Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; 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. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences of 35 to 60 years for the armed robbery and felon-in-possession convictions, which were to be served consecutive to a two-year sentence for the felony-firearm conviction. Defendant appeals as of right. For the reasons explained in this opinion, we affirm.
According to the evidence introduced at trial, on the morning of September 28, 2014, William Kirkland, who was wearing a white shirt, was approached by defendant, who was wearing a black hooded sweatshirt. Defendant pointed a gun at Kirkland and told Kirkland to hand over his "stuff" and money. Kirkland, who was scared, threw a Rolex watch and a pair of Cartier glasses, which he had bought just two days earlier after winning some money in a poker game, on the ground. Defendant picked up the items and, following a 15-minute argument with Kirkland, walked to a gray minivan and drove away. The jury convicted defendant as noted above. Defendant now appeals as of right.
I. ALIBI WITNESSES
On appeal, defendant argues that the trial court erred in precluding his two alibi witnesses from testifying at trial. In particular, on the first day of trial, defendant identified Diana Babaan as an alibi witness who would testify that she drove defendant to his mother's house on the morning of the robbery. Defendant also indicated that he wished to call his mother to testify that defendant had been dropped off at her house that morning. However, given that defendant had known of these witnesses since the date of the robbery, the trial court reasoned that defendant's failure to file a timely notice of alibi warranted the exclusion of the proposed witnesses.
We review a trial court's decision to exclude alibi testimony for the failure to provide a timely notice of alibi for an abuse of discretion. People v Travis, 443 Mich. 668, 679-680; 505 N.W.2d 563 (1993). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008).
Under MCL 768.20(1), a defendant must give advanced, written notice of an alibi defense. Specifically, MCL 768.20(1) provides that a defendant "shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve" on the prosecutor a written notice of alibi. There is no dispute that defendant failed to comply with MCL 768.20(1).
The sanction for a defendant's failure to file and serve the required notice of alibi is set forth in MCL 768.21(1): "[i]f the defendant fails to file and serve the written notice prescribed in [MCL 768.20], the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi . . . ." However, the sanction of exclusion for a defendant's failure to file the required notice is not mandatory. Travis, 443 Mich at 677-679. Rather, a trial court retains discretion to allow alibi witnesses, who were not properly disclosed, to testify. Id. Indeed, preclusion is considered an extreme sanction limited to "an egregious case." People v Merritt, 396 Mich. 67, 82; 238 N.W.2d 31 (1976). When reviewing a trial court's decision, we judge the trial court's exercise of its discretion by considering the following factors:
In this case, defendant's failure to disclose his alibi witnesses prejudiced the prosecutor. Because defendant did not disclose his alibi witnesses to the prosecutor until the first day of trial, the prosecutor never had an opportunity to interview the witnesses and to investigate their potential testimony. The reason for the delayed disclosure was that defendant did not inform defense counsel of the alibi witnesses until four days before trial, even though defendant had more than 11 months—a period in which trial was adjourned two times—to tell defense counsel about the witnesses. Defendant had a "duty to be candid and forthcoming with [his] lawyer," Taylor v Illinois, 484 U.S. 400, 418; 108 S.Ct. 646; 98 L Ed 2d 798 (1988); and his failure to share his alibi information with counsel is particularly striking given that, according to his attorney, defendant wrote counsel a letter, "indicating all of the defenses he wanted," but defendant did not mention his alibi witnesses. Similarly, months before trial, defendant wrote a letter to the trial court, offering a variety of challenges to the evidence against him, but again failing to mention his alibi witnesses. Yet, defendant admitted at trial that he had known of the witnesses since the date of the offense. In these circumstances, defendant's decision not to disclose information that was in his possession does not provide a good reason for failing to file a timely notice of alibi. No subsequent events mitigated the prejudice to the prosecutor. Although defendant now claims that any prejudice could have been alleviated by a "brief delay" to give the prosecutor time to interview the alibi witnesses, defendant did not request a continuance on the first day of trial. The longstanding rule of this state is that, absent a request for a continuance, a trial court should assume that a party does not desire a continuance. People v Elston, 462 Mich. 751, 764; 614 N.W.2d 595 (2000).
