PEOPLE OF MI V CONRAD ALLEN FOSTER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 24, 1998
Plaintiff-Appellee,
v
No. 192819
Recorder’s Court
LC No. 95-007564
CONRAD ALLEN FOSTER,
Defendant-Appellant.
Before: O’Connell, P.J., and Gribbs and Smolenski, JJ.
MEMORANDUM.
Defendant was convicted of assault with intent to commit great bodily harm less than murder,
MCL 750.84; MSA 28.279, and felony-firearm, MCL 750.227b; MSA 28.424(2), and sentenced to
two to ten years and two years imprisonment, respectively. Defendant appeals as of right. We affirm.
Defendant claims that the trial court erred in denying his motion for a new trial on grounds that
audio tapes made of defendant to a 911 operator during the assault should have been made part of the
trial record and that his trial counsel was ineffective for failing to seek admission of the tapes. We do
not agree. The trial court did not abuse its discretion in denying defendant’s motion for new trial.
People v Jehnsen, 183 Mich App 305, 310-311; 454 NW2d 250 (1990).
Plaintiff asserts that the tapes were available at trial. However, even assuming arguendo that the
911 tapes in question have been lost or destroyed, defendant has failed to show that their loss requires
the vacation of his convictions and sentences. Defendant’s reliance on People v Austin, 76 Mich App
455; 257 NW2d 120 (1977), is misplaced. Austin is distinguishable from the instant case in several
important regards. First, unlike the defendant in Austin, defendant has failed to show that any loss of
the tapes constitutes an insurmountable impediment to appellate review The missing evidence in Austin
was essential to review and sustain defendant’s conviction; the defendant in Austin was convicted of
promoting pornography, but the allegedly pornographic materials were lost or destroyed. Here the
tapes were cumulative to trial testimony by both defendant and complainant as to the content of the
tapes. Second, the tapes in this case were never introduced into evidence or made part of an offer of
proof concerning their admissibility. Accordingly, the tapes are not part of the lower court record,
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unlike the exhibits lost in Austin. MCR 7.210(A)(1). Further, the loss of the tapes is at least partially
attributable to defendant in light of defendant’s failure to attempt to make them part of the record.
Under these circumstances, Austin does not provide support for the vacation of defendant’s convictions
and sentences.
Additionally, defendant has failed to show that the trial court erred in resolving his ineffective
assistance of counsel claim without first conducting an evidentiary hearing or that he is entitled to a
remand for such an evidentiary hearing. Defendant is not entitled to an evidentiary hearing in light of his
failure to explain the nature of the information contained on the tapes and how that information would be
both admissible and helpful in presenting a valid defense to the crimes charged. People v McMillan,
213 Mich App 134, 141-142; 539 NW2d 553 (1995). For these same reasons, defendant has failed
to show that trial counsel was ineffective. People v Pickens, 446 Mich 298, 303; 521 NW2d 797
(1994); People v Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997).
Finally, the trial court noted in its opinion that defendant testified that he deliberately obtained an
instrument of deadly force and that the knife previously obtained by the victim was in the bedroom at the
time of the assault. The trial court stated that it had observed during the trial that defendant was much
larger than the victim and that he was not injured in the confrontation. The trial court clearly indicated
that it did not believe defendant could have reasonably thought himself in any danger from the victim so
as to justify his using a gun to defend himself from her.
Affirmed.
/s/ Peter D. O’Connell
/s/ Roman S. Gribbs
/s/ Michael R. Smolenski
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