People of Michigan v. Robbie Deshawn Taylor - Affirmation of Lower Court Judgment

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• Lead Opinion from the Court Add Note # People of Michigan v. Robbie Deshawn Taylor

Michigan Court of Appeals

• Citations: None known
• Docket Number: 363131
• Precedential Status: Non-Precedential

• Disposition: Lower Court Judgment/Order Affirmed

• Opinion

• Authorities

• Cited By

• Summaries

• Similar Cases

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Disposition

Lower Court Judgment/Order Affirmed

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision
until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 27, 2026
Plaintiff-Appellee, 8:50 AM

v No. 363131
Wayne Circuit Court
ROBBIE DESHAWN TAYLOR, LC No. 15-005089-02-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

After a hung jury at his first trial, defendant was convicted, by a jury at his second trial, of first-
degree premeditated murder, MCL 750.316(1)(a), and two counts of assault with intent to commit murder,
MCL 750.83. The trial court sentenced defendant to life imprisonment without parole for his first-degree
murder conviction, and 20 to 30 years in prison for each assault conviction.

This case is now before us on collateral review. After this Court denied defendant’s initial
application,1 our Supreme Court ordered this Court to consider, as on leave granted, 2 defendant’s appeal
of the order denying his motion for relief from judgment. We affirm.

I. BACKGROUND

This appeal arises out of a May 14, 2015 drive-by shooting that killed one person and wounded
several others. The prosecution alleges that the drive-by shooting was in retaliation for a shooting in April
2015. In defendant’s direct appeal, which was consolidated with the appeal of his codefendant and
stepbrother, Edward Lee Watkins, this Court stated:

1
People v Taylor, unpublished order of the Court of Appeals, entered February 28, 2023 (Docket
No. 363131).
2
People v Taylor, 513 Mich 997 (2024).

-1-
Defendants’ convictions arise out of a drive-by shooting in Detroit on the evening
of May 14, 2015, which wounded several people and killed one. The prosecutor’s theory
of the case was that (1) [defendant Taylor, codefendant Watkins] and an accomplice,
Kenneth “Kya” Burnett, were members of a gang or rap group known as the “Turn-around
Boys” or “Turn-around Gang,” (2) they planned and committed the drive-by shooting as
retaliation against Montez “Tez” Gantz and Terry Williams, who were members of a rival
group, the “Forever Boys,” (3) [Taylor and Watkins] did so because they believed that
Gantz and Williams had shot Burnett and Taylor during a prior shooting, and (4) Taylor
was the driver of the stolen minivan that was used in the drive-by shooting, while Watkins
and Burnett were shooters. Gantz and Williams both were shot and wounded during the
drive-by shooting, but a third victim, 22-year-old Paige Walker, was killed. [People v
Watkins, unpublished per curiam opinion of the Court of Appeals, issued September 12,
2019 (Docket Nos. 340906 and 341307), p 2.]

The April 2015 shooting occurred when Burnett and defendant were followed as they drove from
a studio, and two men shot at them, wounding both. Gantz and Williams denied involvement in that
shooting, and neither defendant nor Burnett identified Gantz and Williams as the shooters. Later-obtained
text messages between defendant and Watkins, however, reflected that Watkins said Burnett had “found
one where stay” and defendant responded “I wanna see them fall myself.”

Witnesses to the May 14, 2015 shooting described a white van driving by parked cars occupied by
Williams and Walker; Gantz was standing nearby. The van slowed, the doors opened, and shots were
fired. The van drove away, and its occupants shot at another vehicle, which had just driven away from
the scene. Gantz and Williams were injured, and Walker was killed.

Gantz and Williams testified that they did not see who shot them. However, when Williams
initially was interviewed by police, he implicated defendant, and later identified defendant as the van
driver and Watkins as a shooter in photographic lineups. But at trial, Williams denied defendant and
Watkins shot him, stating he had “made up a story.” While at trial Williams denied being pressured to
recant his initial identification of defendant and Watkins, he admitted that he sent text messages to a police
sergeant before trial, expressing his reluctance to testify because of possible retaliation. He specifically
stated that if defendant and Watkins went to jail, their friends would kill him, and added he “would rather
be in jail than dead.”