In terms of the other properly admitted evidence, there was substantial evidence of defendant's guilt. Kirkland, who was acquainted with defendant, identified defendant in a "photo show" and testified at trial that defendant, wearing a black hooded sweatshirt, stole his watch and glasses at gunpoint in a parking lot on Christie Avenue. In addition to Kirkland's testimony, Anne Mikaya and Jacqueline Ruffin, who lived in separate residences on Christie Avenue, testified that on September 28, 2014, they were woken by an argument outside. Each woman looked out a window and saw a man, dressed in black clothes, with a gun. Mikaya saw the man point the gun at the other man, who was wearing a white shirt. Ruffin woke her daughter-in-law, Constance Coleman, and when Coleman looked out a window, she also saw a man, wearing black clothes, pointing a gun at a man, who was wearing a white shirt. Officer Zachary Smigiel testified that Kirkland was wearing a white shirt on the day of the robbery. It is true that Kirkland's stolen watch and glasses were never found and that the police did not find a black hooded sweatshirt, a gun, or the gray minivan. However, defendant attempted to evade arrest by hiding in a pile of clothing; and, soon after he was arrested, defendant told someone over the phone that he "just fucked up so bad."
Considering the relevant factors, we conclude that the trial court did not abuse its discretion by precluding defendant's alibi witnesses from testifying. Travis, 443 Mich at 680, 682. Where defendant had no good reason for not making a timely disclosure of the witnesses and the prosecutor was prejudiced by the failure to disclose, the trial court's decision did not fall outside the range of reasonable and principled outcomes. See Unger, 278 Mich App at 217.
With respect to his proposed alibi defense, defendant also raises a constitutional challenge on appeal, arguing that he was denied his right to present a defense when the trial court precluded his alibi witnesses from testifying. Because defendant did not raise this argument below, it is unpreserved. People v Solloway, 316 Mich.App. 174, 197; 891 N.W.2d 255 (2016). We review unpreserved claims of constitutional error for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999).
A defendant has a constitutional right to present a defense. People v Hayes, 421 Mich. 271, 278; 364 N.W.2d 635 (1984). However, the right is not absolute. People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008). In presenting a defense, a defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v Mississippi, 410 U.S. 284, 302; 93 S.Ct. 1038; 35 L Ed 2d 297 (1973). "Such rules do not abridge an accused's right to present a defense so long as they are not `arbitrary' or `disproportionate to the purposes they are designed to serve.'" Unger, 278 Mich App at 250 (citation omitted). MCL 768.20 is an established rule of procedure, see Travis, 443 Mich at 675, and it was clearly designed to ensure fairness and reliability in the ascertainment of guilt and innocence by preventing the wrongful use of an alibi defense and by allowing the prosecution time and information to investigate the merits of such a defense. See id. at 675-676; Merritt, 396 Mich at 77. Moreover, the notice requirement, and the exclusion of witnesses for failing to comply, is neither arbitrary nor disproportionate. The statutory provisions merely represent "reasonable conditions" aimed at protecting against "an eleventh-hour" alibi defense. People v Jackson, 71 Mich.App. 395, 398-399; 249 N.W.2d 132 (1976). See also Taylor, 484 US at 411-414 & n 17. Given defendant's failure to comply with MCL 768.20, on the facts of this case, the trial court's exclusion of eleventh hour alibi witnesses did not violate defendant's right to present a defense. There was no plain error. Carines, 460 Mich at 763-764.
II. GREAT WEIGHT OF THE EVIDENCE
Defendant argues that the jury's verdict was against the great weight of the evidence. Specifically, defendant contends that the "only evidence" against him at trial was the "incredible" testimony of Kirkland, who had a motive to lie. We disagree.
Defendant did not move the trial court for a new trial on the ground that the verdict was against the great weight of the evidence, meaning that the issue is unpreserved and reviewed for plain error affecting defendant's substantial rights. People v Musser, 259 Mich.App. 215, 218; 673 N.W.2d 800 (2003). A verdict is against the great weight of the evidence when "the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." People v Lacalamita, 286 Mich.App. 467, 469; 780 N.W.2d 311 (2009). Absent exceptional circumstances, credibility determinations are the exclusive province of the jury. People v Bosca, 310 Mich.App. 1, 13; 871 N.W.2d 307 (2015). Generally, "conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial." People v Lemmon, 456 Mich. 625, 643; 576 N.W.2d 129 (1998) (citation omitted). Rather, exceptional circumstances warranting a new trial exist when "testimony contradicts indisputable physical facts or law," the "testimony is patently incredible or defies physical realities," the "testimony is material and is so inherently implausible that it could not be believed by a reasonable juror," or the "testimony has been seriously impeached and the case marked by uncertainties and discrepancies." Id. at 643-644 (quotation marks and citations omitted).
