PEOPLE OF MI V MICHAEL GRESHAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 26, 2002
Plaintiff-Appellee,
v
No. 228723
Kent Circuit Court
LC No. 99-011190-FC
MICHAEL GRESHAM,
Defendant-Appellant.
Before: Owens, P.J., and Markey and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of two counts of first-degree
criminal sexual conduct, MCL 750.520b, felon in possession of a firearm, MCL 750.224f, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to twenty-three to seventy-five years’ imprisonment for the convictions
of two counts of first-degree criminal sexual conduct, two to ten years’ imprisonment for the
felon in possession of a firearm conviction, and two years’ imprisonment for the felony-firearm
conviction. We affirm.
Defendant contends that the trial court erred by not permitting him to present the
testimony of two witnesses, Lisa Upton and Vickie Clemons. However, the lower court record
clearly reveals that the factual predicate for this contention is faulty. The trial court ruled that
defendant could call Clemons as a witness if the prosecution did not. As for Upton, before the
trial court even had a chance to rule on whether defendant could call Upton as a witness,
defendant affirmatively indicated to the trial court that he would not call her as a witness in light
of testimony already given in the case by other witnesses. Thus, there was no error by the trial
court.
Defendant also argues that the trial court deprived him of a fair trial when it read a
stipulation specifically approved by defendant, which revealed the felony conviction that formed
the predicate for the felon in possession of a firearm charge. Because defendant specifically
approved the form of this stipulation, defendant extinguished any error on appeal. People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
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Defendant also argues that he was denied the effective assistance of counsel. We
disagree. Because defendant failed to move for a new trial or a Ginther1 hearing based on
ineffective assistance of counsel, our review of this issue is limited to mistakes apparent on the
existing record. People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999).
In order for this Court to reverse an otherwise valid conviction due to the ineffective
assistance of counsel, the defendant must establish that his counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and that the
representation so prejudiced the defendant that, but for counsel’s error, the result of the
proceedings would have been different. People v Noble, 238 Mich App 647, 662; 608 NW2d
123 (1999), citing People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” Id. Furthermore, the
defendant must overcome a strong presumption that the assistance of counsel was sound trial
strategy, because this Court will not second-guess counsel regarding matters of trial strategy,
even if counsel was ultimately mistaken. People v Rice (On Remand), 235 Mich App 429, 444445; 597 NW2d 843 (1999). Nor will it assess counsel’s competence with the benefit of
hindsight. Id. at 445.
Defendant first claims that he was deprived the effective assistance of counsel when his
trial counsel failed to move for a mistrial after the trial court read the stipulation and erroneously
informed the jury that defendant had a prior felony conviction for possessing cocaine and
improperly instructed the jury about the effect of the stipulation. First, we find that defendant
has failed to overcome the presumption that trial counsel’s decision to approve the stipulation
regarding defendant’s prior conviction was sound trial strategy, precluding any finding of
ineffective assistance of counsel. Id. Counsel could have made the decision that, given that the
jury would inevitably know that defendant had a felony conviction, it would be to defendant’s
benefit for the jury to know that this conviction was for cocaine possession, rather than leaving
the jury to speculate as to the nature of defendant’s prior conviction. Moreover, we find that
defendant was not prejudiced by the stipulation to admit evidence of defendant’s prior conviction
for cocaine possession because the evidence in the case was permeated by testimony that
defendant not only possessed cocaine, but was a cocaine dealer. In fact, defendant’s theory of
the case was that the victim engaged in consensual sexual relations with him in exchange for
cocaine he supplied. Accordingly, defendant was not denied the effective assistance of counsel.
In regard to defendant’s argument that trial counsel was ineffective for failing to object to
the trial court’s erroneous instruction to the jury that it must regard the stipulation as true, we
find that defendant has failed to demonstrate that trial counsel’s failure to object to this
instruction so prejudiced him that, but for counsel’s error, the result of the proceedings would
have been different. Noble, supra. In fact, during jury instructions, the trial court instructed the
jury that it was the sole and exclusive judges of the facts. Therefore, defendant has again failed
to demonstrate that he was denied the effective assistance of counsel.
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Defendant next claims that he was denied the effective assistance of counsel because his
trial counsel failed to timely disclose and subpoena Upton and Clemons as witnesses prior to
trial, when they were known witnesses and their testimony would have exonerated defendant of
the charges.2 However, “[d]ecisions regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App
74, 76; 601 NW2d 887 (1999). Failure to call witnesses constitutes ineffective assistance of
counsel only if it deprives the defendant of a substantial defense. People v Daniel, 207 Mich
App 47, 58; 523 NW2d 830 (1994). With respect to these witnesses, the record only indicates
that the content of their testimony would have been cumulative in light of the testimony already
presented through other witnesses. Given the cumulative nature of their testimony, the failure to
call these witnesses did not deprive defendant of a substantial defense. Id.
Last, defendant claims that his counsel was ineffective for failing to object to “obvious
hearsay testimony” from Patricia McGowan. However, defendant fails to cite any legal authority
in support of his argument. “An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment [of an issue] with little or no citation of supporting authority.” People v Watson, 245
Mich App 572, 587; 629 NW2d 411 (2001), quoting People v Kelly, 231 Mich App 627, 640641; 588 NW2d 480 (1998). Failure to cite any supporting legal authority constitutes an
abandonment of this issue. Id.
Affirmed.
/s/ Donald S. Owens
/s/ Jane E. Markey
/s/ Christopher M. Murray
2
We also note that in support of this argument, defendant has attempted to expand the record on
appeal by attaching an investigation memorandum that was not part of the lower court record.
We do not consider the information contained in this memo because “it is impermissible to
expand the record on appeal.” People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499
(1999).
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