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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 17, 2022
Plaintiff-Appellee,
v No. 353734
Allegan Circuit Court
DENEAL LEE SMITH, LC No. 18-022225-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and K. F. KELLY and SWARTZLE, JJ.
PER CURIAM.
A jury convicted defendant, Deneal Lee Smith, of two counts of armed robbery,
MCL 750.529, and one count of fourth-degree fleeing and eluding a police officer,
MCL 257.602a(2).1 The trial court sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to concurrent terms of 30 to 45 years’ imprisonment for each armed robbery
conviction, and 2 to 15 years’ imprisonment for the fleeing and eluding conviction. Defendant
appeals his convictions as of right, claiming that the trial court violated his right to self-
representation, raising a number of evidentiary issues, and asserting ineffective assistance of
counsel. Finding no error requiring reversal, we affirm defendant’s convictions.
I. BASIC FACTS AND PROCEEDINGS
On October 15, 2018, at approximately 8:41 p.m., the Clark gas station on 10th Street in
Martin, Michigan, was robbed. The clerk testified at defendant’s trial that he looked up at the
sound of the door chime and saw a gun pointed at his head. The robber demanded that the clerk
give him all the money from the register, and the clerk complied. The clerk described the robber
as a black male, with a black shirt around his face, wearing black sunglasses and gray gloves. The
robber grabbed the money and a black plastic bag that he had brought with him. The robber left
1
The jury acquitted defendant of three counts of possession of a firearm during the commission
or attempted commission of a felony (felony-firearm), MCL 750.227b, and one count of felon in
possession of a firearm, MCL 750.224f.
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the store, and the gas station’s manager, who had been in his office doing paperwork, followed
him, hopped into his car, and began to pursue the robbery suspect, who ran north through some
bushes and got into a car parked in a driveway just north of the gas station. A call about the robbery
went out from dispatch at approximately 8:42 p.m. Officers from Otsego Police Department,
Allegan County Sheriff’s Department, and the Michigan State Police (MSP) responded.
According to the gas station manager, the suspect led him on a high-speed chase down
local roads and onto US 131. At some point, the manager wrote the license plate of the fleeing car
on his arm. When the suspect led the manager onto northbound US 131, the manager saw Otsego
Police Officer Michael Gudith sitting in his patrol car in the median, watching southbound US 131
for any sign of the suspect. The manager stopped and gave Officer Gudith a description of the
suspect’s car and the car’s license plate number, and told him that the suspect was headed
northbound on US 131. Officer Gudith got onto northbound US 131 and informed other units that
the suspect was last seen “northbound from the 106th area in a Chevy Impala.” Officer Gudith
caught up with the suspect’s car, observed that the license plate number was identical with the one
the store manager had given him, and notified other units that he was following the suspect and of
their location. The suspect pulled off at Exit 55, the exit for Martin, then drove over the highway
and down the ramp to merge onto southbound US 131. Officer Gudith, Allegan County Sheriff’s
Deputy William Greene, and MSP Trooper Michael Shaw followed, lights and sirens activated.
The suspect pulled onto the shoulder of US 131, slowed almost to a stop, but then pulled back into
the lane of travel, repeating this weaving motion several times for approximately two miles.
Eventually, the suspect pulled onto the right shoulder of the highway and stopped. The suspect,
who turned out to be defendant, was arrested, transported to the Allegan County Sheriff’s
Department, and eventually charged with two counts of armed robbery, one count each of fourth-
degree fleeing and eluding and felon-in-possession of a firearm, and three counts of felony-firearm.
After defendant left the scene, Allegan County Sheriff’s Deputy William Greene searched
defendant’s car, collecting and placing into evidence a pair of black sunglasses; a black, long-
sleeved thermal top; and a pair of gray knit gloves; all items that were consistent with what Deputy
Greene had been informed the robber was wearing. He stayed with defendant’s car until it was
towed to the Sheriff Department’s secure garage. At about midnight, Allegan County Sheriff’s
Deputy Ryan Rewa discovered a black plastic bag 15 to 20 feet from the edge of the roadway in a
cornfield, approximately a quarter mile south of the Clark station. He called his find into dispatch,
who turned the information over to Deputy Greene. Deputy Greene came to the location, used a
pair of plastic gloves to collect the bag, and placed it into an evidence bag.
