PEOPLE OF MI V NATHANIEL VANCE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 13, 2004
Plaintiff-Appellee,
v
No. 244072
Kent Circuit Court
LC No. 02-000484-FH
NATHANIEL VANCE,
Defendant-Appellant.
Before: Donofrio, PJ., and Griffin and Jansen, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction for felonious assault, MCL 750.82.
Defendant was sentenced to four to fifteen years’ imprisonment. On appeal, defendant argues
the trial court erred when it refused to grant defendant a new trial due to the underrepresentation
of minorities in the prospective jury panel due to a computer glitch in the selection process, as
well as ineffective assistance of counsel. Because the record does not support either of
defendant’s claims on appeal, we affirm.
On January 1, 2002 defendant was arrested after police responded to an anonymous 911
call reporting that three men were dragging a woman by her hair outside of an apartment
building on New Year’s Eve. When the police arrived at the apartment building, they heard a
woman crying and a man yelling coming from the second floor of the building. After
pinpointing the origin of the sounds, they knocked and announced their presence at apartment
207. Defendant’s brother, James Vance, opened the door. Another man was sitting in the living
room of the apartment. James Vance told the officers that there had been an argument but
everything was alright. The police heard the female complainant crying in the bathroom and told
her to come out. When she did not come out, the police eventually kicked the bathroom door in
and found the complainant and defendant inside the bathroom. The complainant was crying,
shaking, vomiting, her hair was messy, and her blouse was torn. The police observed swelling
on the left side of complainant’s head and swelling near her buttocks.
The complainant testified that defendant had been her boyfriend for six months. She
went to defendant’s brother James Vance’s apartment on New Year’s Eve. When she arrived
defendant was drinking and was angry because he believed she had written down some phone
numbers. Both James Vance and his son Deandre were in the apartment. The argument between
the complainant and defendant became physical after defendant accused the complainant of
sleeping with his brother. Defendant slapped her with an open hand causing her to fall to the
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floor and also hit her twice on the side of her head with a closed fist. When she attempted to
leave the apartment to escape, defendant followed her outside and dragged her back into the
apartment.
Once back in the apartment defendant got a knife from the kitchen and threatened his
brother with it. He then swung the knife around, and it hit the complainant’s coat leaving a
mark. As she was sitting on the couch in the apartment defendant came at her with the knife.
Defendant called the complainant a bitch, said he no longer wanted to see her, and threatened to
kill her. Defendant held the knife for approximately twenty minutes before returning it to the
kitchen. The argument then continued in the bathroom where defendant again hit the
complainant.
Defendant first argues on appeal that the trial court erred when it did not grant his motion
for a new trial based on his contention that minorities were underrepresented in the prospective
jury due to a computer glitch. We disagree. We review a trial court’s ruling on a motion for a
new trial for an abuse of discretion, and a trial court’s findings of fact for clear error. People v
Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000).
Defendant specifically argues that he was denied his constitutional right to a jury drawn
from a venire representative of a fair cross section of the community because of a computer
“glitch” in the Kent County juror selection system. Defendant failed to preserve his challenges
to the venire and the jury selection process because he did not object to the jury array before the
jury was impaneled and sworn. People v Hubbard (After Remand), 217 Mich App 459, 465; 552
NW2d 493 (1996). Therefore, defendant forfeited appellate consideration of the issue. People v
Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). Defendant’s reliance on Hubbard is
misplaced. In Hubbard, unlike this case, defense counsel made an objection to the jury array
before the jury panel was sworn. Hubbard, supra at 465. Here, defense counsel failed to object
to the jury array or panel and thus any alleged error is forfeited.
Defendant next argues that he was denied the effective assistance of counsel at trial.