According to defendant, Kirkland's testimony was patently incredible and inherently implausible in light of several matters testified to at trial, including (1) the fact that the police never found a gun, a gray minivan, Kirkland's glasses and watch, or a black hooded sweatshirt in defendant's possession, (2) that Kirkland had a motive to lie because defendant was having a relationship with the mother of his children, (3) that Kirkland and defendant had a 15-minute conversation while defendant pointed the gun at him, and (4) that Kirkland never mentioned a man named Jay being present during the armed robbery until he testified at the preliminary examination. However, while these issues might bear on Kirkland's credibility and the weight of the evidence, none of these facts rendered Kirkland's testimony patently incredible or inherently implausible. This is especially true when there was other evidence supporting Kirkland's description of the robbery, including three witnesses who corroborated part of Kirkland's testimony to the extent they saw a man dressed in black pointing a gun at a man wearing a white t-shirt. Further, Officer Smigiel testified that Kirkland was wearing a white t-shirt on the day of the robbery; and, shortly after he was arrested, defendant told someone that he "just fucked up so bad." Because Kirkland's testimony was not patently incredible or inherently implausible, we may not interfere with the jury's determination that Kirkland's testimony was credible. Id.
Next, defendant argues that his convictions should be set aside because there was insufficient admissible evidence at the preliminary examination to bind defendant over for trial on a charge of armed robbery. However, it is well-settled that "[i]f a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the preliminary examination was sufficient to warrant a bindover." People v Wilson, 469 Mich. 1018; 677 N.W.2d 29 (2004). Defendant was fairly convicted at trial, meaning that any error in the bindover has been rendered harmless and defendant cannot now challenge the sufficiency of the evidence presented at the preliminary examination. Id.; People v Bennett, 290 Mich.App. 465, 481; 802 N.W.2d 627 (2010).
Alternatively, defendant contends that his attorney provided ineffective assistance by failing to file a motion to quash the bindover or to seek an interlocutory appeal. This unpreserved claim of ineffective assistance is without merit because any efforts by counsel to challenge the bindover would have been futile. See People v Fonville, 291 Mich.App. 363, 384; 804 N.W.2d 878 (2011). Kirkland testified at the preliminary examination that, on September 28, 2014, defendant approached Kirkland in a parking lot, pointed a gun at him, and told him to "run that shit." Kirkland was "a little petrified," and he threw his watch and glasses on the ground. Defendant picked them up. Kirkland knew defendant and he identified defendant as the robber. From Kirkland's testimony, there was evidence of each element of armed robbery, as well as probable cause to believe that defendant committed the crime. See MCL 750.529; People v Henderson, 282 Mich.App. 307, 312; 765 N.W.2d 619 (2009); People v Chambers, 277 Mich.App. 1, 7; 742 N.W.2d 610 (2007). Given that there was sufficient evidence to support the bindover, defense counsel was not ineffective in failing to file a futile motion to quash or to pursue an interlocutory appeal. Fonville, 291 Mich App at 384.
Defendant argues that his minimum sentence of 35 years' imprisonment is unreasonable and that he is entitled to resentencing because Lockridge instructs that "[r]esentencing will be required when a sentence is determined to be unreasonable." People v Lockridge, 498 Mich. 358, 392; 870 N.W.2d 502 (2015). However, defendant is mistaken in his assertion that the "reasonableness" review described in Lockridge applies to his sentence. In actuality, under Lockridge, "[a] sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." Id. (emphasis added). Defendant's minimum sentence was not a departure sentence, meaning that our review is instead governed by MCL 769.34(10), which states that "[i]f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." The decision in Lockridge "did not alter or diminish MCL 769.34(10)." People v Schrauben, 314 Mich.App. 181, 196 n 1; 886 N.W.2d 173 (2016). Thus, because defendant's sentence falls within the minimum guidelines range and he has not alleged that the trial court erred in scoring the sentencing guidelines or relied on inaccurate information, we must affirm defendant's sentence. MCL 769.34(10); Schrauben, 314 Mich App at 196.
V. STANDARD 4 BRIEF
In a Standard 4 brief, defendant raises several claims of ineffective assistance of counsel.
