PEOPLE OF MI V ALEXIS ALEXANDER LEGREE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 19, 2006
Plaintiff-Appellee,
v
No. 265577
Kent Circuit Court
LC No. 02-009102-FH
ALEXIS ALEXANDER LEGREE,
Defendant-Appellant.
Before: Murphy, P.J., and Smolenski and Kelly, JJ.
PER CURIAM.
Defendant appeals by right his jury trial conviction of delivery of less than 50 grams of
cocaine, MCL 333.7401(2)(a)(iv). He was sentenced as a fourth habitual offender, MCL 769.12,
to one to 20 years in prison. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Undercover officers used marked currency to purchase a substance they believed to be
crack cocaine from defendant and an acquaintance, Casey Wolfe. The substance was field tested
for cocaine, and was later sent for laboratory analysis. Defendant denied participating in the sale
and maintained that he was only present while Wolfe completed the transaction.
On appeal, defendant argues that he is entitled to a new trial because he received
ineffective assistance of counsel. He argues that trial counsel acted inappropriately when he
stipulated to the introduction of the laboratory test results. The trial court denied his motion for a
new trial based on this claim. This issue has been preserved. People v Sabin (On Second
Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Defendant also argues that
substitute counsel rendered ineffective assistance by failing to visit him at the jail prior to trial.
However, because defendant did not move for a new trial or a Ginther1 hearing on this ground,
this issue has not been preserved. Id. 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).
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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In order to establish ineffective assistance, defendant must establish that counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms, and must show a reasonable probability that the outcome of the proceedings would have
been different in the absence of counsel’s unprofessional errors. Sabin, supra at 658-659. He
must also overcome a strong presumption that counsel’s actions were strategic. Id. We will not
substitute our judgment for that of counsel regarding matters of trial strategy, nor will we assess
counsel’s competence with the benefit of hindsight. People v Matuszak, 263 Mich App 42, 58;
687 NW2d 342 (2004).
Defendant first argues that he was denied the effective assistance of counsel because he
was denied counsel during a critical stage of the proceedings. He bases this argument on the fact
that his substitute trial counsel held a private meeting with him only once while he was at the
county jail. As an offer of proof, defendant presents a log of visits he received while he was
incarcerated before trial. Counsel met with defendant at the jail on one occasion, after the jury
had been chosen.
Defendant does not explain how his attorney’s failure to visit with him at the jail affected
his defense, but instead maintains that he is not required to prove actual prejudice because the
denial of counsel at a critical stage in the proceedings requires an automatic reversal. See United
States v Cronic, 466 US 648, 659 n 25; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Willing,
267 Mich App 208, 224; 704 NW2d 472 (2005). However, while defendant has shown that
counsel did not meet with him at his cell prior to trial, he has not shown that he was deprived of
the assistance of counsel prior to that time. Defendant has not alleged that he had no other
contact with his attorney prior to trial. He has not presented a phone record to suggest that
counsel did not speak with him on the phone. Nor does he discuss whether he engaged in any
written correspondence with his attorney.
In addition, the record contradicts defendant’s assertion that he was denied counsel
during this portion of the proceedings. The trial court’s docket entries indicate that trial was set
to begin on March 9, 2005, but was postponed, apparently to allow newly appointed substitute
counsel a chance to become familiar with the case. Moreover, on July 7, 2005, defendant moved
the court for substitute counsel before sentencing. He complained that his trial counsel
“attempted to coerce (him) into a plea that would admit false guilt on my behalf.” The parties
discussed this plea offer before trial, and defendant rejected it. This evidence strongly suggests
that counsel contacted defendant prior to trial to discuss his options. We find that defendant has
failed to show that he was deprived of counsel during a critical stage of the proceedings.
Defendant also argues that trial counsel rendered ineffective assistance by stipulating to
the introduction of laboratory test results showing that the tested substance was cocaine. The
report contained the name of another individual. That name had been crossed out and apparently
replaced with defendant’s name in marker or pencil. During trial, defense counsel stipulated to
the admission of the report, but not to its accuracy. During his closing arguments, defense
counsel argued that the lab test results presented by the prosecutor were not, in fact, the test
results for the substance taken from defendant and Casey Wolfe. Counsel maintained that the
prosecutor had failed to show beyond a reasonable doubt that the substance taken from defendant
was actually cocaine. The prosecutor countered by arguing that the error in the report was a
typographical error, and that defendant should have challenged the admission of the document
when the prosecutor sought to admit it.
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Defendant maintains that counsel’s actions were objectively unreasonable. We disagree.
Decisions as to what evidence to present and whether to call or question witnesses are presumed
to be matters of trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
We find that defense counsel had a clear strategy for undermining this portion of the prosecutor’s
case. Rather than challenging the admission of the document at the outset and having the
prosecutor present evidence to refute defendant’s claim that the results were not from the
substances received from Wolfe, defense counsel was able to challenge the validity of the results
and argue that the prosecutor’s error should cause the jury to acquit defendant. That a strategy
does not work does not render its use ineffective assistance of counsel. People v Kevorkian, 248
Mich App 373, 414-415; 639 NW2d 291 (2001).
Defendant cannot show that any error on the part of trial counsel affected the outcome of
the case. Defendant has not presented any evidence that the test results were not, in fact, those
applicable to his case. He cannot show that, had counsel objected to the introduction of the
report, it would not ultimately have been admitted.
We find that defendant has failed to provide support for this claim of ineffective
assistance of counsel. In addition, although defendant alternatively requests a remand for a
Ginther hearing, nothing presented here suggests that a remand would benefit him.
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Kirsten Frank Kelly
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