PEOPLE OF MI V CHARLYNNE DELRESE FOSTER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 15, 2004
Plaintiff-Appellee,
v
No. 247709
Wayne Circuit Court
LC No. 02-006853
CHARLYNNE DELRESE FOSTER,
Defendant-Appellant.
Before: Murphy, P.J., and Griffin and White, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial conviction for embezzlement by an agent of
over $20,000, MCL 750.174(5)(a). Defendant was sentenced to five years’ probation with use of
a tether. We affirm.
Defendant first argues that she was denied the effective assistance of counsel. Defendant
has not fully preserved this issue for review by moving for a new trial or a Ginther1 hearing.
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). Consequently, this Court’s
review is limited to mistakes apparent on the record. Id.
A trial court’s findings of fact are reviewed for clear error, while questions of
constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002).
To establish a claim of ineffective assistance of counsel, a defendant must show: (1) that
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms; (2) that there is a reasonable probability that, but for counsel’s error, the
result of the proceedings would have been different, Bell v Cone, 535 US 685, 695; 122 S Ct
1843; 152 L Ed 2d 914 (2002); Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052;
80 L Ed 2d 674 (1984); People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000); and, (3) that
the resultant proceedings were fundamentally unfair or unreliable, People v Rodgers, 248 Mich
App 702, 714; 645 NW2d 294 (2001).
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
-1-
First, defendant claims that counsel was ineffective by failing to interview or call at trial
certain witnesses whose names had been presented to him by defendant. Second, defendant
contends that counsel was ineffective by not presenting existing physical evidence at trial.
Decisions as to what evidence to present and whether to interview or call witnesses are presumed
to be matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
The failure to call witnesses or present other evidence only constitutes ineffective assistance of
counsel when it deprives the defendant of a substantial defense. People v Daniel, 207 Mich App
47, 58; 523 NW2d 830 (1994).
In this case, defendant neither specifies what witnesses and evidence should have been
presented, nor the substance of such evidence or testimony. Thus, defendant has not shown that,
by the presentation of these witnesses and evidence, it is reasonably probable that the result of
the proceedings would have been different. People v Carbin, 463 Mich 590, 600; 623 NW2d
884 (2001). Defense counsel did present witnesses and cross-examined the prosecution’s
witnesses, presenting a substantial defense. Further, even if defendant did tell defense counsel
the names of the desired witnesses and the substance of the evidence that she wanted to admit, it
is considered a matter of trial strategy for defense counsel to decide not to produce them. The
Court will not second-guess matters of trial strategy. People v Gonzalez, 468 Mich 636, 644
645; 664 NW2d 159 (2003); People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d
843 (1999). Failure of trial strategy does not necessitate a conclusion that the strategy
constituted ineffective assistance of counsel. People v Stewart, 219 Mich App 38, 42; 555
NW2d 715 (1996).
Third, defendant argues that trial counsel was ineffective by convincing her not to testify.
Whether to “call the defendant to testify is a matter of trial strategy.” People v Alderete, 132
Mich App 351, 360; 347 NW2d 229 (1984). When a “defendant decides not to testify or
acquiesces in his attorney’s decision that he not testify, ‘the right will be deemed waived.’”
People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985), quoting State v Albright, 96
Wis 2d 122, 135; 291 NW2d 487 (1980). The record does not relate why defendant did not
testify; however, had defendant desired to do so, she could have spoken up at any time. Further,
the Michigan Rules of Professional Conduct state that:
In a criminal case, the lawyer shall abide by the client’s decision, after
consultation with the lawyer, with respect to . . . whether a client will testify.
[MRPC 1.2 (emphasis added).]
Trial counsel was proper in counseling defendant. Defendant acquiesced in her attorney’s
decision that defendant not testify, and the issue is thus waived.