Defendant’s first trial ended in a hung jury. After that trial, but before defendant’s second trial,
police apprehended Burnett, who was in possession of an AK-47 style rifle with a “drum-style” magazine
loaded with more than 50 rounds. Ballistics testing later showed that the gun seized from Burnett
discharged at least 41 of the shell casings recovered from the scene of the May 2015 drive-by shooting
that killed Walker.

On the third day of defendant’s second trial, a juror advised the trial court that some jurors were
uncomfortable given the way certain court spectators were looking at them. The trial court assured the
jurors it would ensure no intimidation occurred. Defendant moved to have that juror designated as an
alternate or otherwise for a mistrial, but the trial court declined both. Another juror later reported that a
courtroom spectator had approached him in the restroom and asked “if it was going up or down[.]”
Although the encounter made the juror a little uncomfortable, the juror said it would not affect his
judgment. The spectator, identified as defendant’s friend, admitted he approached the juror, but did not

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realize that was inappropriate. The trial court reminded the jury that such encounters should not occur,
but if someone approached a juror, the juror should report it to the court deputies.

At the close of trial, during the final jury instructions, the trial court instructed the jury regarding
the elements of the crimes charged. The trial court had not instructed the jury on the elements in the
preliminary jury instructions. Defendant was convicted and sentenced as indicated above.

Defendant appealed, arguing that the trial court should not have admitted evidence of prior bad
acts, specifically defendant’s role in the “Turn-around Boys,” and contending the prosecutor’s interjection
of the gang evidence amounted to prosecutorial misconduct. Defendant also moved for remand with
affidavits from two new witnesses, Devin Hines and Terry Edwards. This Court denied the motion for
remand, and did not specifically address the new affidavits. In its opinion, this Court rejected defendant’s
arguments regarding the admission of his gang involvement and prosecutorial misconduct. Watkins,
unpub op at 11. Defendant applied for leave, which our Supreme Court denied. People v Taylor, 505
Mich 1028 (2020).

In November 2019, while his application in the Supreme Court on direct appeal was still pending,
defendant, appearing in propria persona, moved for relief from judgment, raising 22 arguments.
Defendant argued, in part, that trial counsel should have subpoenaed a witness at his second trial to provide
alibi witness testimony. Additionally, he challenged the trial court’s jurisdiction, argued that the jury had
been intimidated, and maintained his counsel had been ineffective. Defendant also moved for an
evidentiary hearing, and attached three affidavits, including the affidavit from Edwards, and new affidavits
from Williams and Gantz. He did not attach the Hines affidavit.

Edwards was not an eyewitness to either shooting. Instead, he indicated that another man, not
Williams or Gantz, shot defendant in April 2015. In his 2018 affidavit, Edwards indicated that a man
named Jessie, an associate of “Big Mike,” shot and robbed defendant on April 17, 2015. According to
Edwards, defendant believed that Edwards or Burnett had set him up, but Edwards said Burnett and Big
Mike had nothing to do with Jessie’s actions against defendant. Edwards stated he told defendant’s lawyer
that “those guys who testified for the prosecution didn’t shoot [defendant]” and the lawyer said the jury
already was aware.

In his 2019 affidavit, Williams reasserted that defendant was not the driver of the minivan involved
in the shooting. Williams said he was not honest when he identified defendant as the van driver during
the May 2015 shooting. Williams also was not honest when he said Watkins shot him. He added that he
“was under a high dosage of medication,” which caused him “to blame two innocent people for shooting
[him] and killing Paige [Walker].” Williams said he did not see the driver or the shooter.

In his 2019 affidavit, Gantz said that defendant was not the driver of the van during the shooting;
the driver was a light-skinned, heavyset male with long braids. Gantz said he was afraid to say anything
earlier because the men who shot them were still at large. Gantz said he came forward because he did not
wish to see someone locked up for something that person did not do.

After reducing defendant’s 22 issues to 10 main arguments, the trial court ruled, in relevant part,
it had subject-matter jurisdiction because it was a court of general jurisdiction under statute, and because
defendant had been properly bound over by the district court. Moreover, the trial court had personal
jurisdiction over defendant as a Michigan resident who committed crimes. The trial court rejected

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defendant’s arguments regarding juror intimidation because any possible taint did not prejudice
defendant—the court believed that, even without the intimidation, the jury still would have convicted
defendant. Regarding the three affidavits, the trial court ruled that the evidence was not newly discovered
and would not have made a different result probable on retrial, so the affidavits did not entitle defendant
to relief. The trial court decided that appellate counsel was not ineffective because defendant had not
shown prejudice from appellate counsel’s decisions, and defendant was afforded a full appeal. Therefore,
the trial court denied the motion for relief from judgment.

