confrontation was violated when the
prosecutor questioned defendant and Smith about Shaw’s statements to the police. We disagree.
To preserve a claim that a defendant’s right to confrontation was violated, the defendant
must object to the admission of the testimony in the trial court. People v Chambers, 277 Mich
App 1, 10; 742 NW2d 610 (2007). Defendant failed to object to the admission of the testimony
regarding Shaw’s statements to the police at trial. Therefore, the issue is unpreserved. Id. This
Court reviews unpreserved issues for plain error affecting substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999). To avoid forfeiture, the defendant must
demonstrate that “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. at 763. “The third requirement generally requires
a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.”
Id. Even if all three requirements are met, reversal is only warranted when the plain error resulted
in an innocent defendant’s conviction, or it “seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” People v Moorer, 262 Mich App 64, 66-67; 683 NW2d 736
(2004).
A criminal defendant’s right to confront the witnesses against him or her is guaranteed by
both the United States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963,
art 1, § 20; People v Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009). “To preserve this
right, testimonial hearsay is inadmissible against a criminal defendant unless the declarant is
unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant.”
Garland, 286 Mich App at 10, citing Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158
L Ed 2d 177 (2004). “However, if the hearsay is nontestimonial, the Confrontation Clause does
not restrict state law from determining admissibility.” Id.
“Hearsay” is defined as “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); See People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013). “Statements are
testimonial if the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to
establish or prove past events potentially relevant to later criminal prosecution.’ ” Garland, 286
Mich App at 10, quoting Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224
(2006). Statements to the police are nontestimonial “ ‘when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.’ ” People v Walker,
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273 Mich App 56, 61; 728 NW2d 902 (2006), quoting Davis, 547 US at 822. Statements to the
police are testimonial when “ ‘the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.’ ” Id., quoting Davis, 547 US at 822.
Defendant challenges the prosecutor’s line of questioning about the statements which Shaw
made to the police when defendant was arrested. The prosecutor first questioned Smith about
Shaw’s statements, as follows:
Q. . . . So later that night were you aware that [Shaw] gave a statement to
the police?
A. Um, not that I recall. A statement to the police at all. I mean, I know
that the cops talked to both of us.
* * *
Q. Are you aware that [Shaw] said she was driving around with you because
she was mad at [defendant] for drinking and wanting to drive the car?
A. She was with me, yes.
Q. Okay. So she was driving around with you when you said you were
kind of driving around –
A. The block.
Q. -- the block.
A. Yep.
Q. She was with you?
A. We was trying to leave, yeah.
Q. And it’s true she was mad at [defendant]?
A. Yes.
Q. Because he was drinking?
A. Um, yes.
Q. And because he insisted on driving the truck, correct?
A. Yeah, they were fighting, yeah.
Q. She’d actually thrown the keys at him, correct?
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A. Um, I don’t know, I wasn’t [watching] them fight. I just kind of learned
to block them two out.
Q. It’s true that she wasn’t driving the truck. The truck got driven so she
didn’t have the keys, correct?
A. Um, she wasn’t driving, no.
Q. Are you aware that [Shaw] told the police she saw [defendant] leave
driving the truck northbound on State [Street]?
A. No, I’m not aware of that.
Q. She was in the car with you when she saw that, correct?
A. I didn’t see him leave at all. I’m not aware if she seen him leave. I don’t
see how that’s even possible because we left before that car had left. I, we were
gone.
Q. Gone where?
A. Around the block. Maybe it was more like three or four blocks, but we
were gone before that car or truck or moved. Before the truck moved we were
gone. So maybe she’s over thinking, you know, just like sometimes women do.
I’m not meaning like that, but you, when you, you’re mad, you know what I mean,
you’re fighting, you’re upset, you’re angry. She was over thinking maybe I don’t
know, but that – the truck did not move before we left.
