PEOPLE OF MI V RODNEY ALLAN HUBBARD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 25, 2007
Plaintiff-Appellee,
v
No. 263300
Berrien Circuit Court
LC No. 2004-404393-FC
RODNEY ALLAN HUBBARD,
Defendant-Appellant.
Before: Fort Hood, P.J., and Talbot and Servitto, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a), and possession of a firearm during the commission of a felony, MCL 750.227b.
He was sentenced as a third-felony habitual offender, MCL 769.11, to life imprisonment for the
murder conviction and a consecutive two-year term of imprisonment for the felony-firearm
conviction. He appeals as of right. We affirm.
Defendant’s convictions arise from the March 1999 shooting death of Raymond Davis.
The crime remained unsolved for several years. In 2004, defendant’s cellmate contacted the
police and reported that defendant had bragged about committing the murder.1 The police
subsequently provided the cellmate with a digital recording device, and defendant allegedly
confessed to the crime during a recorded conversation with the cellmate. The recorded
conversation was played for the jury at trial.
Defendant first argues that defense counsel was ineffective for failing to have the digital
recording analyzed before trial, failing to timely request the prosecutor’s assistance in locating
two missing witnesses, and failing to request a cautionary instruction concerning the limited use
of other acts evidence. We disagree.
Because defendant did not raise this issue in a motion for a new trial or evidentiary
hearing pursuant to People v Ginther, 390 Mich 436, 442-444; 212 NW2d 922 (1973), our
review is limited to mistakes apparent from the record. People v Hurst, 205 Mich App 634, 641;
1
Defendant was serving a jail sentence for discharging a firearm toward a building, MCL
750.234b, at the time he made statements to his cellmate.
-1-
517 NW2d 858 (1994). To establish ineffective assistance of counsel, defendant must show that
counsel’s performance was deficient and that, under an objective standard of reasonableness,
counsel made an error so serious that he or she was not performing as the attorney guaranteed by
the constitution. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). Defendant
must overcome the presumption that the challenged conduct might be considered sound trial
strategy and must further show that he was prejudiced by the error in question. Id. at 314, 330.
To establish prejudice, defendant must show that there is a reasonable probability that the result
of the proceedings would have been different, but for the unprofessional errors of trial counsel.
People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995).
“Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy, and this Court will not substitute its judgment for
that of counsel regarding matters of trial strategy.” People v Davis, 250 Mich App 357, 368; 649
NW2d 94 (2002). In particular, whether to call an expert witness is a trial strategy decision.
People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). To overcome the
presumption of sound trial strategy, the defendant must show that counsel’s alleged error may
have made a difference in the outcome by, for example, depriving the defendant of a substantial
defense. See People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
During trial, defense counsel requested an adjournment so he could have the recording
analyzed to determine whether the voice on the recording could be identified as defendant’s
voice. Counsel conceded that he made a serious error by failing to have the recording analyzed
before trial. Thus, the first prong of the test for ineffective assistance of counsel is satisfied.
However, defendant has not satisfied the prejudice prong. At trial, Thomas Alti of TGA
Recordings testified that he was hired to enhance the quality of the recording by filtering out
background noises. According to Alti, however, it was not possible to positively match the voice
on the recording to defendant’s voice. When defense counsel requested an adjournment, he
informed the court that he had located two experts who might be able to analyze whether the
voice on the recording was defendant’s, but counsel admitted that he had not spoken to either.
The court denied the request for an adjournment, but stated that it would reconsider its decision
if counsel provided the court with more information. There is no indication in the lower court
record that additional information was ever provided to the court. Additionally, defendant has
failed to make any further showing that an analysis of the recording might demonstrate that the
voice on the recording was not defendant’s voice. Absent such a showing, there is no basis for
concluding that further analysis may have made a difference in the outcome of the trial.
Therefore, reversal is not warranted. LaVearn, supra.
Defense counsel also conceded at trial that he was remiss in waiting until just before trial
to ask for the prosecutor’s assistance in locating two missing witnesses, rather than requesting
assistance at least ten days before trial as required by MCL 767.40a(5). However, the record
shows that the anticipated testimony from the two witnesses would only have corroborated the
testimony of other witnesses who already testified at trial. Because the witnesses’ testimony
would have been cumulative of other testimony that was presented, defendant has not
demonstrated that the absence of the testimony deprived him of a substantial defense or that, but
for this alleged error, the outcome of his trial might have been different. LaVearn, supra;
Pickens, supra.
-2-
Lastly, counsel’s decision whether to request a cautionary instruction was a matter of trial
strategy. People v Gonzalez, 468 Mich 636, 645; 664 NW2d 159 (2003). In this case, defense
counsel may have chosen not to request a cautionary instruction for strategic reasons.