Allegan County Sheriff’s Department Detectives Mark Lytle and Craig Gardiner searched
defendant’s car again on October 16, looking specifically for a gun and for the money stolen from
the gas station. Among the items searched was a pair of jeans, the pockets of which Detective
Lytle turned inside out, finding a few dollars, but nothing more, and a red hoodie sweatshirt, which
Detective Lytle picked up by the hood and ran his hands down. No evidence was recovered. On
October 24, Allegan County Sheriff’s Deputy Cory Harris, an evidence technician, searched
defendant’s car again, as a result of a mix-up. Deputy Harris’s superior had intended for him to
process a stolen car that had been recovered from Holland to determine if there was any evidence
indicating who stole the car. The stolen car was a brown (or gold) Chevrolet Malibu, but Deputy
Harris received instructions to “tech” the silver (or gray) Chevrolet Impala, which happened to be
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defendant’s car. As he was processing defendant’s car, Deputy Harris found $232 dollars wadded
up and shoved into the red hoodie on the back seat.
The gas station clerk, the store manager, and all of the law enforcement officials involved
in the pursuit and arrest of defendant, in the subsequent investigation of the robbery, and in the
search of defendant’s car, testified at defendant’s trial. The jury also heard from two experts who
analyzed information obtained from defendant’s phone and concluded that he was in the area of
the robbery at the time the robbery occurred. The jury also heard from forensic scientists who
concluded from their analysis of DNA obtained from the handle of the black plastic bag found by
Deputy Rewa that defendant had contributed 70% of the DNA obtained and that it was “at least
150 septillion times more likely” that the DNA on the plastic bag came from defendant and three
random individuals than that it came from four random individuals.
Testifying on his own behalf, defendant explained that he was driving from Kalamazoo,
where he had spent the weekend with his brother, back to his home in Grand Rapids, when he
stopped at the Dollar Store in Martin, near the gas station, to purchase something to repair his tire,
snacks, and a two-pack of cigars. In the parking lot, he emptied the tobacco from one of the cigars
and stuffed the wrapper with marijuana. He was headed back to Kalamazoo on southbound US
131 to pick up the medical marijuana that he had purchased earlier that day but accidently left at
his brothers. However, he remembered that his brother would not be home and that he did not
have a key to his brother’s apartment. Consequently, he exited the highway, drove over the
overpass, and then onto the ramp that would take him northbound on US 131. As he was merging
onto US 131, he saw several police cars behind him with their lights on. Unaware of having
violated a traffic law, defendant said that he was high, scared, and hysterical, and he drove on. He
eventually stopped, got out of the car, and went straight to the police. Defendant denied that the
man in the gas station surveillance video was him. Although he weighed 235 pounds at the time
of the trial, at the time of the robbery, he weighed only 190 pounds; the clothes that the police
retrieved from his vehicle were his, but they would not fit him now. He denied owning a mask,
tying a shirt around his face, throwing anything out the window of his car, or having $232 in the
pocket of his red hoodie. Asked how he explained his DNA on the black plastic bag, defendant
explained that Sergeant Greene collected the bag and put it with other items that the sergeant had
collected from defendant, and his DNA transferred from these items to the bag.
After closing arguments and jury instructions, the jury required less than two hours to
return guilty verdicts for the armed robbery and fleeing and eluding charges, and to acquit
defendant on the remaining charges. Defendant was sentenced as indicated, and this appeal
followed.2
II. RIGHT TO SELF-REPRESENTATION
Defendant first argues that the trial court violated his constitutional right to self-
representation. We disagree. We review de novo whether a defendant waived his right to counsel,
2
On February 15, 2022, defendant moved to remand to the trial court to expand the record. We
denied the motion. People v Smith, unpublished order of the Court of Appeals, entered February
22, 2022 (Docket No. 353734).
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but review for clear error the factual findings underlying the trial court’s decision. People v
Williams, 470 Mich 634, 640-641; 683 NW2d 597 (2004).
“The right of self-representation is guaranteed by both the Michigan Constitution, Const
1963, art, § 13, and by statute, MCL 763.1.” People v Dunigan, 299 Mich App 579, 587; 831
NW2d 243 (2013). It is also “implicitly guaranteed by the Sixth Amendment of the United States
Constitution.” Id.