Whether a person has been denied effective assistance of counsel is a mixed question of fact and
constitutional law. People v Leblanc, 465 Mich 575, 579; 640 NW2d 246 (2002). While we
review a trial court’s findings of fact for clear error, we review questions of constitutional law de
novo. Id. In order for a defendant to establish a claim that he was denied his state or federal
constitutional right to the effective assistance of counsel, he must show that his attorney’s
representation fell below an objective standard of reasonableness and that this was so prejudicial
to him that he was denied a fair trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
(1994). To prove deficient performance, a defendant must overcome the strong presumption that
his counsel’s action constituted sound trial strategy under the circumstances. People v Toma,
462 Mich 281, 302; 613 NW2d 694 (2000). To prove prejudice, a defendant must affirmatively
demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Id. at 302-303.
Defendant contends that he was denied the effective assistance of counsel when defense
counsel (1) advised him that if he testified he could be impeached with his prior convictions
although his convictions were either more than ten years old, or clearly did not involve a crime
of dishonesty, false statement, or theft and could not be used to impeach him; (2) failed to
adequately impeach the complainant with her prior mental history and history of combativeness;
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and (3) did not have time to sufficiently prepare for trial and did not locate a potential witness,
Tammi Moore.
Defendant’s first complaint is that he did not testify based on errant advice from his trial
counsel. Defendant provided an affidavit to the lower court in support of his motion for a new
trial. In this affidavit, defendant stated that he did not assault the complainant with a dangerous
weapon. On appeal, defendant argues that he would have testified in accordance with this
statement at trial had he not been misinformed by his defense counsel. Although we find that
defense counsel’s advice was given in error, defendant has provided us with no evidence or
argument affirmatively demonstrating a reasonable probability that, but for his counsel’s errors,
the result of the proceeding would have been different. Toma, supra, 462 Mich 302-303. To the
contrary, our review of the record reveals that defendant’s brother, who was present at the time
of the incident, testified on behalf of defendant. Defendant’s brother provided a version of the
events in the light most favorable to defendant before the jury at trial. Having defendant’s
brother testify in this manner only aided the defense because it allowed defendant to present his
version of the facts, yet shielded himself from exposure to cross-examination. Despite counsel’s
error, we do not find that but for counsel’s errors, the result of the proceeding would have been
different. Id.
Defendant next argues that he was denied the effective assistance of counsel when his
counsel failed to adequately impeach the complainant with her prior mental history and history
of combativeness. Decisions regarding the choice and presentation of evidence and the calling
or questioning of witnesses are presumed to be matters of trial strategy. People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999). In general, this Court will not second-guess a
counsel’s judgment on matters of trial strategy. People v Rice (On Remand), 235 Mich App 429,
445; 597 NW2d 843 (1999). Defense counsel extensively cross-examined the complainant at
trial and elicited testimony from her regarding mental health issues. In fact, the complainant
admitted during cross-examination that she had been prescribed medication for anger
management but refused to take it. We do not find that defense counsel was ineffective.
Counsel did question the complainant regarding her mental history and we decline to secondguess defense counsel on this matter of trial strategy.
Finally, defendant argues that his counsel did not have time to sufficiently prepare for
trial because he was appointed one week prior to trial, and for this reason, counsel did not locate
a potential witness named Tammi Moore. Aside from his contention that defense counsel was
ineffective for not locating Tammi Moore, defendant does not assign any other errors resulting
from defense counsel’s substitution. Again, decisions regarding the calling or questioning of
witnesses are presumed to be matters of trial strategy. Rockey, supra, 237 Mich App 76.
Defendant has not provided us with an affidavit from Tammi Moore describing her potential
testimony. In his affidavit, defendant avers that Tammi Moore “would have testified as to the
complainant’s propensity for argumentativeness and violence.” We fail to see how this
testimony would have aided defendant since he did not claim he acted in self-defense, and thus,
defendant has not shown prejudice. Defense counsel was not ineffective for not locating Tammi
Moore.
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Since defendant was not denied the effective assistance of counsel at trial, the trial court
did not err when it denied defendant’s motion for a new trial.
Affirmed.
/s/ Pat M. Donofrio
/s/ Richard A. Griffin
/s/ Kathleen Jansen
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