Defendant, appearing in propria persona, applied for leave to appeal in this Court and raised six
issues, including: (1) lack of jurisdiction for noncompliance with MCL 766.15(1) and ineffective
assistance of counsel for failing to challenge jurisdiction, (2) the trial court’s failure to allow an alibi
defense and ineffective assistance of counsel for failing to pursue it, (3) newly discovered evidence
entitling him to a new trial, and (4) ineffective assistance of appellate counsel. This Court denied the
application.3

Defendant appealed to our Supreme Court, in an application identical with the one he filed on
direct appeal. In a handwritten note on the cover sheet of the application, defendant added that he adopted
the application he previously filed in this Court. Defendant did not, however, include those issues in his
statement of questions presented in his Supreme Court application, and made no argument regarding those
issues. Defendant also moved for an evidentiary hearing, in part on the basis of affidavits from Edwards,
Gantz, and Williams. Our Supreme Court denied defendant’s motion for an evidentiary hearing and, as
noted, remanded to this Court as on leave granted.

When our Supreme Court remanded as on leave granted, its order did not contain a limitation or
direction regarding the issues to be addressed. Newly appointed appellate counsel chose not to address in
the appellant’s brief the six issues raised by defendant in his application, and instead raised three other
issues. The prosecution addressed the three issues from counsel, but did not address the issues raised by
defendant in his original application to this Court and then to our Supreme Court.4 Because the issues
defendant raised in his application may be decided without additional briefing, we chose not to order
further briefing by counsel on those issues, but we caution both parties’ counsel in the future to address
all relevant issues raised when briefing a granted application for leave to appeal.

II. LEGAL ANALYSIS

A. RELIEF FROM JUDGMENT FRAMEWORK

This Court reviews a trial court’s decision on a motion for relief from judgment for an abuse of
discretion. People v Spears, 346 Mich App 494, 502; 13 NW3d 20 (2023). An abuse of discretion occurs
when a trial court’s decision falls “outside the range of principled outcomes.” People v Hoskins, 342 Mich
App 194, 200; 993 NW2d 48 (2022) (quotation marks and citation omitted). Factual findings supporting

3
People v Taylor, unpublished order of the Court of Appeals, entered February 28, 2023 (Docket
No. 363131).
4
The prosecution did not file a response to the application in this Court, so the issues raised by defendant
in his application were not addressed at that juncture.

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the court’s decision undergo review for clear error. Spears, 346 Mich App at 502. “Clear error exists
when the reviewing court is left with the definite and firm conviction that a mistake has been made.”
People v Byars, 346 Mich App 554, 563; 13 NW3d 328 (2023) (quotation marks and citation omitted). A
de novo standard of review applies to questions of constitutional law. People v Boykin, 510 Mich 171,
183; 987 NW2d 58 (2022).

Under MCR 6.508(D), defendant has the burden of establishing entitlement to relief after his prior
direct appeal. Regarding issues decided in his prior appeal, he must establish a retroactive change in the
law, new evidence that would make a different result probable on retrial, or a significant possibility of
actual innocence. MCR 6.508(D)(2). Also, he may not allege grounds for relief, other than jurisdictional
defects, that he could have brought in his earlier appeal, unless he demonstrates that “good cause” existed
for failure to raise the issue and that he has suffered “actual prejudice” from the irregularities. MCR
6.508(D)(3)(a) and (b). Alternately, he must show that his conviction should not be allowed to stand
because of an irregularity that was so offensive to the judicial process.5 MCR 6.508(D)(3)(b)(iii).

B. JUROR INTIMIDATION

Defendant argues that the trial court should have further investigated the claims of juror
intimidation or declared a mistrial. We disagree.