Upon a defendant’s initial request to proceed pro se, a court must determine that
(1) the defendant’s request is unequivocal, (2) the defendant is asserting the right
knowingly, intelligently, and voluntarily through a colloquy advising the defendant
of the dangers and disadvantages of self-representation, and (3) the defendant’s
self-representation will not disrupt, unduly inconvenience, and burden the court and
the administration of the court’s business. [People v Russell, 471 Mich 182, 190;
684 NW2d 745 (2004).]
The trial court must also satisfy the requirements of MCR 6.005(D), id. at 190-191, which
states that the trial court may not permit the defendant’s initial waiver of the right to counsel
without:
(1) advising the defendant of the charge, the maximum possible prison
sentence for the offense, any mandatory minimum sentence required by law, and
the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer
or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.
[MCR 6.005(D).]
Technical knowledge of legal matters “simply has no relevance to an assessment of a
knowing exercise of the right to self-representation.” People v Brooks, 293 Mich App 525, 539-
539; 809 NW2d 644 (2011), judgment vacated in part on other grounds, appeal denied in part on
other grounds, 490 Mich 993 (2012). A request for self-representation does not become equivocal
as a matter of law when accompanied by a request for stand-by counsel. People v Hicks, 259 Mich
App 518, 527-528; 675 NW2d 599 (2003). The trial court should rule in favor of denying
defendant’s request for self-representation when there is uncertainty as to whether the waiver
requirements have been satisfied. Russell, 471 Mich at 191. “[I]t is a long-held principle that
courts are to make every reasonable presumption against a waiver of a fundamental constitutional
right, including the waiver of the right to the assistance of counsel.” Id. at 188.
Defendant’s request to represent himself came at the end of the second day of pretrial an
evidentiary hearing, after the trial court had denied his motion to suppress statements made at his
arrest and the cash found in his car. At the conclusion of the hearing, the trial court asked if there
were any other issues to address before setting a trial date. Defendant indicated that he wanted to
speak to the court. After a brief consultation with defendant in the jury room, defense counsel
stated to the trial court that defendant wanted to represent himself. Asked by the trial court if he
wanted to represent himself, defendant said that he did, and would like his current, retained
attorney “to be co-counsel.” In response to the trial court’s questioning, defendant indicated that
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he did not believe that his attorney saw the evidence in the same way that he did and would not
cross-examine the prosecution’s witnesses in a way that defendant saw fit. Defendant stated that
he could prove that the money was planted in his car; defendant reasoned that prior searches had
not uncovered the money, so it had to come from somewhere. Defendant explained that if he had
the money he would hire another attorney, but he gave all his money to his current attorney and
did not have any more.
The trial court denied defendant’s request to represent himself, reasoning without
elaboration that defendant was not “in a position” to understand the risks of self-representation
and did not have the ability to represent himself. The trial court gave defendant a choice between
keeping his current attorney or getting a court-appointed attorney. Defendant stated that he would
be willing to take the court-appointed attorney that he had before he hired his current attorney, but
continued to insist that he believed he could represent himself.
Because the trial court did not explain the risks of self-representation to defendant, the
basis for the trial court’s conclusion that defendant did not understand them is unclear from the
record. To the extent that the trial court’s determination that defendant was not in a position to
understand the disadvantages of self-representation implicated defendant’s comprehension,
“[c]redibility is crucial in determining a defendant’s level of comprehension, and the trial court is
in the best position to make this assessment.” Williams, 470 Mich at 640 (quotation marks and
citations omitted). The record is equally unclear regarding the basis for the trial court’s
determination that defendant lacked the ability to represent himself. Assuming that defendant’s
lack of ability referred to his competence, competence is a pertinent consideration when
determining whether defendant knew what he was doing and chose to represent himself with “eyes
open.” People v Anderson, 398 Mich 361, 368; 247 NW2d 857 (1976). However, “competence
does not refer to legal skills, for his technical legal knowledge, as such, was not relevant to an
assessment of his knowing exercise of the right to defend himself.” Id. (cleaned up).
The prosecution argues on appeal that defendant’s request to represent himself was
equivocal. We agree. If a defendant’s request to represent himself or herself is not unequivocal,
a trial court is not required to inquire further into the matter. See id. (stating that “once the
defendant has unequivocally declared his desire to proceed Pro se the trial court must determine
whether defendant is asserting his right knowingly, intelligently, and voluntarily”). The equivocal
nature of defendant’s request to represent himself is evinced by his statement that he would hire
another attorney if he could afford one, but he had spent all of his money on his current attorney.
