PEOPLE OF MI V DEWAYNE MARQUIS BINYARD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 12, 2010
Plaintiff-Appellee,
v
No. 290259
Wayne Circuit Court
LC No. 08-004816-FC
DEWAYNE MARQUIS BINYARD,
Defendant-Appellant.
Before: WILDER, P.J., and CAVANAGH and SAAD, JJ.
PER CURIAM.
A jury convicted defendant of first-degree murder, MCL 750.316, assault with intent to
murder, MCL 750.83, felon in possession of a firearm, MCL 750.227f, and possession of a
firearm during the commission of a felony, MCL 750.227b. This case arises out of a shooting
that occurred on March 2, 2008, at Oscar’s Coney Island in Detroit. One victim died of multiple
gunshot wounds and the other victim sustained serious injuries from the gunshots. Defendant
appeals his convictions and, for the reasons set forth below, we affirm.
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Defendant contends that he was denied the effective assistance of counsel because his
trial attorney failed to present an alibi defense. This Court granted defendant’s motion for a
Ginther1 hearing to develop a factual record regarding his ineffective assistance of counsel claim.
The trial court conducted the hearing and, after considering the evidence presented, denied
defendant’s motion for a new trial. “We review the trial court’s findings of fact at a Ginther
hearing for clear error, and review questions of constitutional law de novo.” People v
McCauley, 287 Mich App 158, 162; 782 NW2d 520, 523 (2010). As this Court explained in
People v Petri, 279 Mich App 407, 410-411; 760 NW2d 882, 885 (2008):
Effective assistance of counsel is presumed and defendant bears the
burden of proving otherwise. [People v LeBlanc, 465 Mich 575, 578; 640 NW2d
246 (2002).] To succeed on a claim of ineffective assistance of counsel, the
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-1-
defendant must show that, but for an error by counsel, the result of the
proceedings would have been different, and that the proceedings were
fundamentally unfair or unreliable. People v Odom, 276 Mich App 407, 415; 740
NW2d 557 (2007). The defendant bears a “heavy burden” on these points.
People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Defendant must
overcome a strong presumption that counsel’s performance constituted sound trial
strategy. People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611
(2003). “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.” People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001).
We hold that the trial court did not clearly err when it ruled that defendant failed to
timely inform defense counsel about his alibi witnesses. On the third day of trial, defense
counsel stated on the record that defendant told him that he wished to present three witnesses
who would testify that defendant was not at the scene of the crime. Defense counsel informed
the court that this was the first time defendant told him about the existence of the witnesses.
Because the defense was required to give notice of an alibi defense in advance of trial, MCL
768.20(1), the trial court did not grant defense counsel additional time to pursue the matter. At
the Ginther hearing, defense counsel reiterated that, until the third day of trial, defendant failed
to inform him that he knew of three witnesses who could testify that he was elsewhere at the time
of the shooting. Defendant testified to the contrary and maintained that he repeatedly told
defense counsel about the three alibi witnesses.
Simply put, the trial judge found defense counsel’s explanation more credible.
Generally, “if resolution of a disputed factual question turns on the credibility of witnesses or the
weight of the evidence, we will defer to the trial court, which had a superior opportunity to
evaluate these matters.” People v Sexton, 461 Mich 746, 752; 609 NW2d 822 (2000). We
further note that, at the Ginther hearing, defendant failed to present the testimony of the alleged
alibi witnesses. Defendant attached to his brief on appeal affidavits of two witnesses, both of
whom asserted that defendant was at an address on Fairfield when the shootings occurred at Six
Mile and Wyoming. Those affidavits were signed on April 24, 2009. However, at the Ginther
hearing on November 20, 2009, defendant presented no evidence that the witnesses would
support his alibi defense and, indeed, defendant’s appellate attorney stated on the record that he
spoke to two of the witnesses and he did not “believe that they would support the motion that is
before the Court.” In other words, when asked by counsel, two of the witnesses could not or
would not provide testimony to support defendant’s alibi. Defendant’s appellate counsel further
stated that, after many efforts, he was unable to contact the third witness to present any evidence
to the trial court. Because defendant did not present this evidence in the trial court, we have no
basis to review it on appeal but, more importantly, the trial court did not err when it concluded
that defendant made no effort to bring the witnesses to defense counsel’s attention until trial was
well under way. Accordingly, the trial court correctly ruled that defense counsel did not provide
ineffective assistance to defendant at trial.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecutor presented insufficient evidence to show that he was
the person who shot the two victims. “In challenges to the sufficiency of the evidence, this Court
reviews the record evidence de novo in the light most favorable to the prosecution to determine
-2-
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond a reasonable doubt.” People v Roper, 286 Mich App 77, 83; 777 NW2d
483 (2009).
