PEOPLE OF MI V MICHAEL D NEWHOUSE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 17, 1996
Plaintiff-Appellee,
v
No. 166456
LC Nos. 91-112993;
91-112994; 91-112995;
91-112996; 91-112997;
91-112998; 91-112999;
91-113000; 91-113001
MICHAEL D. NEWHOUSE,
Defendant-Appellant.
Before: Marilyn Kelly, P.J., and Wahls and M.R. Knoblock,* JJ.
PER CURIAM.
Defendant was convicted in a jury trial of nine counts of embezzlement, MCL 750.174; MSA
28.371. The trial court sentenced him to three years’ probation for each conviction. Defendant appeals
as of right. We affirm.
I
Defendant argues that he was denied the effective assistance of counsel. We disagree. To
establish that the right to effective assistance of counsel was so undermined that it justifies reversal of an
otherwise valid conviction, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness and that the representation so prejudiced the defendant as to deprive him of
a fair trial. People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996).
Failure to call a witness constitutes ineffective assistance of counsel only if the failure deprived
the defendant of a substantial defense. People v Hyland, 212 Mich App 701, 710; 538 NW2d 465
(1995). Because defendant has provided neither the names of any alleged witnesses nor the substance
of their potential testimony, we cannot say that defendant was deprived of a substantial defense. Id; p
* Circuit judge, sitting on the Court of Appeals by assignment.
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711; contrast People v Johnson, ___ Mich ___; ___ NW2d ___ (Docket No. 102949, issued
4/2/96) slip op pp 2-3.
Although defendant claims that counsel did not allow him to testify, the record does not reveal
either that defendant wished to testify or that counsel advised him not to do so. In addition, defendant
has not apprised this Court of the substance of his proposed testimony or explained how this testimony
would have strengthened his defense. See People v Conn, 171 Mich App 55, 67; 429 NW2d 839
(1988), vacated on other grounds 432 Mich 916; 441 NW2d 420 (1989). Similarly, defendant has not
shown a reasonable probability that had counsel consulted him before resting, the result of the
proceeding would have been different. See People v Lavearn, 448 Mich 207, 216; 528 NW2d 721
(1995).
Defendant argues that counsel was ineffective because he was “not prepared for trial.” For this
argument to succeed, it must be shown that this failure resulted in counsel’s ignorance of valuable
evidence which would have substantially benefited the accused. People v Caballero, 184 Mich App
636, 642; 459 NW2d 80 (1990). Defendant does not explain how the issuance of a bench warrant
and his arrest for failure to send in an arraignment on the information form prejudiced him to the extent
that he was denied a fair trial. In addition, defense counsel asserted without contradiction that he filed a
motion to dismiss based on defendant’s right to a speedy trial in October, 1992, but that both the
motion and trail were adjourned for six months. The trial court denied this motion not on the basis of
timeliness, but on the basis of docketing congestion and defendant’s requests for adjournment. See
People v Wickham, 200 Mich App 106, 110-111; 503 NW2d 701 (1993). Accordingly, defendant
has not shown prejudice. Lavearn, supra, p 216.
Defendant has not shown prejudice because his counsel suggested that he thought that the
prosecution would rest its case a day later than it did. See id. Finally, viewing the evidence in a light
most favorable to the prosecution, the elements of embezzlement were satisfied. People v Wood, 182
Mich App 50, 53; 451 NW2d 563 (1990). Defense counsel was not obligated to argue a meritless
motion for directed verdict. People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991).
II
Defendant argues that the prosecutor improperly commented on the fact that he (defendant)
would not be testifying on his own behalf. Because defendant did not object, appellate review is
foreclosed unless a curative instruction could not have eliminated the prejudicial effect or where failure
to consider the issue would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687;
521 NW2d 557 (1995). When viewed in context, the prosecutor’s remark was a comment that the
other managers’ testimony would reveal that they had not taken any money. Although the point could
have been expressed better, a curative instruction would have eliminated any prejudicial effect caused
by this isolated remark. Id.
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III
Defendant argues that evidence of a pattern of late deposits was improperly admitted. We
disagree. This evidence was not introduced to show propensity to commit the crime, but was
introduced to show “scheme, plan or system.” See MRE 404(b). In addition, the evidence was
relevant since it could have plausibly led to the inference that defendant, through his scheme of late
deposits escalating to missing deposits, intended the ultimate acts of taking the restaurant’s money. See
MRE 401. Finally, although probative evidence of guilt is always prejudicial, defendant has not shown
that this evidence was so inflammatory or prejudicial that the jury would have given it preemptive
weight. People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995); People v Davis, 199 Mich
App 502, 517; 503 NW2d 457 (1993). The trial court did not abuse its discretion in admitting
evidence of a pattern of late payments. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114
(1993).
Affirmed.
/s/ Marilyn Kelly
/s/ Myron H. Wahls
/s/ M. Richard Knoblock
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