A defendant tried by jury has a right to a fair and impartial jury. Duncan v Louisiana, 391 US 145,
153; 88 S Ct 1444; 20 L Ed 2d 491 (1968); People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994).
A jury verdict may not be rooted in extraneous factors or influences. People v Budzyn, 456 Mich 77, 88;
566 NW2d 229 (1997). To establish that a new trial is necessary, defendant must show: (1) “ ‘the jury
was exposed to extraneous influences’ ”; and (2) “ ‘these extraneous influences created a real and
substantial possibility that they could have affected the jury’s verdict.’ ” People v Flores, 346 Mich App
602, 610; 13 NW3d 668 (2023), quoting Budzyn, 456 Mich at 88-89. “Generally, in proving this second
point, the defendant will demonstrate that the extraneous influence is substantially related to a material
aspect of the case and that there is a direct connection between the extrinsic material and the adverse
verdict.” Budzyn, 456 Mich at 89.

A mistrial may be granted only where the requesting party establishes “that the error complained
of is so egregious that the prejudicial effect can be removed in no other way.” People v Beesley, 337 Mich
App 50, 54; 972 NW2d 294 (2021) (quotation marks and citation omitted). A trial court should not declare
a mistrial regarding extraneous influence on a juror without determining that a mistrial is manifestly
necessary. People v Beck, 510 Mich 1, 7-8, 11-16; 987 NW2d 1 (2022). We review for an abuse of
discretion a trial court’s decision regarding a mistrial. Flores, 346 Mich App at 608.

Even assuming exposure to extraneous influences here, defendant has not demonstrated actual
prejudice, i.e., that a real and substantial possibility existed that the extraneous influences could have

5
The brief filed by appointed counsel raises three issues, but does not reference the good cause or actual
prejudice standards, nor does counsel discuss newly discovered evidence or a change in the law. See
People v Kent, 194 Mich App 206, 210; 486 NW2d 110 (1992) (noting that the failure to adequately brief
an allegation of error precludes appellate review). Notwithstanding, we exercise our discretion to review
those three issues and conclude that they are meritless.

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affected the jury’s verdict. Id. at 610. The record reflects that the trial court immediately addressed the
issue, assuring the jury that court security was very good and the jurors had no reason to be concerned.
The trial court admitted that spectators “from one side or the other” sometimes will look at jurors, but the
look could be done innocently or inadvertently, without an intent to intimidate. The trial court encouraged
the jurors not to feel intimidated and, after the jury was dismissed, the court advised defendant and
Watkins to encourage their supporters to stop looking at the jurors in any attempt to intimidate them. We
also observe that, had the jury actually been intimidated, it likely would not have convicted defendant.
Similarly, defendant has not shown that the juror’s brief encounter with defendant’s friend was an
extraneous incident that affected the verdict. The trial court appropriately encouraged the jurors to report
any further such incident to courtroom deputies.

Further, the trial court instructed the jurors that they should consider only the evidence and should
not let sympathy or prejudice influence their decision. Courts presume jurors follow jury instructions,
People v Zitka, 335 Mich App 324, 348; 966 NW2d 786 (2020), and presume jury instructions cure most
errors, People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008).

C. ADMISSION OF EVIDENCE

This argument centers on the testimony from Walker’s mother, who testified for approximately
six minutes on the second day of trial and shared her daughter’s age at the time of her death and a personal
detail about her daughter. We reject defendant’s arguments that the testimony was irrelevant, not
probative, and served no other purpose than to garner sympathy with the jury.

Unpreserved evidentiary issues are reviewed under the plain-error standard. People v Lowrey, 342
Mich App 99, 108; 993 NW2d 62 (2022). To satisfy the plain-error standard, “three requirements must
be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” Id. (quotation marks and citation omitted). In addition, the defendant must
show that the error “intrinsically undermined the fairness, integrity, or public reputation of the
proceedings.” Id. at 109.

Relevant evidence, at the time of trial, was defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” MRE 401; People v Campbell, 236 Mich App 490, 503;
601 NW2d 114 (1999). Evidence is relevant provided the two components of materiality and probative
value are present. People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). Materiality requires
that the proffered evidence be related to “any fact that is of consequence” to the action. Id.

In this case, where defendant was convicted of murdering Walker, facts that are of consequence to
this case include Walker’s presence at the scene at the time of the shooting and her death from a gunshot
wound. It follows that evidence from her mother to identify Walker, including her age, was probative. In
addition, the identification photographs of Walker were admissible to corroborate testimony. See People
v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995).

