PEOPLE OF MI V ERIC RAYMONE BROOKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 13, 2009
Plaintiff-Appellee,
v
No. 282355
Ingham Circuit Court
LC No. 07-000172-FC
ERIC RAYMONE BROOKS,
Defendant-Appellant.
Before: Owens, P.J., and Talbot and Gleicher, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of one count of armed robbery,
MCL 750.529. Defendant was sentenced, as a habitual third offender, MCL 769.11, to 96 to 240
months with 278 days credit for time served. We affirm.
Defendant argues that the trial court abused its discretion when it denied his motion for a
new trial and evidentiary hearing. Specifically, defendant argues that because newly acquired
evidence, comprised of cellular telephone records, demonstrates that his conviction was based on
false and perjured testimony by the alleged victim, that he is entitled to a new trial. A trial
court’s decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion.
People v Brown, 279 Mich App 116, 144; 755 NW2d 664 (2008). A trial court abuses its
discretion when its decision is outside the range of principled outcomes. People v Blackston,
481 Mich 451, 460; 751 NW2d 408 (2008). The trial court’s factual findings are reviewed for
clear error. MCR 2.613(C); People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
A defendant is entitled to a new trial based on newly discovered evidence if the defendant
demonstrates that: (1) “the evidence itself, and not merely its materiality, is newly discovered”;
(2) “the evidence is not cumulative”; (3) the party could not, using reasonable diligence, have
discovered and produced the evidence at trial”; and (4) “the new evidence makes a different
result probable on retrial.” Cress, supra at 692. Defendant contends that because his conviction
was obtained with false and perjured testimony, the trial court erred in failing to use the test
articulated in Giglo v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972). However,
this case is distinguishable from Giglo because there is no evidence that the prosecutor
knowingly presented false and perjured testimony. In fact, on appeal, defendant acknowledges
that the prosecutor did not knowingly present false and perjured testimony.
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The newly discovered evidence in this case was defendant’s cellular telephone record.
The trial court concluded that defendant was not entitled to a new trial because it did not believe
that the new evidence would have changed the result on retrial. Defendant contended that his
cell phone records indicated that the victim phoned defendant after the alleged robbery, contrary
to her trial testimony denying any such contact. However, the records put forth by defendant are
verified only by defendant’s own affidavit as being for his personal cell phone and there is no
evidence in the record to substantiate defendant’s claims that the identified cell phone numbers
belong to the victim and to defendant, respectively.1 As the trial court observed, even if the
records are accepted as accurate, at best this evidence could have been useful to impeach the
victim’s testimony on this one matter, but did not serve to either substantiate or negate either the
victim’s or defendant’s differing versions of whether an armed robbery or a soured drug deal had
occurred. Further, we find that the trial court’s conclusion that this evidence could have been
discovered and produced with reasonable diligence at the time of trial was not in error.
In the alternative, defendant argues that the trial court erred when it refused to grant his
motion for an evidentiary hearing to establish that the victim called him several times
immediately following the armed robbery. However, a defendant is not entitled to an evidentiary
hearing as a matter of right. See People v Williams, 275 Mich App 194, 200; 737 NW2d 797
(2007). Rather, it is defendant’s burden to present sufficient evidence to demonstrate that an
evidentiary hearing is warranted. Id. Because of the uncertainty and lack of verification of the
records, the trial court did not err in denying this request. Further, even if the trial court had
granted defendant’s motion for an evidentiary hearing and defendant was able to present
sufficient evidence to support his assertions regarding the phone calls, defendant would still not
be able to demonstrate that the evidence could not have been obtained and produced at trial. As
such, the trial court did not abuse its discretion in denying the hearing.
Defendant also contends that his trial counsel’s failure to obtain his and the victim’s cell
phone records before trial deprived him of the effective assistance of counsel. The right to
counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI;
Const 1963, art 1, § 20. The right to counsel is the right to have counsel effectively assist in the
presentation of one’s case. People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). The
determination of whether a defendant received effective assistance requires a focus on the
assistance actually received. Id. at 596. Because effective counsel is presumed, a defendant who
challenges his counsel’s performance bears a heavy burden of overcoming that presumption.
People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). To succeed on a claim of
ineffective assistance of counsel, a defendant must demonstrate (1) trial counsel’s actions fell
below that of a reasonably competent attorney when objectively viewed and (2) but for trial
counsel’s unreasonable conduct, there was a reasonable probability the outcome of the trial
would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed
2d 674 (1984); People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). Because neither a
1
The records indicate they are for cellular services for a “John Doe” who is listed as having a
different birth date than defendant.
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Ginther2 nor evidentiary hearing was conducted in this case, our review is limited to mistakes
apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
Contrary to defendant’s argument, the trial court did not err when it determined that his
counsel’s failure to produce the victim’s cell phone records at trial did not deprive him of
effective assistance of counsel. The record reflects that defendant requested that his trial counsel
obtain the victim’s cell phone records on August 15, 2007, and that defendant’s trial counsel
indicated that he would use his best efforts to secure them. However, defendant concedes that he
provided counsel with the incorrect phone number. Consequently, defendant has failed to
articulate a substantial basis for his argument that he was deprived of effective assistance of
counsel because his counsel failed to procure the wrongly identified records.
Finally, defendant contends that he was deprived of a fair trial because of statements
made by the prosecutor during closing arguments. Specifically, defendant argues that during
closing and rebuttal arguments, the prosecutor indirectly commented on defendant’s failure to
testify at trial. Prosecutorial misconduct issues are decided on a case-by-case basis, and the
reviewing court must examine the record and evaluate a prosecutor’s remarks in context. People
v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
When viewed in context, the prosecutor’s comments did not allude, either directly or
indirectly, to defendant’s failure to testify at trial. Rather, the prosecutor was challenging the
testimony of two witnesses based on the fact that only defendant and the victim had personal
knowledge of how the events actually transpired. A prosecutor may argue from the facts in
evidence that the testimony of a witness is not credible. People v Dobek, 274 Mich App 58, 67;
732 NW2d 546 (2007). We reject the implication that this legitimate challenge to the credibility
of these witnesses comprised either a surreptitious or inappropriate comment regarding
defendant’s exercise of his right not to testify. Consequently, the comment did not comprise
misconduct by the prosecutor.
Affirmed.
/s/ Donald S. Owens
/s/ Michael J. Talbot
/s/ Elizabeth L. Gleicher
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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