Notwithstanding defendant’s assertions that he could represent himself, this response indicated
that he preferred to be represented by a retained attorney, but could not afford one. Given the
choice between his current attorney and a court-appointed attorney, defendant’s response that he
would be willing to be represented by his prior court-appointed attorney further suggests
defendant’s preference for representation. It also might explain why the trial court did not advise
defendant of the risks involved in self-representation, among other things. See MCR 6.005(D).
Given defendant’s equivocal assertion of the right to represent himself, deferring to the
trial court’s credibility determinations regarding defendant’s ability to comprehend the risks of
self-representation and his competence to represent himself, and mindful of the presumption
against waiver of the right to counsel, see Russell, 471 Mich at 188, we affirm the trial court’s
determination that defendant did not validly waive his constitutional right to counsel.
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III. DUE-PROCESS RIGHTS
Defendant next contends that the trial court’s evidentiary decisions violated his right to a
fair trial by depriving him of the meaningful opportunity to present a defense and to confront the
witnesses against him. We disagree.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
See People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). “A trial court abuses its
discretion when its decision falls outside the range of principled outcomes.” People v Feezel, 486
Mich 184, 192; 783 NW2d 67 (2010) (quotation marks and citation omitted). A decision on a
close evidentiary question ordinarily cannot be an abuse of discretion. See People v Blackston,
481 Mich 451, 467; 751 NW2d 408 (2008). Preliminary decisions involving questions of law,
such as whether a rule of evidence or a statute precludes admission of the evidence, are reviewed
de novo. See Gursky, 486 Mich at 606. A trial court necessarily abuses its discretion when it
admits evidence that is inadmissible as a matter of law. See id. A preserved error in the admission
or exclusion of evidence is not grounds for reversal unless it appears more probable than not that
the error was outcome-determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999).
Defendant asserts that the trial court violated his right to a fair trial3 by: (1) prohibiting
defendant from cross-examining Detective Gardiner about personal knowledge he claimed to have
when drafting search warrant affidavits; (2) threatening defense counsel to allow the prosecutor to
present evidence of defendant’s parole status if she questioned Detective Gardiner about planting
evidence; and (3) instructing the jury that a disputed search was lawful. We will address each of
these assertions of error in turn.
Detective Gardiner was the lead detective in this case. He retired before defendant’s trial,
but was the officer who submitted the four search warrant affidavits in this case. In the two
affidavits which defendant finds issue, Detective Gardiner attested to observations that he did not
personally make; rather, he relied on information obtained from officers who had investigated the
robbery. Defense counsel sought to impeach the detective by using the affidavits to establish that
he lied under oath because, as the affiant, he attested to observations that he had not personally
made. The affidavit used to obtain a search warrant on October 16 stated that the gas station
manager advised the affiant, i.e., Detective Gardiner, that he was certain that the person he
followed in his car was the robbery suspect, but defense counsel elicited testimony from
Detective Gardiner that he did not remember talking to the manager on October 16. Defense
counsel also asked Detective Gardiner about the statement in a second affidavit that the affiant
interviewed the manager, who said that he followed the suspect’s car onto US 131 and wrote the
license plate number on his arm. After the prosecutor objected to defense counsel’s attempt to
impeach the detective with statements that other officers had given him, the trial court prohibited
defense counsel from pursuing her line of inquiry, explaining, “The issue is if it’s a statement that
3
“Every defendant has a due process right to a fair trial[.]” People v Rose, 289 Mich App 499,
517; 80 NW2d 301 (2010). In addition, “the right to present a defense is a fundamental element
of due process.” People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006) (cleaned up).
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he got from another officer then that officer is the one that should be questioned about it, not this
officer.”
Detective Gardiner acknowledged on direct examination, as well as on cross-examination,
that he based his affidavit in part on information gathered by other officers, and that “search
warrant affidavits are basically a combined, joint effort where you rely on other officer’s
information.” Defendant did not challenge this testimony, nor has he presented on appeal either
argument or evidence establishing that this practice is improper and constitutes lying under oath.
Assuming for the sake of argument that the practice is inappropriate, the record does not support
defendant’s claim that the trial court violated his right to present a complete defense by disallowing
additional cross-examination of the detective about the affidavits. Defense counsel’s goal at trial
was to impeach the detective’s credibility by establishing that he lied under oath on the affidavits.
The trial court’s decision did not undermine defendant’s defense because, as shown, the jury heard
testimony that would have allowed it to reach the conclusion that defendant sought.