Furthermore, review of the record reveals that defendant repeatedly and deliberately introduced
the other acts evidence. Defendant testified that he pleaded guilty to the discharge of a firearm
charge because he committed the offense. He denied selling drugs in 1999, but admitted that he
sold drugs in 2001. Defendant testified that he admitted guilt when he was guilty of the offenses;
but he denied committing the murder and asserted that he was innocent of the charge and was
being “railroaded.” Based on the above, defendant has failed to overcome the presumption of
sound trial strategy. Additionally, defendant concedes that this error, by itself, was not outcome
determinative. In sum, defendant has failed to show that he was denied the effective assistance
of counsel at trial.
Next, defendant argues that the trial court erred in denying his motion for a new trial. We
disagree. A trial court’s decision on a motion for a new trial is reviewed for an abuse of
discretion. People v Lemmon, 456 Mich 625, 641; 576 NW2d 129 (1998). A new trial may be
granted for any reason that would support reversal on appeal. See MCR 6.431(B).
Defendant first argues that a new trial was warranted because the trial court erroneously
denied his request for an adjournment to allow the recording to be analyzed.
In deciding whether to grant a continuance, the trial court should consider whether the
defendant: (1) asserted a constitutional right; (2) had a legitimate reason for asserting the right;
(3) had been negligent; and (4) had requested previous adjournments. People v Charles O
Williams, 386 Mich 565, 578; 194 NW2d 337 (1972); People v Lawton, 196 Mich App 341, 348;
492 NW2d 810 (1992). Defendant must also show that he was prejudiced by the court’s denial
of his motion. Lawton, supra at 348; see also Williams, supra at 574-575.
In this case, defendant was asserting a constitutional right (to present a defense) and had a
legitimate reason for asserting that right (his belief that the voice on the recording was not his,
and counsel’s failure to have the recording analyzed before trial). There is no indication of
previous adjournments attributable to defendant. However, defense counsel admitted that he was
negligent in failing to have the recording analyzed before trial. More importantly, defendant
failed to come forward with any evidence that an analysis of the recording could demonstrate
that the voice on the recording was not his. Because defendant cannot show that he was
prejudiced by the trial court’s denial of his motion for a continuance, the trial court did not abuse
its discretion in denying defendant’s motion for a new trial on this basis. Williams, supra.
Defendant further argues that a new trial was warranted because the prosecutor did not
exercise due diligence in attempting to find the two missing witnesses. We disagree.
With regard to the prosecutor’s alleged lack of due diligence, defendant confuses the
standard applicable to a finding that a witness is unavailable within the meaning of MRE 804,
with the standard applicable to requests for assistance under MCL 767.40a(5). MRE 804(a)(5)
requires a showing that the proponent of the evidence exercised due diligence in attempting to
procure the missing witness’s attendance. See People v Bean, 457 Mich 677, 683-684; 580
NW2d 390 (1998). Once that showing is made, the proponent can attempt to show that other
-3-
evidence (in lieu of the witness’s testimony) should be admitted under one of the exceptions
listed in MRE 804(b).
Conversely, under MCL 767.40a(5), a defendant is entitled to reasonable assistance in
locating a missing witness. See People v Long, 246 Mich App 582, 585; 633 NW2d 843 (2001).
If the prosecutor fails to provide such reasonable assistance, the defense may be entitled to a
missing witness instruction. See People v Perez, 469 Mich 415, 418-421; 670 NW2d 655
(2003).
In this case, defendant sought to introduce hearsay evidence (police reports) in lieu of the
missing witnesses’ live testimony. Thus, MRE 804(a)(5) initially applied, requiring a showing
of due diligence. But defendant appears to have confused the two standards and, instead of
evaluating whether defendant (the proponent of the evidence) exercised due diligence in
attempting to procure the witnesses’ attendance, the court and the parties addressed the question
of whether the prosecutor exercised due diligence.2 The prosecutor’s efforts were relevant only
to defendant’s alternative argument that the trial court should give a missing witness instruction
because the prosecutor did not provide sufficient assistance to locate the missing witnesses.
Defendant repeats this error on appeal.
To the extent that defendant’s argument can be interpreted as addressing MCL
767.40a(5), we conclude that defendant was not entitled to the prosecutor’s assistance because he
failed to make a timely request under the statute. Regardless, we are satisfied that the assistance
provided by the prosecutor was sufficient to satisfy the prosecutor’s burden under statute. Thus,
defendant was not entitled to a missing witness instruction.
In sum, defendant has failed to show that the trial court committed an error that would
warrant reversal. Therefore, the trial court did not abuse its discretion in denying defendant’s
motion for a new trial. Lemmon, supra.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Michael J. Talbot
/s/ Deborah A. Servitto
2
On appeal, defendant does not argue that he exercised due diligence in attempting to find the
missing witnesses, or that the hearsay police reports were admissible under any of the exceptions
listed in MRE 804(b).
-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.