Even if relevant, evidence is not admissible if “its probative value is substantially outweighed by
the danger of unfair prejudice.” MRE 403. “Evidence is unfairly prejudicial when there exists a danger
that marginally probative evidence will be given undue or preemptive weight by the jury.” People v
Horton, 341 Mich App 397, 404; 989 NW2d 885 (2022) (quotation marks and citation omitted).

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Defendant has not shown how the jury would have given undue weight to the testimony at issue, and the
testimony was not particularly prejudicial in any aspect. Further, it was a very small portion of the overall
trial testimony, and defendant has not shown that the admission of that testimony reasonably could have
affected the outcome of trial.

Defendant argues in the alternative that his trial counsel was ineffective for failing to object to the
testimony regarding Walker. This Court will not substitute its judgment for that of trial counsel regarding
matters of trial strategy, particularly in hindsight. People v Traver (On Remand), 328 Mich App 418, 422-
423; 937 NW2d 398 (2019). Counsel may have had strategic reasons for failing to object, including not
drawing attention to testimony from the victim’s mother. Further, as indicated above, the trial court
properly admitted the testimony at issue. Had counsel objected, the trial court likely would have overruled
it. Counsel’s failure to make a futile objection does not rise to the level of ineffective assistance. People
v Thurmond, 348 Mich App 715, 741; 20 NW3d 311 (2023).

Finally, defendant has not shown that, but for the admission of the evidence, the outcome of the
proceedings would have been different. See Lowrey, 342 Mich App at 108. In the absence of actual
prejudice, he has not demonstrated that this point entitles him to relief from judgment.

D. JURY INSTRUCTIONS

Defendant contends that the trial court committed structural error by neglecting to instruct the jury
on the elements of the charged offenses during preliminary jury instructions or, in the alternative, that
counsel was ineffective for failing to object. This issue fails.

A structural error occurs when the trial court completely fails to instruct a jury regarding the
elements of a crime. People v Duncan, 462 Mich 47, 52-54; 610 NW2d 551 (2000). If the error is
structural, reversal is automatic. People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538
(1994). Otherwise, “an imperfect instruction is not grounds for setting aside a conviction if the instruction
fairly presented the issues to be tried and adequately protected the defendant’s rights.” People v Kowalski,
489 Mich 488, 501-502; 803 NW2d 200 (2011). In determining whether instructional error occurred,
courts consider the instructions as a whole, rather than piecemeal. Id. at 502. Unpreserved non-structural
instructional errors are reviewed for plain error affecting substantial rights. Id. at 505.

A criminal defendant is entitled to have a properly instructed jury consider the evidence. People
v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000). Jury instructions must set forth all elements of
the crime with which a defendant is charged. People v Ogilvie, 341 Mich App 28, 34-35; 989 NW2d 250
(2022). The instructions “must not exclude from jury consideration material issues, defenses or theories
if there is evidence to support them.” Id. (quotation marks and citation omitted).

Defendant complains that the trial court neglected to instruct the jury on any of the elements of
first-degree premeditated murder, or assault with intent to murder, during the preliminary jury instructions.
The court rule governing preliminary jury instructions provides:

After the jury is sworn and before evidence is taken, the court shall orally provide
the jury with pretrial instructions reasonably likely to assist in its consideration of the case.
Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure,
and the law applicable to the case as are reasonably necessary to enable the jury to
understand the proceedings and the evidence. The jury also shall be orally instructed about

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the elements of all civil claims or all charged offenses, as well as the legal presumptions
and burdens of proof. The court shall also provide each juror with a written copy of such
instructions. . . . [MCR 2.513(A) (emphasis added).]

That rule supports the conclusion that a jury not properly informed of the law cannot fulfill its
duty. See People v Potter, 5 Mich 1, 8-9 (1858) (ruling that the court erred in failing to clearly define the
degrees of murder for the jury).

In the preliminary instructions, the trial court told the jury that defendant was charged with first-
degree murder for the killing of Walker, and other individuals were nonfatal victims of the shooting.
Further, the trial court stated that every crime is made up of elements, which the prosecution must prove
beyond a reasonable doubt, and it would tell the jurors about the elements at the end of trial. The trial
court added that it would give the jury “detailed instructions about the rules of law that apply to this case”
after the evidence was presented. Trial counsel did not lodge any objection to the preliminary
instructions.6 In the final instructions, the trial court instructed the jury regarding the elements of the
crimes, including aiding and abetting, first-degree murder, the lesser offense of second-degree murder,
assault with intent to murder, and the lesser crime of assault with intent to do great bodily harm. At the
end of the instructions, the trial court asked if any of the attorneys had objections to the charge as given.
Again, trial counsel voiced no objection.