Here, ample evidence supported the jury’s verdict. Norris Elkins witnessed the shooting
and testified at trial that he had “[n]o doubt” that defendant was the shooter. He further testified
that, though he failed to initially identify defendant from a photographic array, he called the
police department later the same day and stated that he believed the perpetrator was pictured in
the first numbered photo, which was a photo of defendant. Again, however, Mr. Elkins made a
positive, unequivocal identification of defendant in the trial court. Myron Logan was also at the
scene of the crime. According to homicide investigator Donald Olson, Mr. Logan immediately
identified defendant as the shooter when he viewed the photo array. Mr. Logan acknowledged at
trial that he picked defendant out of the photographs and the array shows that he placed his
initials on defendant’s photo when he made the identification. Though Mr. Logan testified at
trial that he is on medication for a mental illness and has memory problems, Officer Olsen
testified that, when Mr. Logan identified defendant on the day of the crime, it did not appear that
he was on drugs or had any mental problems.
Other evidence also supported defendant’s conviction. Mr. Elkins testified that, after the
shooting, defendant walked out of the Coney Island and got into a red Mercury Sable. In an
attempt to stop defendant, Mr. Elkins rammed the Sable with his own vehicle. Defendant fled on
foot, leaving behind the .44 Magnum revolver that ballistics tests confirmed was used in the
shooting. It is undisputed that defendant’s girlfriend was the owner of the red Mercury Sable
found at the scene of the shooting and photographs show the body damage caused by Mr.
Elkins’s attempts to stop defendant from fleeing the scene.
Beverly Lane, the mother of defendant’s girlfriend, testified that, shortly after the
shooting, defendant woke her up and asked to use her car. Ms. Lane assumed defendant had
damaged her daughter’s car and she overheard defendant say that he had an altercation with
some men at the Coney Island. Lawrence Works lived in the same house with Ms. Lane and
defendant’s girlfriend. He testified that, on the morning of the incident, defendant told him he
had a confrontation with some men and he asked for a gun. Mr. Works testified that he gave
defendant a .44 Magnum revolver and defendant left with it. Defendant returned a half hour to
an hour later and used Mr. Works’s cellular phone to ask someone to pick him up. Mr. Works
further acknowledged that he heard defendant tell his girlfriend that she should report that her car
was stolen. Defendant’s girlfriend testified at trial that defendant went to the Coney Island
around the time of the shooting and that he drove her red Sable. Though she denied it at trial,
defendant’s girlfriend testified under an investigative subpoena that she heard defendant say that
he shot some men and that defendant asked her to report her car stolen.
The above evidence is clearly sufficient to support the jury’s verdict. However,
defendant attached three affidavits to his brief on appeal, signed by Ms. Lane, Mr. Works, and
defendant’s girlfriend, containing various factual assertions that conflict with or recant their
previous trial testimony. Because these were not made part of the record in the trial court, either
through a motion for a new trial or a motion for relief from judgment, we will not consider them
on appeal. People v Williams, 241 Mich App 519, 524 n 1; 616 NW2d 710 (2000). In any case,
even excluding the testimony of the three witnesses, defendant was positively identified as the
shooter and other circumstantial evidence linked him to the crime.
-3-
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Henry William Saad
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.