PEOPLE OF MI V KENNETH PAUL WITT
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TATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 14, 1997
Plaintiff-Appellee,
v
No. 192588
Macomb Circuit Court
LC No. 95-002392-FC
KENNETH PAUL WITT,
Defendant-Appellant.
Before: Saad, P.J., and Holbrook, Jr., and Doctoroff, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of receiving and concealing stolen property
valued over $100, MCL 750.535; MSA 28.803. As an habitual offender, third offense, MCL 769.11;
MSA 28.1083, defendant was sentenced to serve two to ten years in prison. He appeals as of right
and we affirm.
Defendant first argues that the trial court abused its discretion in denying his motion for a
continuance in order to ascertain the identity of the prosecution’s expert witness and to obtain an expert
witness to testify for the defense. We disagree with defendant’s contention that he was entitled to a
continuance in order for counsel to adequately prepare this case. Unlike the case cited by defendant,
People v Storch, 176 Mich App 414, 426; 440 NW2d 14 (1989), which was a complicated case that
lasted four days and involved over twenty witnesses, this case involved only three witnesses and lasted
only one day. Counsel had adequate time to prepare defendant’s case.
Considering all of the factors set forth in People v Williams, 386 Mich 565, 578; 194 NW2d
337 (1972), we find that the trial court did not abuse its discretion in denying defendant’s motion for a
continuance on the morning of trial. Moreover, we find that reversal is not warranted because
defendant has not established prejudice from the denial of his motion. People v Sinistaj, 184 Mich
App 191, 201; 457 NW2d 36 (1990). Despite the fact that counsel was unaware of the identity of the
prosecution’s expert witness until trial, he was able to adequately cross-examine the witness on his lack
of experience with the particular machine at issue in this case. Furthermore, we refuse to speculate that
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there was an expert who held the opinion that the stolen machine was worth less than $100 in order to
find that defendant was prejudiced by the lack of expert testimony on behalf of the defense.
Next, defendant argues that he was denied the effective assistance of counsel because counsel
did not ascertain the identity of the prosecution’s expert witness prior to trial and because he did not
attempt to procure expert testimony on behalf of the defense. Defendant’s motion in this Court to
remand the matter to the trial court for an evidentiary hearing was denied, as was a rehearing on the
motion. This Court denied defendant’s remand motion because he failed to demonstrate by affidavit or
offer of proof the necessary facts to support his claim of ineffective assistance of counsel. MCR
7.211(C)(1)(a)(ii).
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that, but for the deficient
performance, the outcome of the trial would have been different. People v Pickens, 446 Mich 298,
312; 521 NW2d 797 (1994). Counsel is presumed to effective, and a defendant bears a heavy burden
to prove otherwise. People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). Here, while
we agree that, had counsel procured an expert to testify that the blower was valued at less than $100,
the outcome of defendant’s trial might have been different, we will not speculate that such a witness was
available to so testify. Defendant has failed to provide this Court with factual support for his claim.
Accordingly, defendant has failed to overcome the presumption that trial counsel was constitutionally
effective, and has failed to establish in this Court a right to remand for an evidentiary hearing. See
People v White, 411 Mich 366; 308 NW2d 128 (1981); People v Ginther, 390 Mich 436; 212
NW2d 922 (1973).
Defendant next argues that the trial court abused its discretion in determining that Patrick Brown
was qualified to render an expert opinion on the value of the stolen machine in this case. We disagree.
In exercising its discretion as to whether a witness should be considered an expert, the trial court should
not utilize an overly narrow test of qualifications. Id.; People v Whitfield, 425 Mich 116, 123; 388
NW2d 206 (1986). Defendant’s argument that Brown was not qualified as an expert because he
admitted that he had never worked with the specific type of gas blower involved in this case urges us to
find that the trial court should have used an overly narrow test of his qualifications. In light of Brown’s
experience selling other types of used blowers and his testimony regarding the procedures he followed
to determine an unfamiliar machine’s fair market value, the trial court did not abuse its discretion in
determining that he was qualified to give an opinion on the machine’s value.
Finally, defendant argues that his arrest was illegal because there was no probable cause to
support his detention and arrest. This argument is without merit. At the time of the detention and arrest,
Officer Teolis had probable cause to believe that defendant had committed an offense. Upon seeing
Officer Teolis, defendant quickly abandoned the bicycle he was riding and the blower he was carrying
on his back and climbed over a fence. He also took his shirt off, which could have been interpreted as
an attempt to change his appearance. Moreover, when Officer Teolis questioned defendant about why
he had left his bike and blower at the corner, defendant lied by denying having knowledge of what the
officer was talking about. Observing this unusual and suspicious behavior would warrant a reasonable
person to conclude that defendant had committed an offense involving the abandoned items. Therefore,
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there was probable cause to support
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defendant’s detention and arrest. People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996);
MCL 764.15; MSA 28.874.1
Affirmed.
/s/ Henry W. Saad
/s/ Donald E. Holbrook, Jr.
/s/ Martin M. Doctoroff
1
We also note that, even if we had found defendant’s detention or arrest illegal, there would be no
remedy to impose in this case, because no evidence was obtained as a result of the arrest. City of
Lansing v Hartsuff, 213 Mich App 338, 352; 539 NW2d 781 (1995). Defendant had abandoned
the blower in the street.
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