PEOPLE OF MI V MICHAEL LESLIE WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 14, 2004
Plaintiff-Appellee,
v
No. 247132
Wayne Circuit Court
LC No. 02-009424-01
MICHAEL LESLIE WHITE,
Defendant-Appellant.
Before: Donofrio, P.J. and White and Talbot, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of assault with intent to murder, MCL
750.83, 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 sentenced as an habitual offender, third
offense, MCL 769.11, to concurrent prison terms of ten and a half to twenty years on the assault
conviction and one to five years on the felon in possession conviction, to be served consecutively
to the mandatory two-year term for felony-firearm. Defendant appeals as of right and we affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant first contends that the prosecutor failed to exercise due diligence in producing
various res gestae witnesses, including defendant’s girlfriend, Jerry Ward, defendant’s sister,
Paula White, Alvin Stone, Lamont Fields, and another unnamed woman, and the trial court erred
in failing to inquire whether the prosecutor had exercised due diligence in producing them.
Defendant did not raise this issue below and thus it has not been preserved for appeal. People v
Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). Therefore, review is precluded unless
defendant establishes plain error that affected the outcome of the trial. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999).
The prosecution did not have an obligation to use due diligence to produce any of the
witnesses because they were not named as witnesses to be called at trial. People v Burwick, 450
Mich 281, 288-289; 537 NW2d 813 (1995); MCL 767.40a. Thus, it was not “necessary to
determine whether the prosecutor acted with due diligence in trying to locate or produce” them.
People v Calhoun, 178 Mich App 517, 522; 444 NW2d 232 (1989). The unnamed woman has
not been identified and there is no evidence that she, Stone, and Fields were known to the
prosecutor or to the police. The prosecutor does not have a duty to discover, endorse, or produce
unknown witnesses. Burwick, supra at 289. Therefore, defendant has failed to show that plain
error occurred with respect to the nonproduction of the witnesses.
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Defendant next contends that he is entitled to a new trial due to ineffective assistance of
counsel. Because defendant failed to raise this claim below in a motion for a new trial or an
evidentiary hearing, review is limited to the existing record. People v Snider, 239 Mich App
393, 423; 608 NW2d 502 (2000).
Defendant first asserts that trial counsel was ineffective for failing to call Ward and
White to testify at trial or to seek assistance to compel Ward’s attendance. The record shows that
counsel intended to call Ward but she failed to appear. Counsel’s failure to call a witness is
considered ineffective assistance “only if the failure deprives the defendant of a substantial
defense.” People v Bass (On Rehearing), 223 Mich App 241, 252-253; 565 NW2d 897 (1997),
vacated in part on other grounds 457 Mich 866 (1998). Because the record is silent regarding
the testimony Ward and White would have offered if called, defendant has not shown that a
reasonable probability exists that, if counsel had presented the testimony of either witness, the
outcome of the trial would have been different. People v Avant, 235 Mich App 499, 508; 597
NW2d 864 (1999).
Defendant next asserts that counsel was ineffective for failing to object to photographs
showing the shotgun wound to Pickett’s head. The record shows that the prosecutor introduced
photographs showing only the wounds to Pickett’s hand, leg, and shoulder. Because no
photographs of the wound to Pickett’s head were offered, counsel was not ineffective for failing
to object to the admission of any such photographs. In any event, the photos would have been
admissible to show intent as long as they were supported by testimony that they accurately
reflected the location of a wound from the shooting.
Defendant next contends that the trial court erred in failing to infer that Ward’s testimony
would have been adverse to the prosecution, taking its cue from the missing-witness criminal
jury instructions. CJI2d 5.12. Because the prosecutor was not required to produce Ward and
there is nothing in the record to show that defendant requested and was not provided reasonable
assistance in locating her, the instruction and therefore, the inference, was not applicable. People
v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003). In any event, the inference is permissive,
not mandatory, so even if applicable, the court was not required to infer that Ward’s testimony
would be adverse to the prosecution. People v Fields, 450 Mich 94, 105; 538 NW2d 356 (1995).
Cf. Brenner v Kolk, 226 Mich App 149, 155-156; 573 NW2d 65 (1997).
In his Standard 11 brief, defendant raises various other issues, none of which merit relief.
Defendant contends that the evidence was insufficient to sustain the verdict as to assault
with intent to murder. We disagree.
The elements of assault with intent to murder are (1) an assault, (2) with an actual intent
to kill, (3) which, if successful, would make the killing murder. People v Hoffman, 225 Mich
App 103, 111; 570 NW2d 146 (1997). The intent to kill may be proven by inference from any
facts in evidence, including proof of the victim’s injuries, and minimal circumstantial evidence is
sufficient. People v Mills, 450 Mich 61, 71; 537 NW2d 909 (1995), modified 450 Mich 1212
(1995); People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
The evidence showed that while Burt Pickett was standing outside the house arguing with
defendant’s brother David White, defendant appeared “on the top porch with a shotgun.” He
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pointed the weapon at Pickett and urged Ward to move so he could shoot Pickett. Shortly
thereafter, as Pickett started to leave, defendant began shooting at him. The intentional discharge
of a firearm at someone within range, done under circumstances that did not justify, excuse, or
mitigate the crime, is sufficient to prove assault with intent to commit murder. People v Lipps,
167 Mich App 99, 105; 421 NW2d 586 (1988); People v Johnson, 54 Mich App 303, 304; 220
NW2d 705 (1974). Therefore, the evidence was sufficient to enable a rational trier of fact to find
that each element of the crime was proved beyond a reasonable doubt. People v Harmon, 248
Mich App 522, 524; 640 NW2d 314 (2001).
Defendant contends that the court improperly relied on the photographs of Pickett’s
wounds to find that Pickett had been shot in the head when his medical records indicated
otherwise. As noted above, no photographs showing any wounds to Pickett’s head appeared to
have been admitted into evidence. The court found from the pictures showing “the wounds to
the right shoulder, to the right thigh area and to the right hand” that Pickett “received injuries as
a result of a shooting.”
Finally, defendant contends that he was denied a fair trial due to prosecutorial
misconduct. The issue has not been preserved because defendant did not object at trial.
Therefore, review is precluded unless defendant establishes plain error that affected the outcome
of the trial. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003).
Defendant argues that the prosecutor improperly “minimized Pickett’s violent character
and allowed him to give testimony that conflicted with an investigator’s report. Because
defendant has not briefed the merits of the claim or cited any supporting authority, the issue is
deemed abandoned. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims.” Green Oak Twp v Munzel, 255 Mich App 235, 244; 661
NW2d 243 (2003).
Defendant complains generally that the prosecutor not only presented false evidence, he
argued facts that were not part of the record. As noted, a prosecutor may not knowingly use false
testimony to obtain a conviction. This issue is also deemed abandoned due to defendant’s failure
to brief the merits of the claim or to cite any supporting authority. That aside, because defendant
has not cited to the relevant portions of the transcript, it is nearly impossible to evaluate his
claim. A review of the transcript does not bare-out defendant’s assertions. The prosecutor’s
arguments reached the admitted evidence and the reasonable inferences of fact to be drawn from
that evidence.
Affirmed.
/s/ Pat M. Donofrio
/s/ Helene N. White
/s/ Michael J. Talbot
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