Fourth, defendant argues that trial counsel was ineffective by failing to ask the trial judge
to recuse herself. Defendant states that the trial judge and the complainant, Daniel Reid, knew
each other from law school and that the trial judge’s husband and Reid’s nephew practice law
together. Defendant does not point to anything on the record or any extrinsic facts that would
support her claim. Defendant’s mere assertion that her rights were violated, without record
citations or cogent argument supported by authority, is insufficient to present this issue for
review by this Court. MCR 7.212(C)(7); People v Jones (on Rehearing), 201 Mich App 449,
456-457; 506 NW2d 542 (1993). Further, counsel is not required to advocate a meritless
-2-
position. Snider, supra at 425. Defendant has failed to overcome the presumption that counsel
rendered effective assistance. LeBlanc, supra at 578.
Defendant next argues that the trial court abused its discretion by not allowing defendant
to call a rebuttal witness. We disagree. Admission of rebuttal evidence is within the trial court’s
discretion and will not be disturbed on appeal absent a clear abuse of discretion. People v
Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996).
Rebuttal testimony may be used to clarify, dismiss, or counter evidence that an opposing
party has presented in order to weaken and impeach that evidence. People v Leo, 188 Mich App
417, 422; 470 NW2d 423 (1991). Rebuttal evidence is limited to contesting, challenging, or
clarifying evidence presented by the opposing party. Leo, supra at 422. Rebuttal evidence must
be on a material matter, not a collateral issue. People v Teague, 411 Mich 562, 566; 309 NW2d
530 (1981). The evidence that it is offered to rebut determines whether the rebuttal testimony is
relevant. People v Bettistea, 173 Mich App 106, 126; 434 NW2d 138 (1988). The proper test of
whether rebuttal evidence was correctly admitted is not whether the evidence could have been
offered by the prosecutor in his case in chief, but whether the evidence is “properly responsive to
evidence introduced or a theory developed by the defendant.” Figgures, supra at 399; Bettistea,
supra at 126. A defendant is not permitted to present surrebuttal testimony that merely reiterates
evidence he formerly presented during his case in chief. People v Solak, 146 Mich App 659,
675; 382 NW2d 495 (1985).
In her defense, defendant presented testimony from three witnesses who had worked for
or with Daniel Reid, the complainant: Kristi Glenn, Johnny Hawkins, and George Lyons. All
three of defendant’s witnesses testified to having disputes with Reid over money, stating that
they were not paid as much as Reid had orally agreed to pay them. Lyons stated that he severed
his relationship with Reid due to financial reasons.
In rebuttal, the prosecution responded with three witnesses who testified to Reid’s
reputation in the community for honesty. Reid also was recalled to testify regarding the money
disputes and firings. Reid testified that he had fired Lyons because Lyons had started dating a
client’s girlfriend, Mary Johnson, while they were working on his case.
Defendant then recalled Johnny Hawkins in surrebuttal to clarify who was authorized to
put Reid’s signature on specific forms. Defendant also requested that Lyons be allowed to take
the stand again as a surrebuttal witness. Defense counsel stated that he wanted Lyons to testify
regarding when he began dating his fiancée in an attempt to establish why Lyons was fired from
the law firm. The trial court denied the request, stating that Lyons’ proffered testimony would be
on a collateral matter.
We conclude that the trial court did not abuse its discretion in denying defendant’s
request that Lyons be called as a surrebuttal witness. As the trial court properly recognized, such
testimony, if allowed, was on a collateral issue and was not relevant to the charges against
defendant. Teague, supra at 566; Figgures, supra at 398.
In defendant’s statement of this issue, she also mentions “other witnesses” whom the trial
court purportedly would not allow to testify. Defendant does not articulate the identity of these
other witnesses or otherwise address this issue in her brief. Because the merits of this allegation
-3-
are not addressed, the issue is not properly presented for review. Jones, supra at 456-457. “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 with little or no
citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998).
Affirmed.
/s/ William B. Murphy
/s/ Richard Allen Griffin
/s/ Helene N. White
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
