PEOPLE OF MI V KEVIN M GIBBONS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 5, 2004
Plaintiff-Appellee,
V
No. 247136
Wayne Circuit Court
LC No. 02-010814
KEVIN GIBBONS,
Defendant-Appellant.
Before: Donofrio, P.J. and White and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions for assault with intent to murder, MCL
750.83, felon in possession of a firearm, MCL 750.224f, and felony-firearm, MCL 750.227b.
We affirm.
On appeal, defendant claims that he was denied a fair trial where the prosecutor coerced
complainant into testifying. A prosecutor may not intimidate witnesses in or out of court.
People v Clark, 172 Mich App 407, 409; 432 NW2d 726 (1988). However, a prosecutor may
inform a witness that false testimony could result in a perjury charge. People v Layher, 238
Mich App 573, 587; 607 NW2d 91 (1999).
Here, complainant expressed his reluctance to testify, and the trial court questioned him
from the bench. Complainant sought to exercise a right to remain silent, which was inapplicable
as there was no claim of self-incrimination. There is no indication that complainant was inclined
to testify falsely, or that the prosecutor urged him to change his testimony. Where complainant’s
reluctance to testify was brought out on the record, the trial court did not err in declining to hold
an evidentiary hearing. People v Lucas, 188 Mich App 554, 572; 470 NW2d 460 (1991).
Defendant also asserts that he was denied a fair trial where the prosecutor introduced
evidence of his prior convictions. Prior to trial, the court granted defendant’s request to exclude
evidence of his prior convictions for armed robbery and felony-firearm. However, during crossexamination, defendant denied ever carrying a weapon, opening the door for the prosecutor to
impeach him with his prior weapons convictions. MRE 609 is not intended to apply to shield a
defendant where evidence of prior convictions is offered to rebut specific statements of the
defendant who testifies at trial. People v Oscar Moore, 164 Mich App 378, 383; 417 NW2d 508
(1987). The prosecutor properly used defendant’s prior convictions to rebut his claim that he
never carried a weapon.
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Defendant also raises additional issues in a late-filed Standard 11 brief.
considered defendant’s arguments and find them without merit.
We have
First, defendant argues that the evidence does not support his convictions. We review the
sufficiency of evidence in a criminal case in the light most favorable to the prosecution to
determine whether a rational trier of fact could find the essential elements of the crime were
proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78
(2000); People v Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002). We must give
deference to the jury’s findings by determining all reasonable inferences and credibility choices
in favor of the jury’s verdict. Nowack, supra, at 400.
At trial, the victim, Anthony Bridges, testified that on November 14, 2001, he was shot
after two men approached him. Bridges told police that “K.G.,” identified as defendant, shot
him. The shots hit him in the lower kidney area. After the shooting, defendant kept jabbing the
gun at Bridges, and he tried to push it away. Defendant then shot Bridges six more times. Prior
to the incident, Bridges did not know defendant’s real name, but knew him from the
neighborhood for about two years as “K.G.” At trial, defendant denied shooting Bridges and
maintained that he never carried a gun.
Reviewing the evidence introduced at trial in a light most favorable to the prosecution,
we conclude that the evidence supports the jury’s verdict because a reasonable juror could find
that all essential elements were proven beyond a reasonable doubt. Therefore, the prosecution
introduced sufficient evidence to support defendant’s convictions of assault with intent to
commit murder, MCL 750.83, felon in possession of a firearm, MCL 750.224f, and felonyfirearm, MCL 750.227b.
Next, defendant raises several issues asserting ineffective assistance of counsel. To
establish ineffective assistance of counsel, a defendant
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. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984); People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). As for
deficient performance, a defendant must overcome the strong presumption that his
counsel’s action constituted sound trial strategy under the circumstances. People
v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). As for prejudice, a
defendant must demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different . . . .’
Id. at 167. [People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000).]
Defendant claims that his counsel erred when he failed to investigate and call exculpatory
witnesses including both expert witnesses and res gestae witnesses. Counsel’s failure to call a
witness is considered ineffective assistance only if the failure deprives the defendant of a
substantial defense. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994).
Decisions 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). Defendant has failed to overcome this presumption. Defendant argues that trial
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counsel was ineffective because he did not call a ballistics expert and medical examiner at trial to
establish that defendant could not have committed the crime. However, there is no indication in
the record, nor has defendant demonstrated by offer of proof, that an expert witness, had one
been called, could have provided any favorable testimony. People v Ackerman, 257 Mich App
434, 455; 669 NW2d 818 (2003). Because defendant has not established the factual predicate for
his ineffective assistance of counsel claim concerning expert witnesses, he “has not established a
reasonable probability that but for counsel’s alleged error the result of the proceedings would
have been different.” Id. at 455-456.
Regarding res gestae witnesses, defendant argues that his trial counsel was ineffective for
not calling Mark Avant and Bobby Weise. Defendant does not demonstrate how these witnesses
were invaluable to his defense or how their testimony would have impacted the outcome of the
trial. Defendant’s representations in his Standard 11 brief regarding what the witnesses would
have testified to, without any affidavit or other admissible evidence, constitutes pure speculation.
Because the record itself is silent regarding the testimony Avant and Weise would have offered if
called, defendant has not shown that a reasonable probability exists that, if counsel had presented
the testimony of either witness, the outcome of the trial would have been different. People v
Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999).
Finally, defendant argues that his conviction should be reversed because trial counsel
failed to properly impeach the testimony of the victim, Bridges. Again, decisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy. Rockey, supra, 238 Mich App 76. This Court will not substitute its judgment for that
of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight. Id. at 76-77. A review of the record reveals that defense counsel
thoroughly questioned Bridges on cross-examination regarding the events surrounding the
shooting. The questions counsel chose to ask Bridges are squarely a matter of trial strategy, and
we refuse to assess counsel’s competence with the benefit of hindsight. Id.
Affirmed.
/s/ Pat M. Donofrio
/s/ Helene N. White
/s/ Michael J. Talbot
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