PEOPLE OF MI V ALAN CHRISTOPHER GRIGGS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 16, 2004
Plaintiff-Appellee,
v
No. 247708
Wayne Circuit Court
LC No. 02-013089-01
ALAN GRIGGS,
Defendant-Appellant.
Before: O’Connell, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to do great bodily
harm, MCL 750.84 and possessing a firearm during the commission of a felony, MCL 750.227b.
The trial court sentenced defendant to 25 to 120 months’ imprisonment for the assault
conviction, and 2 years’ imprisonment for the felony-firearm conviction. Defendant appeals as
of right arguing that the trial court erred when it took testimony without defendant present at a
motion before the trial court where defendant sought a new trial or a Ginther1 hearing, that he
was denied the effective assistance of counsel at trial, and finally that the trial court abused its
discretion when it allowed the prosecutor to ask defendant how he would hide a weapon.
Because we find none of defendant’s arguments persuasive, we affirm.
Defendant was involved in a shooting that occurred during the early morning hours of
July 26, 2002 on Lyndon in Detroit. Both the victim, Keno Winbush, and his sister, Lakia
Winbush, testified at trial that defendant shot the victim in the leg after they had a brief
confrontation outside of the Winbush residence. Defendant testified on his own behalf at trial
where he denied shooting the victim, and implicated Alton Hubbard, an associate who was with
defendant when the shooting occurred.
Defendant first argues that the trial court erred when it took testimony without defendant
present at a motion before the trial court where defendant sought a new trial or a Ginther hearing.
This Court reviews a trial court’s decision to grant or deny a motion for new trial for an abuse of
discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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The record reveals that at defendant’s motion for either a new trial or a Ginther hearing,
coincidentally, defendant’s trial counsel entered the courtroom. The trial court asked defendant’s
counsel to answer a few questions on the record in order to assist the court with the
determination regarding whether it should grant defendant’s motion for a new trial or for a
Ginther hearing. The trial court clearly enunciated on the record that it was not holding a
Ginther hearing, but was rather entertaining testimony to aid in its decision to grant or deny
defendant’s motion for a Ginther hearing or new trial. Later, after the prosecutor began crossexamining defendant’s trial counsel, the trial court immediately stopped the prosecutor from
beginning a line of questioning that would have required defendant’s attendance because the
substance would have been appropriate for a Ginther hearing.
Defendant argues now on appeal that he was denied his constitutional rights to
confrontation and due process when the trial court held a “de facto” Ginther hearing outside of
defendant’s presence. Clearly, a defendant has a right to be physically present at his trial. MCL
768.3; People v Krueger, 466 Mich 50, 51; 643 NW2d 223 (2002). And if this had been a
Ginther hearing where testimony was taken on the merits of the issue of ineffective assistance,
defendant’s presence would have been required. However, our review or the record reveals that
contrary to defendant’s characterization of the hearing at issue as a de facto Ginther hearing, in
actuality, the trial court merely took testimony to assist it in its determination whether to grant a
Ginther hearing where the merits would then be reached. As such, defendant’s rights were not
violated and the trial court did not abuse its discretion.
Next, defendant argues that he was denied his right to effective assistance of counsel at
trial when counsel failed to make timely objections on several occasions during trial. Because an
evidentiary hearing was not conducted, our review is limited to the mistakes apparent on the
existing record. People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611 (2003).
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To
establish ineffective assistance of counsel, the defendant must first show that the performance of
his counsel was below an objective standard of reasonableness under the prevailing professional
norms. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). The defendant must show
that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed
by the Sixth Amendment. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). The
reviewing court indulges a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance, and the defendant bears the heavy burden of proving
otherwise. Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984);
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). The defendant must overcome a
strong presumption that the assistance of counsel was sound trial strategy. Carbin, supra, at 600.
In addition to showing counsel’s deficient performance, the defendant must show that the
representation was so prejudicial to him that he was denied a fair trial. Toma, supra, at 302. In
order to show prejudice, the defendant must demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Carbin,
supra, at 600. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id., quoting Strickland, supra, at 694.
Defendant states that his counsel was ineffective for failing to object to the prosecutor’s
elicitation of prior consistent statements from Keno and Lakia Winbush. MRE 801(c) defines
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hearsay as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” However, MRE 801(d)
provides that certain statements are not considered to be hearsay, and therefore are not barred by
the general prohibition against hearsay. MRE 802. Among these are prior consistent statements.