Next, defendant argues that the trial court deprived him of a fair trial by constraining
defendant’s cross-examination about the multiple searches of his car by threatening that
questioning the searches would open the door to the prosecution’s introduction of evidence that
defendant was on parole for armed robbery at the time the charged armed robbery was committed.
The record does not support this claim of error.
One of defendant’s theories of defense was that someone planted the cash in his car
between the October 16 search by Detectives Lytle and Gardiner, which turned up nothing, and
the October 24 search by Deputy Harris, which turned up the cash. Video from the department’s
garage showed that Detective Gardiner went into the car early on October 23, and defense counsel
wanted to question Detective Gardiner about this incident. Although skeptical of the relevance of
Detective Gardiner’s October 23 entry into defendant’s car, the trial court nevertheless allowed
defense counsel to cross-examine the detective about it. Defense counsel established through her
cross-examination of Detective Gardiner that he did not search defendant’s car on October 23, but
briefly went into it to get some information from a McDonald’s receipt. Defense counsel used this
testimony during her closing argument to imply that cash was planted in the car on the morning of
October 23, to be discovered later that evening by Deputy Harris. Clearly, the trial court’s ruling
did not prevent defendant from presenting to the jury evidence and argument relevant to one of his
theories of defense.
Lastly, defendant asserts that the trial court erred by instructing the jury that the searches
of defendant’s car were lawful. Because defendant failed to preserve this issue for review with a
timely objection on the record, our review is for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 764-765, 772; 597 NW2d 130 (1999). “An error is plain if it is
‘clear or obvious,’ and it affects substantial rights if it ‘affected the outcome of the lower court
proceedings.’ ” People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019), quoting Carines,
460 Mich at 764-765.
The trial court did not plainly err when it instructed the jury that the searches of defendant’s
car were lawful. Before trial, defendant challenged the lawfulness of Deputy Harris’s search of
defendant’s car and sought to suppress the cash recovered during that search. The trial court ruled
that the deputy’s search was lawful because defendant was on parole, and one of the conditions of
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his parole was that he and his property were subject to warrantless searches. Defendant has not
challenged this ruling on appeal.4 Accordingly, the trial court did not plainly err by instructing the
jury that the searches were lawful. Nor has defendant established that the instruction undermined
his theory that an officer planted the cash in his car between October 16 and October 24. The trial
court’s instruction did not preclude the jury’s finding that the money was planted during a lawful
entry into defendant’s car.
For the foregoing reasons, we conclude that defendant has failed to establish that the trial
court’s evidentiary decisions constituted abuses of the trial court’s discretion or violations of his
right to a fair trial. Defendant was able to use affidavits in an attempt to impeach Detective
Gardiner’s credibility, as well as to cross-examine the detective regarding his October 23 entry
into defendant’s impounded car. The trial court’s instruction about the lawfulness of the searches
of defendant’s car did not bar the jury from concluding that, during one of those lawful entries,
someone planted cash in defendant’s red hoodie.
IV. HEARSAY
Finally, defendant argues that the trial court committed plain error affecting his substantial
rights by allowing the prosecutor to present extensive hearsay testimony, and that his defense
counsel rendered ineffective assistance by failing to object to the hearsay. We disagree.
As defendant acknowledges, because this claim of error comes to us unpreserved, our
review is limited to plain error affecting defendant’s substantial rights. As already indicated, “[a]n
error is plain if it is ‘clear or obvious,’ and it affects substantial rights if it ‘affected the outcome
of the lower court proceedings.’ ” Miller, 326 Mich App at 725-726, quoting Carines, 460 Mich
at 764-765. Whether a defendant has been deprived of the effective assistance of counsel presents
a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id. “Clear error exists when the reviewing court is left with
the definite and firm conviction that a mistake has been made.” People v Anderson, 284 Mich App
11, 13; 772 NW2d 792 (2009) (quotation marks and citation omitted). Because defendant failed
to preserve this issue for appellate review by moving for a new trial or an evidentiary hearing to
develop the record, People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000), our review
is limited to mistakes apparent on the record, People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012).
An out-of-court statement offered into evidence to prove the truth of the matter asserted is
hearsay. MRE 801(c). Hearsay is not admissible except as provided by the rules of evidence.
MRE 802. “There is no exception to the hearsay rules for statements transmitted by a police radio.
These statements were not admissible merely because they were transmitted by a police radio.”
