PEOPLE OF MI V ROBERT MOORE KEALOHAPAUOLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 20, 2008
Plaintiff-Appellee,
v
No. 279238
Wayne Circuit Court
LC No. 06-011077-01
ROBERT MOORE KEALOHAPAUOLE,
Defendant-Appellant.
Before: Jansen, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree premeditated murder,
MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to
concurrent terms of life imprisonment for the murder conviction and 38 to 60 months’
imprisonment for the felon-in-possession conviction, to be served consecutively to a two-year
term of imprisonment for the felony-firearm conviction. He appeals as of right. We affirm.
First, defendant argues that the trial court abused its discretion when it denied his motion
for an adjournment of trial in order to locate and subpoena a potential eyewitness. We disagree.
“No adjournments, continuances or delays of criminal causes shall be granted by any court
except for good cause shown . . . .” MCL 768.2. We review a trial court’s ruling on a motion for
an adjournment for an abuse of discretion. People v Snider, 239 Mich App 393, 421; 608 NW2d
502 (2000). When deciding whether the trial court abused its discretion, we consider whether
the defendant asserted a constitutional right, had a legitimate reason for asserting the right, had
been negligent, or had requested previous adjournments. People v Lawton, 196 Mich App 341,
348; 492 NW2d 810 (1992). A defendant must also show prejudice as a result of the trial court’s
alleged abuse of discretion in denying an adjournment. Id.
Defendant waited until the third day of trial to request an adjournment to secure “key”
witnesses. Despite the timing of defendant’s request, the trial court granted defendant a one-day
continuance, which defendant indicated “was all he needed” to secure the witnesses. On the
morning of the fourth day of trial, one potential witness came to court and, in an offer of proof,
testified that he did not have any personal knowledge about the charged offense but knew an
alleged witness who might come to court and testify. However, he did not reveal the name of the
alleged witness or reveal what information the witness could provide. Rather, the essence of his
testimony was that he did not know if the eyewitness would actually testify, but he “wanted a
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chance to tell him” and “see if he’ll come [to court].” Under these circumstances, it was
unreasonable to further delay trial in an attempt to locate an unnamed witness who had not come
forward and whose testimony was unknown. Even on appeal, defendant has not provided a
witness affidavit or identified any evidence establishing the identity of the unnamed eyewitness,
what his testimony would have been, or how the testimony might have been helpful. Under
these circumstances, the trial court did not abuse its discretion when it denied defendant’s
request for an adjournment.
We also reject defendant’s general claim that the trial court’s denial of his request
deprived him of his constitutional right to present a defense. Although a defendant has a
constitutional right to present a defense, US Const, Am VI; Const 1963, art 1 § 20, he must still
comply with procedural and evidentiary rules established to assure fairness and reliability in the
verdict. See People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984); People v Arenda, 416
Mich 1, 8; 330 NW2d 814 (1982). Here, the trial court did not preclude defendant from
presenting a defense; rather, it refused to delay trial for a witness who had not previously been
disclosed and whose name, whereabouts, and proposed testimony were unknown.
Next, defendant argues that his trial counsel was ineffective for failing to investigate and
subpoena four witnesses. We disagree.1 The failure to call a supporting witness does not
necessarily constitute ineffective assistance of counsel, and there is no “unconditional obligation
to call or interview every possible witness suggested by a defendant.” People v Beard, 459 Mich
918, 919; 589 NW2d 774 (1998). Rather, decisions concerning which witnesses to call are
presumed to be matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887
(1999). “In order to overcome the presumption of sound trial strategy, the defendant must show
that his counsel’s failure to call [the] witnesses deprived him of a substantial defense that would
have affected the outcome of the proceeding.” People v Daniel, 207 Mich App 47, 58; 523
NW2d 830 (1994).
Defendant asserts that he informed his counsel about four witnesses, none of whom were
called at trial. Although defendant asserts that the witnesses would have corroborated his
version of certain events, he does not identify the witnesses in his brief and he has not provided
any independent proof of the substance of their proposed testimony. Furthermore, even if the
witnesses would have been called and testified, their testimony would not have provided a
1
Because defendant failed to raise this issue in a motion for a new trial or a request for an
evidentiary hearing, our review is limited to mistakes apparent on the record. People v Ginther,
390 Mich 436, 443; 212 NW2d 922 (1973); People v Sabin (On Second Remand), 242 Mich App
656, 658-659; 620 NW2d 19 (2000).
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 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).]
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substantial defense. Defendant asserts that two male witnesses could have corroborated his
testimony that he told people at his house that he heard arguing and gunshots at the victim’s
home and then ran home. Even if true, such testimony would only establish what defendant
purportedly told the witnesses; it would not establish that defendant was not involved in the
victim’s shooting. Defendant asserts that the witnesses also would have contradicted his
girlfriend’s testimony that he confessed to the crime. According to defendant’s girlfriend,
however, defendant confessed to killing the victim when they were alone together in the bed.
Thus, neither witness could have provided a substantial defense.
