PEOPLE OF MI V ATTRICE EUGENE SINGLETON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 21, 2009
Plaintiff-Appellee,
v
No. 285477
Wayne Circuit Court
LC No. 07-020686-FC
ATTRICE EUGENE SINGLETON,
Defendant-Appellant.
Before: Owens, P.J., and Servitto and Gleicher, JJ.
PER CURIAM.
After a bench trial, defendant was convicted of assault with intent to commit murder,
MCL 750.83, and armed robbery, MCL 750.529. The trial court sentenced defendant as a
second habitual offender, MCL 769.10, to concurrent prison terms of 16 to 24 years for each
conviction. Defendant appeals as of right. We affirm, and decide this appeal without oral
argument pursuant to MCR 7.214(E).
The victim, defendant’s stepfather, resided on Ohio Street in Detroit with his wife and
defendant. As the victim approached his car in the driveway in the early afternoon of September
24, 2007, he saw defendant approaching him from some bushes. Defendant held something
behind his back, and the victim thought defendant was getting ready to enter the car. When
defendant got closer, he swung the object at the victim, striking him on the right shoulder. The
victim did not recall the remainder of the attack, but he suffered a skull fracture, injuries to his
arm, and stab wounds that left the blade of a knife in his body, near his lung and heart. Police
recovered the knife handle from the backyard of the Ohio Street residence.
Although the victim testified at the preliminary examination that he felt 85 percent
certain that defendant had assaulted him, the victim testified at defendant’s trial that he had 100
percent certainty that defendant had committed the assault. The police also linked defendant to
the assault when they found in defendant’s possession a substantial number of coins and a
portion of a carton of cigarettes that the victim had been carrying when assaulted. Additionally,
the police detected drops of the victim’s blood on the top of defendant’s shoe.
Defendant testified that he was not in the area at the time of the attack, that the victim
previously had given him the pack of cigarettes, and that his mother gave him two rolls of coins.
Defendant believed that if the victim’s blood had gotten on his shoe, it must have happened
when he returned home as the police were processing the bloody scene. However, the police
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officer who observed defendant return home shortly after the assault offered his absolutely
certain view that defendant did not walk in or near the bloodstained area.
Defendant contends that the trial court erred by allowing the prosecutor to endorse on the
day of trial two witnesses to testify about laboratory findings that the blood on defendant’s shoe
matched the victim’s. “The trial court’s decision to permit the prosecutor to add or delete
witnesses to be called at trial is reviewed for an abuse of discretion.” People v Callon, 256 Mich
App 312, 325-326; 662 NW2d 501 (2003). “[T]o establish that the trial court abused its
discretion, [a] defendant must demonstrate that the court’s ruling resulted in [unfair] prejudice.”
Id. at 328.
Pursuant to MCL 767.40a(4), a prosecuting attorney “may add or delete from the list of
witnesses he or she intends to call at trial at any time upon leave of the court and for good cause
shown or by stipulation of the parties.” Here, when the prosecutor requested that the court
permit her to call the two witnesses, defense counsel responded that he had no objection, and
then further offered “to stipulate that the blood that was on [defendant’s] shoe was in fact that
of” the victim. The court accepted defendant’s proposed stipulation. Although defendant now
criticizes the trial court for not requiring the prosecutor to show good cause, defense counsel’s
reply at trial that he had no objection to an amended witness list effectively stipulated to the
addition of the witnesses, and removed any need for the court to examine whether good cause
existed. Moreover, the witnesses that the prosecution sought to add did not ultimately testify,
and defendant cannot demonstrate that he endured prejudice arising from the trial court’s ruling
to proceed in the manner suggested by defense counsel. See People v Murry, 106 Mich App
257, 262; 307 NW2d 464 (1981) (explaining that a defendant cannot request a certain action in
the trial court and then, after the court grants the request, argue on appeal that the action
amounted to error).
Defendant also submits that he was denied the effective assistance of counsel when trial
counsel stipulated to the introduction of the report documenting that the blood on defendant’s
shoe matched the victim’s. He does not suggest that the report qualified as inadmissible, but
rather claims that “[t]he crucial nature of this evidence virtually compelled a vigorous crossexamination. It is well known how many surprising facts are elicited on cross.”
Because defendant did not move for an evidentiary hearing pursuant to People v Ginther,
390 Mich 436; 212 NW2d 922 (1973), this Court limits its review of the issue to errors apparent
on the record. People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997). To establish
ineffective assistance of counsel, defendant must show that counsel’s representation “fell below
an objective standard of reasonableness” and “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). Defendant must also demonstrate prejudice, specifically
the existence of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different . . . .” Id. at 302-303 (citation and internal
quotations omitted).
Although defendant’s argument hints that the forensic report’s conclusion was vulnerable
to attack, he does not supply any factual foundation for that suggestion. Defendant has the
burden of establishing the factual predicate for his claim. People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999). In the absence of any evidence that the report’s conclusion could have been
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successfully challenged, we find no basis for concluding that counsel’s performance was
constitutionally deficient or that, but for his stipulation, the result of the proceeding would have
differed.
Defendant also urges this Court to remand the case for a Ginther hearing. He did not file
a proper motion to remand in this Court, and has not accompanied his request with an affidavit or
offer of proof demonstrating factual support for his claims, as required by MCR 7.211(C)(1)(a).
Accordingly, a remand is not warranted.
Affirmed.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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