Q. But it moved after?
A. Apparently, yes.
The prosecutor next questioned defendant on cross-examination about Shaw’s statements,
as follows:
Q. Do you know that [Shaw] gave a statement to police?
A. I don’t know.
Q: You don’t know?
A. No.
Q. You were made aware—we watched the footage and the officer told you
that your wife had made a statement to [the] police saying she saw you driving.
A. Well my wife told me she did not make a statement.
* * *
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Q. And if Deputy Carrie Duva[1] of the St. Clair County Sherriff’s
Department indicates that your wife did give a statement saying that she did see
you driving and she was mad at you because you were drinking and insisted on
driving the car you would say that’s, you’re saying that’s a lie?
A. I don’t know if she gave a statement or not. It’s – I’m just going by what
I was told.
* * *
Q. Mere, [sic] if [Shaw] told Deputy Carrie Duva that she threw the keys
at you when she was mad at you because you were insisting on driving would that
be a lie?
A. I don’t remember her throwing the keys at me, no.
The record demonstrates that Shaw spoke to the police after defendant’s truck was stopped
and defendant was arrested. The record is void of any continuing danger. Thus, Shaw was not
speaking to the police to meet an ongoing emergency. Rather, Shaw’s statements recounted the
events which led to defendant’s arrest. Thus, the primary purpose of Shaw’s statements to the
police was to establish or prove the events that led to defendant’s arrest. Therefore, Shaw’s
statements were testimonial under the standard set forth in Davis.
The Confrontation Clause 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. Walker, 273 Mich App at 60-61. Shaw did not appear
at trial, defendant did not have a prior opportunity to cross-examine her, and there was no evidence
presented that Shaw was unavailable to testify. The prosecution did not assert that Shaw invoked
spousal immunity or that her statements were admissible under any hearsay exception.
On appeal, the prosecution argues that the questions regarding Shaw’s statements to the
police did not violate defendant’s right to confrontation because the statements were not offered
as substantive evidence, but rather, to attack defendant’s credibility. The Confrontation Clause
only applies to testimonial statements used as substantive evidence in a criminal prosecution.
People v Nunley, 491 Mich 686, 697-698; 821 NW2d 642 (2012) (quotation marks and citations
omitted). The use of testimonial statements for the purpose of impeachment or to otherwise attack
the credibility of a witness does not violate the Confrontation Clause. People v Fackelman, 489
Mich 515, 528; 802 NW2d 552 (2011); See also Tennessee v Street, 471 US 409, 413-414; 105 S
Ct 2078; 85 L Ed 2d 425 (1985) (holding that evidence admitted for impeachment purposes does
not violate the Confrontation Clause). Thus, the Confrontation Clause does not “bar the use of
out-of-court testimonial statements for purposes other than establishing the truth of the matter
asserted.” People v Putman, 309 Mich App 240, 246; 870 NW2d 593 (2015).
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Deputy Carrie Duva did not testify during the lower court proceeding.
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We need not decide, however, whether the prosecutor properly used Shaw’s statements to
the police to impeach the credibility of defendant and Smith, rather than as substantive evidence,
because defendant has failed to demonstrate that the alleged error affected his substantial rights.
Defendant argues that the error affected the outcome of the proceeding because it undermined his
defense that he was not driving the truck and made him look like a liar. We disagree.