People v Eady, 409 Mich 356, 361; 294 NW2d 202 (1980). In some instances, however, radio
transmissions offered not to prove the truth of the matter asserted, but to show the motive of
officers for pursuing a particular vehicle and arresting a particular defendant, are admissible. See
4
In his motion to remand, defendant questions the motives for the search by Deputy Harris but
does not appear to challenge the legality of the search itself.
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People v Pawelczak, 125 Mich App 231, 235; 336 NW2d 453 (1983). In addition, “even where
evidence is hearsay its admission is harmless error where the same facts are shown by other
competent evidence.” People v Lewis, 168 Mich App 255, 268; 423 NW2d 637 (1988).
Much of the testimony to which defendant objects arguably fell under the present sense
impression or the excited utterance exceptions to the hearsay rule. The gas station managers
statements to Officer Gudith were excited utterances, statements “relating to a startling event or
condition made while the declarant was under the stress or excitement caused by the event or
condition.” MRE 803(2). The “startling event or condition” being the high-speed chase of the
robbery suspect. Likewise, relaying information that another officer called into dispatch while
actively pursuing a robbery suspect might be considered a present sense impression, “[a] statement
describing or explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter.” MRE 803(1). In this case, the “event or condition” would
be the active pursuit of the suspect. Further, given defendant’s denial that he robbed the gas station,
and his theory that the gas station manager lost sight of the robber during the chase and mistakenly
fell in behind defendant, thinking that he was the robber, the radio transmissions arguably were
admissible to show why officers pursued defendant’s silver Chevrolet Impala and arrested
defendant. See Pawelczak, 125 Mich App at 235.
But even if the testimony which defendant finds objectionable was inadmissible hearsay
and the trial court plainly erred by admitting it, its admission was harmless, given that the same
facts were established by evidence that was not hearsay. Defendant objects to testimony from
Whitney Wisner, Deputy Director of Allegan County Central Dispatch, regarding what the gas
station manager and Officer Gudith said about the description of the robbery suspect’s car and its
license plate number. However, the same facts were available from the recording of the 911 call,
which was played for the jury without objection from defendant. It was also available from Officer
Gudith and the gas station manager, both of whom testified at trial. Defendant objects to the
dispatch operator’s report that Deputy Rewa found a black plastic shopping bag. However, the
same information was available from Deputy Rewa, who testified at trial. Defendant further
objects to hearsay testimony related to Deputy Harris’s search of the wrong car, but evidence
regarding the erroneous search was presented through the trial testimony of those involved: Deputy
Harris, Sergeant Morgan Sullivan, and Lieutenant Bretton Ensfield. Lastly, defendant objects to
Deputy Greene’s statement that the black thermal shirt he found in defendant’s car was consistent
with Deputy James Anderson’s description of the face covering the gas station’s surveillance video
showed the robber wearing. Again, evidence regarding the type of facial covering the robber was
wearing was available to the jury through Deputy Anderson’s testimony and the surveillance video
of the robbery, which the jury saw twice, and could be compared to the physical evidence collected
from defendant’s car.
As to defendant’s claim of ineffective assistance of counsel, effective assistance of counsel
is presumed and defendant bears a heavy burden to prove otherwise. People v Rockey, 237 Mich
App 74, 76; 601 NW2d 887 (1999). To establish ineffective assistance of counsel, defendant must
show that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and that there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different. See Smith v Spisak, 558 US 139,
149; 130 S Ct 676; 175 L Ed 2d 595 (2010); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d
136 (2012). Defendant has failed to establish either prong.
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As already indicated, much of the testimony to which defendant objects was admissible as
present sense impression or excited utterances exceptions to the hearsay rule, or admissible to
show why officers pursued defendant’s car and arrested defendant. MRE 803(1) and (2); see
Pawelczak, 125 Mich App at 235. Any objection would have been futile, and counsel is not
ineffective for raising futile arguments. See People v Gist, 188 Mich App 610, 613; 470 NW2d
475 (1991) (holding that defense counsel was not ineffective for failing to object when an objection
would have been pointless). Further, even if counsel’s performance did fall below an objective
standard of reasonableness under professional norms, because the facts conveyed by the alleged
hearsay were shown by other competent evidence, defendant cannot show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Trakhtenberg, 493 Mich at 51. Accordingly, defendant’s claim of ineffective
assistance must fail.
V. CONCLUSION
There were no errors requiring reversal. We affirm.
/s/ Michael J. Riordan
/s/ Kirsten Frank Kelly
/s/ Brock A. Swartzle
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