Ineffective assistance of counsel; Failure to present evidence as to where exactly on defendant’s person the holster was located; Trial strategy; Sufficiency of the evidence; Felony-firearm; Consecutive sentencing; Judgment of sentence (JOS); Michigan State Police (MSP)

The court held that defendant was not denied the effective assistance of counsel and rejected his legal challenge to his felony-firearm convictions. Thus, it affirmed, but remanded to the trial court to amend defendant’s JOS such that his CCW sentence runs concurrently to his two felony-firearm sentences. He was convicted of FIP, FIP of ammunition, CCW, and felony-firearm, second offense. He was sentenced, as third-offense habitual offender, to concurrent terms of 1 to 5 years for FIP, as well as 1 to 10 years for FIP of ammunition and for CCW, to run consecutively with sentences of 5 years for each of his felony-firearm convictions, which run concurrently with each other. The case arose from a traffic stop effectuated by MSP troopers in response to a report that gunshots had been fired. Defendant argued, “in essence, that counsel should have made clear to the jury that the holster was in his pocket at the time of his arrest, rather than being worn.” He also argued that “he told his trial counsel that he wanted to testify at trial to explain that he was not wearing the holster, and instead the holster was ‘serving as a pill bottle’ and being used to hold ‘some pills that he and his companions were sharing.’” The court held that because “defendant expressly testified under oath that he agreed with trial counsel’s strategic decision not to testify, the latter argument” was waived. Further, counsel “relied during closing argument on the fact that it made little sense for defendant to have retained the holster but not the gun, and counsel could have concluded that defendant’s testimony would have opened the door to more damaging testimony.” Given that the holster was specifically fitted to the gun, the court thought that such a risk would have been a serious one. Thus, it could not hold that “counsel’s advice against defendant testifying was unsound trial strategy.” The argument as to the specific location of the holster was a much closer one, however, because that information could have been elicited from an officer on cross-examination. The court was unable to say that the absence of explicit testimony as to the specific location of the holster was harmless. Although it held that there was a reasonable probability the outcome might have differed, it was “unable to conclude that counsel’s decision not to clarify the location of the holster was an unsound strategic decision at the time it was made. Because a claim of ineffective assistance of counsel requires the establishment of both an objectively unsound strategy and a reasonable probability that the outcome would have differed,” the court rejected defendant’s claim of ineffective assistance of counsel. Moreover, because it considered his offer of proof on appeal, it could not hold that there would be any benefit to remanding for an evidentiary hearing.