PEOPLE OF MI V MICHAEL BRIAN BERRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 28, 2006
Plaintiff-Appellee,
v
No. 256446
Oakland Circuit Court
LC No. 2004-194320-FH
MICHAEL BRIAN BERRY,
Defendant-Appellant.
Before: Wilder, P.J. and Kelly and Borrello, JJ.
PER CURIAM.
Defendant was convicted of malicious destruction of property more than $1,000 but less
than $20,000, MCL 750.377a(1)(b)(i), for which he was sentenced as a fourth habitual offender,
MCL 769.12, to 3 to 15 years’ imprisonment. Defendant appeals as of right his conviction and
sentence. We affirm.
Defendant first argues that he was denied the effective assistance of counsel because
defense counsel failed to prepare the defense witness, investigate a potential witness, and object
to prejudicial hearsay testimony and prosecutorial misconduct. We disagree.
Defendant moved for a new trial or an evidentiary hearing, which the trial court denied.1
"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). The trial
court must first find the facts and then decide whether those facts constitute a violation of the
defendant's constitutional right to the effective assistance of counsel. Id. The trial court's factual
findings are reviewed for clear error, while its constitutional determinations are reviewed de
novo. Id.
Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was below an
1
Although the trial court deemed defendant’s motion untimely, it considered it as a motion for
relief from judgment and, reviewing defendant’s claim of ineffective assistance of counsel, ruled
that it was without merit.
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objective standard of reasonableness under prevailing professional norms and
there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. [People v Effinger, 212 Mich App 67, 69;
536 NW2d 809 (1995).]
Defendant first maintains that defense counsel failed to properly prepare the sole defense
witness Jodi Sobiecki, defendant’s former wife. Sobiecki established an alibi for defendant for at
least one of the vandalism incidents. She also testified that she did not believe defendant
committed the charged crimes. Despite her additional testimony that defendant was arrested
because he “drop kicked” their daughter, Sobiecki’s testimony was the only evidence beneficial
to the defense. “Decisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76;
601 NW2d 887 (1999). This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight.”
Id. Assuming that defense counsel knew that Sobiecki might testify in this regard (he did object
before the testimony to this “line of questioning”), his decision to call her nonetheless is
presumed to be a matter of trial strategy. If defense counsel did not know, it was incumbent on
defendant, not Sobiecki to tell him. Defense counsel “cannot be found ineffective for failing to
pursue information that his client neglected to tell him.” People v McGee, 268 Mich App 600,
626; 709 NW2d 595 (2005). On this record, even considering the affidavit submitted by
defendant, we cannot conclude that defense counsel’s performance with respect to calling
Sobiecki as a witness “was below an objective standard of reasonableness under prevailing
norms.”
Defendant also contends that defense counsel should have investigated and called as a
witness a police officer identified only as “Officer Smith” who responded to and wrote a report
on the complainant’s last of multiple complaints of vandalism to his vehicle. Failure to call a
witness may constitute ineffective assistance only if it deprives the defendant of a substantial
defense that would have affected the outcome of the trial. People v Daniel, 207 Mich App 47,
58; 523 NW2d 830 (1994). Defendant asserts that Officer Smith may have disputed the
complainant’s allegation that defendant caused the alleged windshield damage because Officer
Smith did not mention it in his report. However, Officer Smith noted in his report that there was
a prior related complaint and the window complaint was made a day earlier. Further, defendant
offers nothing but speculation that Officer Smith would have assisted his defense. Therefore, we
cannot conclude that defense counsel’s decision not to call this witness denied defendant a
substantial defense.
Defendant further argues that defense counsel was ineffective for failing to object to
Sobiecki and the complainant’s inadmissible testimony. With respect to Sobiecki’s testimony,
defendant contends that her testimony that defendant “drop kicked” his daughter denied him a
fair trial. However, the record clearly reflects that defense counsel objected to this line of
questioning, but the court admitted it is as going to credibility. Even if defense counsel had not
objected, however, defendant has not identified any legal basis for defense counsel’s objection.
“Issues insufficiently briefed are deemed abandoned on appeal.” People v VanTubbergen, 249
Mich App 354, 365; 642 NW2d 368 (2002).
Defendant also asserts that defense counsel should have objected to the complainant’s
inadmissible hearsay concerning defendant’s abusive relationship with Tamara Kornak. Again,
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other than citing the testimony and asserting that it is hearsay, defendant has cited no supporting
authority and provides no analysis as to why the statements are inadmissible hearsay. Therefore,
this issue is also abandoned. VanTubbergen, supra at 365.
Defendant’s claim of prosecutorial misconduct is also without merit. Issues of
prosecutorial misconduct are considered “on a case-by-case basis by examining the record and
evaluating the remarks in context, and in light of defendant’s argument.” People v Thomas, 260
Mich App 450, 454; 678 NW2d 631 (2004). A prosecutor is “free to argue the evidence and any
reasonable inferences that may arise from the evidence.” People v Ackerman, 257 Mich App
434, 450; 669 NW2d 818 (2003). The prosecutor’s reference to defendant “living on the streets”
was supported by Sobiecki’s testimony that defendant needed a place to stay and the
complainant’s testimony that defendant made threatening phone calls from pay phones. Because
it was supported by evidence, the prosecutor’s statement was not improper. “Defense counsel is
not required to make a meritless motion or a futile objection.” People v Goodin, 257 Mich App
425, 433; 668 NW2d 392 (2003).
Defendant next argues that he is entitled to resentencing because the trial court
incorrectly scored 25 points for offense variable (OV) 13. The prosecutor conceded in the trial
court, and concedes on appeal, that OV 13 should have been scored zero points. A review of
defendant’s record indeed reveals that, although he has demonstrated a pattern of criminal
activity, it was not a pattern of felonious criminal activity. MCL 777.43. Therefore, OV 13
should have been scored zero points. However, resentencing is “not required where the trial
court has clearly indicated that it would have imposed the same sentence regardless of the
scoring error and the sentence falls within the appropriate guidelines range.” People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). After reducing defendant’s OV 13 score
to zero points, his OV total is reduced to 1 point, and his OV level changes to I. Accordingly,
defendant’s minimum sentence guidelines range is 9 to 46 months, taking into account his fourth
habitual offender status. Defendant’s minimum sentence of 36 months is within this range.
Additionally, the trial court, after being made aware of this error, clearly indicated that it would
not change defendant’s sentence. Therefore, defendant is not entitled to resentencing.
Affirmed and remanded for a correction of defendant’s sentencing information report.
We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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