PEOPLE OF MI V NATHAN SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 23, 2010
Plaintiff-Appellee,
v
No. 289688
Wayne Circuit Court
LC No. 08-009667-FH
NATHAN SMITH,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Cavanagh and Davis, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b.
He was acquitted of additional charges of felonious assault, MCL 750.82. He was sentenced to
probation for two years for the felon in possession conviction, to be served concurrently with a
two-year prison term for the felony-firearm conviction. He appeals as of right. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant’s convictions arise from an altercation in which a companion, Rickey Guyden,
accosted Edwin Snerling with a gun. According to Snerling, Guyden later passed the gun to
defendant while Guyden and Snerling engaged in a fistfight. Snerling, his brother Derrie Jacobs,
and Snerling’s mother all testified that defendant pointed the gun at both Snerling and Jacobs
during the altercation. The police did not recover a gun. Snerling testified that he saw a third
male who was with Guyden and defendant return to the area and retrieve something from the
high grass in front of a house. Snerling’s mother and brother saw that the item was a gun.
Defendant argues that trial counsel was ineffective for failing to investigate and call
Shineka Stephens to testify at trial. “Generally, to establish ineffective assistance of counsel, a
defendant must show that (1) counsel's performance fell below an objective standard of
reasonableness under professional norms and (2) there is a reasonable probability that, but for
counsel's errors, the result would have been different and the result that did occur was
fundamentally unfair or unreliable.” People v Seals, 285 Mich App 1, 17; ___ NW2d ___ (2009)
(citation omitted). Because an evidentiary hearing was not held, this Court’s review is limited to
errors apparent on the record. People v Williams, 223 Mich App 409, 414; 566 NW2d 649
(1997).
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The existing record does not establish that counsel was deficient for failing to investigate
or call a witness. On appeal, defendant has submitted Stephens’s affidavit, which indicates that
she was present at the scene with defendant, Guyden, and the third male. According to
Stephens’s affidavit, defendant did not possess a gun and just watched the fight. However, the
affidavit is not part of the lower court record, and therefore, this Court may not consider it for the
purpose of granting defendant’s request for a new trial. Seals, 285 Mich App at 20-21.
Defendant alternatively requests this Court to remand this case for an evidentiary hearing.
This Court previously denied an earlier motion to remand, People v Smith, unpublished order of
the Court of Appeals, entered September 18, 2009 (Docket No. 289688), and we again decline
defendant’s request for a remand. A defendant seeking a remand for an evidentiary hearing is
generally required to support his claim with an affidavit or offer of proof of the facts to be
established at a hearing. MCR 7.211(C)(1)(a). The affidavit presented here does not indicate
whether defense counsel was informed of Stephens’s status as a potential witness before trial,
whether she knew of Stephens’s existence and failed to investigate or interview her, or whether
she interviewed Stephens and found that she was not credible. Thus, the offer of proof does not
establish the facts necessary to evaluate whether defense counsel’s performance was deficient
with respect to Stephens. “Moreover, the failure to call a particular witness at trial is presumed
to be a matter of trial strategy, and an appellate court does not substitute its judgment for that of
counsel in matters of trial strategy.” Seals, 285 Mich App at 21 (citation omitted). We note that
defense counsel’s strategy at trial was to acknowledge defendant’s brief possession of the gun,
but to argue that he did not use it to commit an assault. This strategy was partly successful
because the trial court acquitted defendant of felonious assault. Defendant notes that defense
counsel’s attempt to persuade the trial court to acquit defendant of felon in possession was
legally deficient in light of decisions holding that momentary innocent possession is not a
defense. See People v Dupree, 284 Mich App 89; 771 NW2d 470 (2009), lv granted ___ Mich
___; 773 NW2d 261 (2009); People v Hernandez-Garcia, 477 Mich 1039; 728 NW2d 406
(2007). But in light of the testimony of the three prosecution witnesses who all testified that
defendant possessed the gun, counsel’s choices were limited. The assertion of a defense of
questionable merit does not demonstrate that counsel was ineffective. It is the failure to assert a
defense of substantial merit that establishes deficient performance. Defendant here has not
overcome the presumption of sound trial strategy, nor demonstrated that remand for an
evidentiary hearing is warranted.
For his last claim of error, defendant argues that his dual convictions for both felon in
possession of a firearm and felony-firearm violate the constitutional double jeopardy protection
against multiple punishments for the same offense. This argument has been squarely rejected by
both this Court and our Supreme Court. See People v Calloway, 469 Mich 448; 671 NW2d 733
(2003), and People v Dillard, 246 Mich App 163; 631 NW2d 755 (2001). Further, defendant’s
reliance on a federal district court decision is misplaced, because that decision has since been
reversed by the Sixth Circuit Court of Appeals. See White v Howes, 586 F3d 1025 (2009).
Accordingly, we reject this claim of error.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Mark J. Cavanagh
/s/ Alton T. Davis
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