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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MALCOLM ERIC LANG, Defendant-Appellant.

UNPUBLISHED November 16, 2006

No. 263050 Genesee Circuit Court LC Nos. 04-013833-FC; 04-013837-FC

Before: Whitbeck, C.J., and Sawyer and Jansen, JJ. PER CURIAM. A jury convicted defendant Malcolm Lang of two counts of armed robbery.1 The trial court sentenced Lang as an habitual offender, fourth offense,2 to concurrent prison terms of 30 to 50 years for each conviction. He appeals as of right. We affirm. I. Basic Facts And Procedural History Lang was charged with three separate armed robbery offenses arising out of a series of robberies perpetrated against women at apartment complexes in February 2004, along an area of Maple Road that separates the city of Burton from Grand Blanc Township. Each victim identified Lang as the robber, both at trial and in an earlier photographic array that was shown to each victim on February 23, 2004. But there was evidence that the police initially arrested someone else after the first victim, Leslie Daniels, was robbed at knifepoint on February 17, 2004, at the Boulder Creek Apartments. The second victim, Renita Frye, was robbed in a parking area of the Maplebrook Village Apartments at approximately 3:00 a.m. on February 20, 2004, as she was returning home from work. Although Frye did not see a weapon, she thought that Lang had a weapon in his pocket. According to Frye, Lang pushed her against a truck and took her cell phone and two necklaces. Frye stated that Lang departed after having her walk with him to an unlit area of the parking lot.

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MCL 750.529. MCL 769.12.

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Frye testified that Lang was sipping a drink with a straw from a cup when he first approached her outside her car, but dropped the cup during the robbery. Frye later pointed out the cup to a police officer, who collected it as evidence. Susan Bach, an expert in DNA analysis, testified that she determined from an analysis of a piece of the straw that at least two males contributed to the DNA mixture found on the straw. Kathy Fox, an expert in forensic science and DNA analysis, testified that Lang's DNA profile could not be excluded from the DNA types on the straw. The third victim, Marniece Hammon, was robbed at the Boulder Creek Apartments at approximately 10:25 p.m. on February 21, 2004, as she was returning home from work. Hammon testified that she did not see a weapon during the robbery, but saw that Lang had his hand in his pocket and acted like he had a gun. Hammon stated that she gave $60 to Lang, but he did not leave until after he patted her down for other property items and she started crying. The jury convicted Lang of the armed robbery charges involving Frye and Hammon, but acquitted him of the charge that he robbed Daniels. II. Ineffective Assistance Of Counsel A. Standard Of Review Lang seeks a new trial on the ground that defense counsel's failure to timely move for a defense expert to review the results of the DNA tests constituted ineffective assistance of counsel. Lang argues that a defense expert could have better explained to the jury why his DNA profile could have been absent from the DNA mixture found on the straw. Because Lang failed to move for a new trial or Ginther3 hearing in the trial court, we limit our review to mistakes apparent from the record.4 B. Legal Standards To establish ineffective assistance of counsel, a defendant "must show that his attorney's representation fell below an objective standard of reasonableness and that this was so prejudicial to him that he was denied a fair trial."5 With regard to defense counsel's performance, a defendant must overcome a strong presumption that defense counsel's actions constituted sound trial strategy.6 Decisions whether to call witnesses are generally presumed to be matters of trial

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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). People v Rodgers, 248 Mich App 702, 713-714; 645 NW2d 294 (2001). People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Id.

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strategy.7 To establish ineffective assistance of counsel, a defendant must show that he was deprived of a substantial defense that would have affected the outcome of the proceeding.8 C. Applying The Standards Here, the record indicates that defense counsel was appointed to represent Lang in October 2004, after the trial court granted Lang's retained attorney's motion to withdraw. In November 2004, the trial court rescheduled the trial for January 11, 2005, to accommodate a defense motion for DNA testing. A hearing was held on December 1, 2004, because Lang would not consent to providing a DNA sample, but rather sought to have an existing DNA sample in his prison record used for DNA testing. The trial court granted the prosecutor's motion to have Lang provide a DNA sample. The results of the DNA tests were available to defense counsel approximately three weeks before trial began on April 11, 2005. Defense counsel moved on the first day of trial for an expert to review the results solely at Lang's request. Defense counsel informed the trial court, "DNA is only [sic] one of the three cases and it's of minor

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