While defendant denied that he was driving when his truck was pulled over, the evidence
demonstrated that he was the driver of the truck. Hilton, Engel, Pearson, Deputy Tuzinowski, and
St. Clair County Sheriff’s Deputy Susan Westrick each testified that there was only one person in
the truck. Deputy Tuzinowski and Deputy Westrick both testified that defendant exited the truck
from the driver’s seat when he was pulled over. Additionally, defendant informed St. Clair County
Sheriff’s Deputy Stoyan that he “had to get out of there” because “four or five guys” started
“beating him up.” When defendant was arrested, he had a blood alcohol level of .078, and tested
positive for cocaine and benzoylecgonine. At trial, defendant admitted that he was intoxicated
prior to his arrest and that, throughout the day, he snorted cocaine and consumed eight to nine, 16-
ounce beers. Defendant, Smith, and Justin Breger each testified that defendant was sleeping in his
truck prior to being arrested because he “had too much to drink.” Furthermore, defendant admitted
that he drove to the festival with a suspended license. Deputy Stoyan confirmed that defendant
did not have a valid license in a database run by the Secretary of State. Additionally, the jury was
instructed that the attorney’s questions and arguments are not substantive evidence. Therefore,
defendant is not entitled to a new trial because the testimony regarding Shaw’s statements to the
police did not affect the outcome of the proceeding and did not result in the conviction of an
actually innocent defendant.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues, in the alternative, that he is entitled to a new trial because his trial
counsel was ineffective for failing to object to the prosecutor’s questions about Shaw’s statements
to the police. We disagree.
To preserve a claim of ineffective assistance of counsel for appellate review, a defendant
must move in the trial court for a new trial or for a Ginther hearing. People v Lopez, 305 Mich
App 686, 693; 854 NW2d 205 (2014); see People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Failure to move for a new trial or for a Ginther hearing limits this Court’s review to mistakes that
are apparent in the appellate record. People v Foster, 319 Mich App 365, 390; 901 NW2d 127
(2017) (citations omitted). “If the record does not contain sufficient detail to support defendant’s
ineffective assistance claim, then he has effectively waived the issue.” Id. Defendant did not move
in the trial court for a new trial or a Ginther hearing. Therefore, review is limited to the existing
record. Foster, 319 Mich App at 390.
Whether a defendant has been denied the effective assistance of counsel is a mixed question
of law and fact. People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019). This Court
reviews questions of law de novo and a trial court’s findings of fact for clear error. Id. “Clear
error exists when the reviewing court is left with the definite and firm conviction that a mistake
has been made.” People v Thompson, 314 Mich App 703, 720; 887 NW2d 650 (2016).
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The effective assistance of counsel is presumed, and a defendant bears the burden to
overcome the strong presumption that the assistance of his counsel was sound trial strategy. People
v Rosa, 322 Mich App 726, 741; 913 NW2d 392 (2018); see also People v Jackson, 313 Mich App
409, 431; 884 NW2d 297 (2015) (citation omitted). To establish the ineffective assistance of
counsel, a defendant must establish that “ ‘(1) the performance of his counsel was below an
objective standard of reasonableness under prevailing professional norms and (2) a reasonable
probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the
proceedings would have been different.’ ” Rosa, 322 Mich App at 74, quoting People v Sabin (On
Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). However, counsel is not
ineffective for failing to raise a meritless or futile objection. People v Ericksen, 288 Mich App
192, 205; 793 NW2d 120 (2010).
While defendant’s trial counsel failed to object to the prosecutor’s questions about Shaw’s
statements to the police, counsel’s performance was not below an objective standard of
reasonableness. The decision not to object to the prosecutor’s questioning regarding Shaw’s
statements was likely a strategic decision to avoid drawing undue attention to the testimony.
Alternatively, defendant’s trial counsel may have opted not to object to the statements because
neither Smith nor defendant provided any detailed answer to the prosecutor’s questions or
indicated that they had any significant knowledge of Shaw’s statements. “The fact that defense
counsel’s strategy may not have worked does not constitute ineffective assistance of counsel.”
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). Additionally, as
previously discussed, there is not a reasonable probability that the outcome of the proceeding
would have been different had defendant’s trial counsel objected to the line of questioning.
Therefore, defendant failed to demonstrate that his trial counsel’s performance was objectively
unreasonable or that he was prejudiced by his counsel’s failure to object to the prosecutor’s
questioning regarding Shaw’s statements to the police.
Affirmed.
/s/ David H. Sawyer
/s/ Mark T. Boonstra
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