Defendant further asserts that two female witnesses would have testified that they heard
defendant and his girlfriend argue about the paternity of her unborn child, which would have
corroborated defendant’s testimony that she testified falsely against him because he broke up
with her after learning that he was not the father. However, defendant’s girlfriend testified
regarding the timeline of their relationship, including that she was pregnant when she moved in
with defendant, and that defendant had always known that he was not the father of her unborn
child. Also, the paternity issue was explored at trial, so the jury was aware of its potential impact
on the girlfriend’s testimony. Further, defendant’s suggestion that his girlfriend was testifying
against him because he did not want anything more to do with her was contradicted by
defendant’s admission that he wrote a letter to his girlfriend when he was in custody in which he
expressed his love for her. Accordingly, counsel’s failure to call these witnesses did not deprive
defendant of a substantial defense.
Finally, the proposed testimony would do nothing to counteract the testimony of two
independent eyewitnesses who were familiar with both defendant and the victim. Both witnesses
testified that defendant and the victim were involved in an altercation approximately one week
before the shooting. On the day of the shooting, the two men heard several gunshots, saw the
victim stumble outside and fall, and went outside to assist him. During that time, the victim
identified defendant as the shooter. As neighbors waited with the victim for an ambulance, they
saw defendant return and shoot the victim two more times. This testimony corroborated
defendant’s girlfriend’s testimony that defendant confessed to killing the victim, as well as the
details of the offense. Defendant testified that he had no problems with either eyewitness, and he
provided no reason to explain why they would offer false testimony against him. Given these
circumstances, there is no basis to conclude that there is a reasonable probability that the jury’s
verdict would have been different if defense counsel had introduced the proposed testimony.
Defendant also argues in propria persona that defense counsel was ineffective for failing
to locate and subpoena several eyewitnesses who could have supported his defense.2 On appeal,
defendant has submitted his own affidavit and affidavits from two individuals indicating that
they would have provided testimony favorable to the defense. Because these affidavits were not
presented below, they are not part of the existing record. MCR 7.210(A)(1); People v Wiley, 112
Mich App 344, 346; 315 NW2d 540 (1981). Furthermore, they do not support defendant’s
request for a remand for an evidentiary hearing on this issue. MCR 7.211(C)(1)(a)(ii).
2
Once again, because defendant failed to raise this issue in the trial court, our review is limited
to mistakes apparent on the record. Ginther, supra; Sabin, supra.
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In her affidavit, Keaosha Kealohapauole averred that she heard defendant’s girlfriend tell
defendant that he was not the father of her unborn child, and that after defendant told his
girlfriend “they were done,” his girlfriend remarked that defendant “was gonna get his and that
she was the wrong one to mess with.” Again, defendant’s girlfriend’s motives for testifying
were fully explored at trial. Further, she did not provide the principal testimony linking
defendant to the charged shooting. Accordingly, there is no reasonable probability that, but for
counsel’s failure to secure Keaosha’s testimony, the jury’s verdict would have been different.
Quashela Kealohapauole averred in her affidavit that she and defendant went to the
victim’s house to obtain marijuana and, after defendant entered the walk-in porch, she heard
gunshots and saw defendant jump from a window. She claimed that she immediately “pulled
off” and went to defendant’s house, and defendant returned before she and a friend left to find
him. This testimony would place defendant at the victim’s residence at the time of the shooting,
but it would not exonerate him because Quashela admittedly did not have sight of him at the time
the shots were fired. Further, because Quashela left after seeing defendant jump through a
window, her testimony would have no bearing on the testimony of the two independent
witnesses who testified that the victim identified defendant as the shooter and that they saw
defendant return and shoot the victim two more times. Given these circumstances, there is no
reasonable probability that Quashela’s testimony would have affected the jury’s verdict.
Defendant has not provided witness affidavits for Daniel Andre, Ebony Smith, Crystal
Banks, and Mark Spears, or identified any evidence of record establishing that they could have
provided testimony favorable to the defense that may have affected the outcome of trial.
Defendant’s unsupported assertion that these witnesses would have supported his defense is
insufficient to establish his assertion of error. See Mitcham v Detroit, 355 Mich 182, 203; 94
NW2d 388 (1959).
Finally, defendant argues in propria persona that an affidavit from his girlfriend recanting
her trial testimony that defendant admitted killing the victim constitutes newly discovered
evidence entitling him to a new trial or an evidentiary hearing on this issue. We disagree.
To obtain a new trial based on newly discovered evidence, a defendant must demonstrate
the following: “(1) the evidence itself, not merely its materiality, was newly discovered; (2) the
newly discovered evidence was not cumulative; (3) the party could not, using reasonable
diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a
different result probable on retrial.” People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003)
(internal citation omitted).
New evidence in the form of a witness’s recantation testimony has traditionally been
regarded as suspect and untrustworthy. People v Barbara, 400 Mich 352, 362-363; 255 NW2d
171 (1977). This Court has repeatedly expressed reluctance to grant a new trial on the basis of
such evidence. People v Canter, 197 Mich App 550, 560; 496 NW2d 336 (1992). As previously
indicated, defendant’s girlfriend’s motives for testifying and her possible coercion were fully
explored at trial. Further, her testimony was not the sole crucial evidence against defendant. For
these reasons, the alleged new evidence does not make a different result probable on retrial.
Accordingly, neither a new trial nor an evidentiary hearing is warranted.
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Affirmed.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
/s/ Donald S. Owens
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