PEOPLE OF MI V ADRIAN MAHDEE AKRAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 31, 2010
Plaintiff-Appellee,
v
No. 283161
Wayne Circuit Court
LC No. 07-012443-FC
ADRIAN MAHDEE AKRAM,
Defendant-Appellant.
Before: SAAD, P.J., and HOEKSTRA and SERVITTO, JJ.
SAAD, P.J. (concurring in part and dissenting in part).
Though I concur with the analysis in part II of the majority opinion on defendant’s
remaining issues, I respectfully dissent from the majority’s holding that defendant established
that he was prejudiced by his counsel’s failure to present his alibi defense. Because I would hold
that defendant failed to establish prejudice, I would affirm his convictions.
In People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481 Mich 1201
(2008), our Supreme Court reiterated that, to establish prejudice, “a defendant ‘must show the
existence of a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different.’” Id. at 125 n 9, quoting People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001). Prejudice is not presumed if counsel’s conduct prevented the presentation of
a defense. Rather, the defendant must show a reasonable probability that he would have been
acquitted if defense counsel had presented the disputed evidence. Id.
The trial court did not clearly err when it found defendant’s alibi witnesses incredible.
Evidence at trial showed that the shooting occurred at around 5:30 p.m. Raquel Akram,
defendant’s sister-in-law, testified at the Ginther hearing that she saw defendant in the hallway
outside of a visitation room at a funeral home when she walked past him to get to James Hunter,
a family friend, who was on the porch of the funeral home. She indicated this took place at 5:30,
and that she then walked Hunter from the porch to the visitation room and back again. She did
not indicate whether she saw defendant on these other trips. She testified that she saw defendant
again at about 6:00 p.m. when she walked outside to the parking lot. Hunter’s testimony
contradicted Raquel’s testimony with respect to time. Hunter testified that he arrived at the
funeral home at about 4:15 or 4:20 p.m., saw defendant in the lobby, and Hunter remained “in
the lobby for a minute. Then Raquel had escorted me to the body.” Further, none of the other
alibi witnesses who testified at the Ginther hearing specifically placed defendant at the funeral
home at around the time of the shooting. Rather, they indicated that they saw defendant at the
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funeral home upon their arrival, and saw him in various locations of the funeral home throughout
the visitation. The witnesses’ testimony also varied regarding what time defendant first arrived
at the funeral home. Andre Akram, defendant’s brother, indicated that defendant arrived at 4:30
or 4:40 p.m., or as late as 5:10 p.m., but Kamilah Helton, Antone Webb, and Hunter testified that
they saw defendant when they arrived at the funeral home around 4:00 or 4:15 p.m. Although
Hunter and Webb testified that they spent time outside in the parking lot and observed defendant
in the lobby inside the funeral home throughout the visitation, Raquel testified that defendant
was outside “[i]n front of the funeral home” when she went to the parking lot at about 6:00 p.m.
Further, Helton’s testimony conflicted with Raquel’s testimony regarding when Raquel arrived.
Moreover, Helton’s testimony differed from Andre’s testimony because Helton stated that
Raquel walked her up to view the casket, while Andre testified that he brought Helton up to view
the casket. The trial court found the alibi witnesses’ testimony incredible and “general, vague,
nebulous and conclusory.” In addition to their contradictory testimony, all of the Ginther
witnesses were either relatives or friends of defendant, which is a factor that weighs on their
credibility. Giving deference to the trial court’s superior position to assess the demeanor of the
alibi witnesses and determine their credibility, the trial court’s finding with regard to their
credibility was not clearly erroneous. Dendel, 481 Mich at 130.
In addition to the lack of credibility of the witnesses, and notwithstanding defendant’s
complaint that the prosecution’s case rested on weak evidence, ample evidence supported
defendant’s convictions. As an initial matter, by its verdict, the jury found the evidence
sufficient and the witnesses sufficiently credible. “[P]ositive identification by witnesses may be
sufficient to support a conviction of a crime.” People v Davis, 241 Mich App 697, 700; 617
NW2d 381 (2000). Further, we defer to the jury’s assessment of eyewitnesses’ credibility.
People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999). Lawrence Archer promptly
identified defendant in the photographs the police showed him after the shooting and was “[a]
hundred percent positive” that defendant was the shooter. Archer had interacted with defendant
three or four times before the shooting when he bought DVDs from defendant, and he saw
defendant fire three shots at the victim. The other eyewitness who testified at trial, Damia
Johnson, was walking next to the victim when she saw defendant approach with a gun and shoot
the victim three times. Though she could not identify defendant in the police’s photographs that
were shown to her after the incident, Johnson explained that defendant looked different in the
photograph and she nonetheless recognized defendant at trial. Detroit Police Sergeant Kevin
Hanus agreed that defendant looked different in the photograph than he did in person.
Evidence also showed that the distance from the funeral home to the site of the shooting
is 5.8 miles, and half of the route is on the freeway. Archer, who witnessed the murder, testified
that defendant fled the scene of the shooting in a vehicle that was waiting nearby. Thus, it is
possible that, even if defendant was seen at the funeral home, he could have left for a short time
to shoot the victim, and then returned.
Defendant takes issue with some of the evidence the trial court cited in support of its
finding that defendant failed to show prejudice. Contrary to defendant’s assertions, Johnson and
Archer’s testimony was consistent with the medical examiner’s testimony. Johnson and Archer
testified that there were a total of three gunshots and that, when defendant began shooting, the
victim fell and tried to raise his hands in a defensive gesture. The medical examiner testified that
the victim sustained six gunshot wounds, but opined that the wounds could have been made by as
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few as three gunshots if the victim had held his hands up in a defensive manner. The victim also
suffered an abrasion on his right elbow, which indicated a “terminal fall” to the ground. This
was consistent with Johnson and Archer’s testimony.
Further, though Johnson denied that she stated at the scene that she knew who shot the
victim, Leartis Tyner stated that Johnson told him after the incident that she knew the identity of
the shooter and Detroit Police Officer Gordon Hampton confirmed that Tyner’s police statement
reflected this. Evidence also supported the trial court’s observation that Johnson was scared to
reveal the identity of the shooter. Johnson testified that she wanted to assist the police, but she
and her family were scared because she had heard “stories about witnesses” and what can happen
when they testify.
Defendant also contends that the trial court erred when it found that Johnson saw the
shooter’s face. While Johnson stated that she was looking at the victim during the shooting and
was in shock, she also testified that she saw defendant as he approached the victim; she
identified defendant as the person with the gun; and, she testified that defendant looked different
in the police photograph than he looked at trial or on the day of the shooting. She also realized
that defendant was the shooter a week before trial, when she went over the incident in her mind
and “had a vision of his face.”
Based on the evidence, defendant has not shown a reasonable probability that the
outcome of his trial would have been different if defense counsel had presented his alibi
witnesses. Accordingly, I would hold that he is not entitled to relief on the ground that his trial
counsel was ineffective and I would affirm his convictions.
/s/ Henry William Saad
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