A prior consistent statement is admissible if four requirements are met: (1) the declarant testifies
at trial and is subject to cross-examination, (2) there is an express or implied charge of recent
fabrication or improper influence or motive of the declarant’s testimony, (3) the statement is
consistent with the declarant’s challenged in-court testimony, and (4) the prior consistent
statement was made prior to the time that the supposed motive to falsify arose. MRE
801(d)(1)(B); People v Jones, 240 Mich App 704, 707; 613 NW2d 411 (2000).
Defendant’s claim of error fails because defendant has mischaracterized the testimony. A
review of the record reveals that the prosecutor did not improperly attempt to elicit prior
consistent statements from Keno and Lakia Winbush. The testimony in question, when read in
context, showed merely that the line of questioning related to the fact that the witness had
properly told the police that they had previously had the wrong person in court and that the
witness would not identify the wrong individual.
Defendant claims that his counsel was ineffective for failing to object when the
prosecutor questioned defendant about his pre-arrest silence. In particular, defendant asserts that
it was error for defendant’s counsel not to object when the prosecutor asked defendant why he
did not go to the police and report the name of the shooter. Again, defendant mischaracterizes
the evidence, because during direct examination defendant testified that he did not call the police
because he feared for his life. Because a defendant’s prearrest silence is admissible for
impeachment purposes, the prosecutor’s reference to defendant’s pre-Miranda silence to impeach
his exculpatory testimony was proper questioning. People v Hackett, 460 Mich 202, 213; 596
NW2d 107 (1999). Therefore, because no misconduct occurred, defense counsel properly did
not object.
Defendant also claims that his counsel was ineffective when his counsel did not object to
harassing and confusing questions during defendant’s cross-examination. Defendant specifically
argues that his counsel erred when he did not object to speculative questions regarding how
defendant would hide the weapon if he had it, when the prosecutor brought up an irrelevant
second arrest, and when the prosecutor questioned defendant regarding an alleged alias. In fact
the record reveals that defense counsel did in fact object to the prosecutor’s line of questioning
regarding hiding an assault rifle by wrapping a towel around it on the grounds of relevance, but
the objection was overruled. Therefore, contrary to defendant’s argument, defendant’s trial
counsel did object on the record.
In any event, the record does not establish that counsel was ineffective for any of these
reasons. Counsel’s decisions with regard to these matters all involved matters of trial strategy
and defendant has not overcome the presumption of sound strategy. Ineffective assistance of
counsel will not be found merely because a strategy backfires. People v Marcus Davis, 250
Mich App 357, 368; 649 NW2d 94 (2002). Defendant has not demonstrated that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Carbin, supra, 463 Mich at 600.
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Finally, defendant argues that the trial court abused its discretion when it allowed the
prosecutor to ask defendant how he would hide a weapon, referring to a specific line of
questioning where the prosecutor asked if defendant would ever attempt to hide an assault rifle
by wrapping it in a towel. We review a trial court’s decision to admit evidence for an abuse of
discretion, and we review de novo preliminary questions of law involved in that decision.
People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). An abuse of discretion is found
when an unprejudiced person, considering the evidence on which the trial court based its
decision, would conclude that there was no justification or excuse for the ruling. People v
Gonzalez, 256 Mich App 212, 217-218; 663 NW2d 499 (2003).
During trial, as noted above, defendant’s trial counsel did object to the line of questioning
at issue on the grounds of relevance. On appeal, defendant raises the same argument. Normally,
relevant evidence is admissible, and irrelevant evidence is not. MRE 402. If it has any tendency
to make the existence of a fact that is of consequence to the action more probable or less
probable than it would be without the evidence, then the evidence is relevant. MRE 401. To be
material and relevant, evidence does not need to relate to an element of the charged crime or an
applicable defense, but may concern the relationship of the elements of the charge, the theories
of admissibility, and the defenses. People v Brooks, 453 Mich 511, 518; 557 NW2d 106 (1996).
After reviewing the record, we conclude that the trial court did not abuse its discretion in
allowing the line of questioning. During his testimony, defendant claimed that when the victim
came out of the house, he had an assault rifle wrapped in a towel in an attempt to conceal it. The
record reveals that the prosecutor was challenging the veracity of this statement when the
prosecutor attempted to elicit testimony from defendant regarding whether wrapping an assault
rifle in a towel was a reasonable manner of concealing it. And in doing so, the prosecutor asked
defendant if he would have attempted the same methodology. We conclude that the trial court
did not abuse its discretion in allowing the testimony because it was relevant under MRE 402.
Affirmed.
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
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