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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ANGELO LAMONT WISE, Defendant-Appellant.

UNPUBLISHED February 2, 2010

No. 286957 Wayne Circuit Court LC No. 07-021351-FC

Before: Servitto, P.J., and Fort Hood and Stephens, JJ. PER CURIAM. Defendant appeals by right his jury trial convictions of first-degree felony-murder, MCL 750.316; armed robbery, MCL 750.529; felon in possession of a firearm, MCL 750.224f; carrying a concealed weapon, MCL 750.227; and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant was sentenced to life imprisonment for the first-degree murder conviction, 50 to 75 years' imprisonment for the armed robbery conviction, 5 to 20 years' imprisonment for the felon in possession and for the concealed weapon convictions, and two years' imprisonment for the felony-firearm conviction. Defendant was sentenced as a fourth habitual offender, MCL 769.12. We affirm. FACTS In the early morning hours of September 9, 2007, defendant went to an abandoned house in the City of Detroit. Matthew McMullen and Cordell Coleman had been selling narcotics out of the home for some time, and defendant apparently purchased narcotics from McMullen. Defendant, whom McMullen was familiar with from prior drug transactions and because he resided only a few doors from McMullen's mother, returned to the home a second time that morning with a gun and robbed McMullen and Coleman of their money, drugs, and other items. During the robbery, defendant shot and killed Coleman. A. DUE DILIGENCE UNDER MCL 767.40a Defendant argues that he is entitled to a new trial because the trial judge improperly excused the prosecution from producing an endorsed witness, Freddie Simmons, at trial. We disagree.

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Normally, a trial court's determination of due diligence is reviewed for an abuse of discretion. People v Eccles, 260 Mich App 379, 389; 677 NW2d 76 (2004). However, unpreserved claims, such as this one, are reviewed for plain error, which means defendant has the burden to show that (1) an error occurred, (2) the error is plain or obvious; and, (3) the error affected a substantial right. People v Cross, 281 Mich App 737, 738; 760 NW2d 314 (2008). Under MCL 767.40a, the prosecution must notify a defendant of all known res gestae witnesses and all witnesses that the prosecution intends to produce at trial. People v Cook, 266 Mich App 290, 295; 702 NW2d 613 (2005). "A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial." Eccles, supra at 388. But "[t]he inability of the prosecution to locate a witness listed on the prosecution's witness list after the exercise of due diligence constitutes good cause to strike the witness from the list." People v Canales, 243 Mich App 571, 577; 624 NW2d 439 (2000). Before trial, Simmons was apparently in jail and the prosecutor made arrangements to have Simmons brought to court to testify. However, prior to jury selection, the prosecution informed the trial court that Simmons was no longer in custody and that several attempts to serve a subpoena had been unsuccessful. The trial judge thus agreed to sign a witness detainer order, and Simmons was located and brought to court by the police. Simmons was not called to testify that first day, and though Simmons was ordered to return the following day, he failed to appear. After the trial was adjourned on the second day, Officer Sullivan, with the assistance of witness Matthew McMullen, spent the next several hours, until 9:00 p.m., actively trying to locate Simmons. Additionally, both a special unit based out of the Detroit Police Department's Northeastern District and the Fugitive Apprehension Team attempted to locate Simmons. All of these attempts were unsuccessful. Even a cell phone number that the police got from Simmons's mother did not prove helpful when the person answering it hung up once the police caller identified himself. Defendant failed to prove that the trial court's determination that the prosecution exercised due diligence was erroneous, let alone how it would have been a "plain or obvious" error. Defendant maintains that the prosecution should have done more to secure the presence and testimony of Simmons. However, due diligence is an attempt to do everything reasonable, not everything possible, in obtaining the presence of a witness. People v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). As such, defendant failed to prove how the police efforts on behalf of the prosecution were plainly unreasonable. B. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL Defendant argues, in his Standard 4 brief, that he was denied the effective assistance of counsel at trial. We disagree. The determination of whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The court must first find the facts and then decide whether those facts constitute a violation of the defendant's constitutional right to the effective assistance of counsel. Id. The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id. Our review of this unpreserved issue is -2-

limited to errors apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). Defendants have the guaranteed right to the effective assistance of counsel. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Aceval (On Remand), 282 Mich App 379, 386; 764 NW2d 285 (2009). Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. LeBlanc, supra at 578. Generally, to establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Bell v Cone, 535 US 685, 695; 122 S Ct 1843; 152 L Ed 2d 914 (2002); People v Davenport, 280 Mich App 464, 468; 760 NW2d 743 (2008). However, such performance must be measured without the benefit of hindsight. Bell, supra at 698; People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995). Defendant first argues that his trial counsel was ineffective when she failed to properly cross-examine or impeach the medical examiner's testimony, which supposedly differed from the examiner's written report. The argument is meritless. Although not introduced at trial, the medical examiner's report was admitted at the preliminary examination. The salient portion described the bullet's path into the victim, Coridell Coleman, as being "rightward, upward, [and] backward." Dr. Boguslaw Pietak testified regarding the bullet's trajectory as follows: A. [I]n this particular case the wound track was from front to back, left to right and backward. . . . *** Q. Okay. And in an upward fashion

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