First, defendant argues that defense counsel was ineffective for failing to challenge the complaint. According to defendant, there was no probable cause for the warrant because the warrant for his arrest was issued three days before the date on the complaint and an affidavit of probable cause. Defendant's argument is factually unsupported. According to the documents in the lower court record, on October 13, 2014, a complaint against defendant was filed and an affidavit of probable cause was submitted. See MCR 6.101(A); MCR 6.102(B). On the same day, the district court issued a warrant for defendant's arrest.
Second, defendant argues that defense counsel was ineffective for failing to object at the preliminary examination to a receipt for Kirkland's glasses. According to defendant, the receipt was irrelevant and inadmissible because it was dated November 1, 2014, after the robbery. Defendant is correct that, at the preliminary hearing, Kirkland identified the receipt as being for his replacement glasses, and he stated that the receipt for his stolen glasses was at his house. However, the prosecutor never moved to admit the receipt for the replacement glasses into evidence, and there no indication the receipt impacted the trial court's bindover decision. Under these circumstances, defense counsel's failure to object to the receipt did not fall below objective standards of reasonableness and it did not affect the outcome of the proceedings. Uphaus (On Remand), 278 Mich App at 185.
Third, defendant argues that he was denied effective assistance of counsel because defense counsel failed to communicate with him until counsel visited defendant in jail the week before trial. Even assuming that the factual predicate of defendant's claim is true, defendant has not alleged any prejudice as a result of this deficient performance. Because prejudice is an element of an ineffective assistance of counsel claim, id., we reject this claim of ineffective assistance of counsel.
Fourth, defendant argues that defense counsel, after being informed of the alibi witnesses, failed to investigate the witnesses and to file a timely notice of alibi, thereby depriving defendant of a substantial defense. A defendant is entitled to have counsel prepare, investigate, and present all substantial defenses. In re Ayres, 239 Mich.App. 8, 22; 608 N.W.2d 132 (1999). However, "counsel cannot be found ineffective for failing to pursue information that his client neglected to tell him." People v McGhee, 268 Mich.App. 600, 626; 709 N.W.2d 595 (2005). When a defendant claims that counsel was ineffective for failing to raise a defense, the defendant must show that he made a good-faith effort to avail himself of the right to present the defense and that the defense was substantial. In re Ayres, 239 Mich App at 22.
In this case, regardless of whether the alibi witnesses would have provided a substantial defense, it was not defense counsel's performance that prohibited the presentment of this defense. Rather, defendant failed to make a good-faith effort to avail himself of the right to present the alibi witnesses. Id. By his own admission, defendant had known of the witnesses in question since the date of the robbery: September 28, 2014. Defendant was arrested in November 2014 and bound over for trial in December 2014. Yet, defendant waited approximately 11 months, until 4 days before trial, which was his third trial date, before he told defense counsel about the alibi witnesses. By that time, any notice of alibi would have been untimely. See MCL 768.20(1). Nevertheless, defense counsel did endeavor to speak with the witnesses and to introduce their testimony at trial. The trial court excluded the witnesses because a timely notice of alibi had not been filed; but, it was defendant's delayed disclosure of the witnesses that prohibited defense counsel from filing a timely notice of alibi. In these circumstances, defendant has not shown that counsel performed unreasonably or that, but for counsel's performance, there was a reasonable probability of a different outcome.
Fifth, defendant argues that defense counsel was ineffective for failing to object when the trial court assessed 25 points for PRV 1. PRV 1 addresses prior high severity felony convictions, and it is properly scored at 25 points when an offender "has 1 prior high severity felony conviction." MCL 777.51(1)(d). A conviction of "[a] crime listed in offense class M2, A, B, C, or D," if it was entered before the sentencing offense was committed, is a prior high severity felony conviction. MCL 777.51(2)(a). Before committing the present offenses, defendant was convicted of possession with intent to deliver less than 50 grams of cocaine. Possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), is a class D crime. MCL 777.13m. Because defendant had one prior high severity felony conviction, the trial court did not err in scoring PRV 1, and any objection would have been futile. Defense counsel was not ineffective for failing to make a futile objection. Fonville, 291 Mich App at 384.
Thus far in our analysis, defendant's complaints about his attorney's performance have implicated the Strickland
Finally, defendant also argues that the cumulative effect of defense counsel's errors, mistakes, and negligence deprived him of a fair trial. However, because defendant has not established any errors, there is no cumulative effect that would warrant reversal of defendant's convictions. People v Dobek, 274 Mich.App. 58, 106; 732 N.W.2d 546 (2007).