Accordingly, when viewed as a whole, the jury received instructions regarding the elements of
charged crimes. The question becomes whether defendant is entitled to relief when the elements were not
provided in the preliminary instructions.

In Duncan, 462 Mich 47, the trial court failed to instruct the jury regarding any of the elements of
felony-firearm, and the jury convicted the defendant of two counts of first-degree murder and two counts
of felony-firearm. Duncan concluded that the defendant was deprived of a “basic protection.” Id. at 52.
The jury, without the applicable law, was left to speculate. Id. at 53. The Court found, in part,

that the failure to provide the jury with the definition of any of the elements of the crime
charged is an error of much greater magnitude than presenting less than all elements and
fits within the limited class of cases that are properly characterized as structural and
therefore automatically reversible. [Id. at 54-55.]

Our Supreme Court in People v Traver, 502 Mich 23, 31; 917 NW2d 260 (2018), examined
whether the trial court erred by giving written instructions to the jury with the elements of the charged
offenses, but failing to read those instructions aloud. Defense counsel expressed satisfaction with both
the preliminary and final jury instructions. Id. at 29-30. The Traver Court decided oral instructions were
necessary under MCR 2.512 and MCR 2.513; written instructions would not suffice. Id. at 40. Even so,
the Court ruled that a new trial was unwarranted because defense counsel had approved the jury

6
To preserve a jury instruction issue, a party must object to the instructions, or request a particular jury
instruction. MCL 768.29; People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19
(2000).

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instructions on the record. Id. Given that approval, the defendant waived any objections to the
instructions. Id. at 41.

In light of these two cases, we conclude that the jury was properly instructed on the elements of
the crimes before beginning deliberations. The trial court’s procedure did not amount to a complete failure
to provide the elements of the crimes to the jury, as in Duncan. Rather, the jury was instructed on the
elements of the charged crimes, but in a manner inconsistent with the applicable court rule, as in Traver.
Defendant was not denied a basic protection, and when viewed as a whole, the jury instructions sufficiently
protected defendant’s rights. No structural error occurred.

Nor has defendant shown that counsel was ineffective for failing to object. Courts acknowledge a
presumption that trial counsel’s assistance was adequate and within reasonable professional judgment.
People v Abcumby-Blair, 335 Mich App 210, 237; 966 NW2d 437 (2020). The burden for a defendant to
prove counsel was ineffective is substantial. People v Muniz, 343 Mich App 437, 448; 997 NW2d 325
(2022). To establish ineffective assistance, “a defendant must show that (1) the lawyer’s performance fell
below an objective standard of reasonableness under prevailing professional norms and (2) there is a
reasonable probability that, but for the lawyer’s deficient performance, the result of the proceedings would
have been different.” People v Anderson, 322 Mich App 622, 628; 912 NW2d 607 (2018). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and
citations omitted).

Defendant has not shown that counsel’s failure to object to the preliminary jury instructions
resulted in prejudice. The trial court instructed the jury on the requisite elements during the final jury
instructions and provided the jury with written instructions containing all of the elements. Therefore,
defendant has not demonstrated a “reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” See id. By the same reasoning, defendant has not shown that
his substantial rights were affected, such that he is entitled to relief under the plain-error standard. See
Kowalski, 489 Mich at 505.

E. JURISDICTION

Defendant next argues that the circuit court did not have jurisdiction to preside over his case. This
argument has no merit.

Defendant specifically argues that the file was not certified to the circuit court in accordance with
MCL 766.15(1). That statute provides, in relevant part: “Except as provided in subsection (2) or (3), all
examinations and recognizances taken by a magistrate pursuant to this chapter shall be immediately
certified and returned by the magistrate to the clerk of the court before which the party charged is bound
to appear.” Further, under MCR 6.110(G), “[i]mmediately on concluding the examination, the court must
certify and transmit to the court before which the defendant is bound to appear the case file, any
recognizances received, and a copy of the register of actions.” The circuit court gains jurisdiction over a
criminal defendant when the return is filed. People v Johnson, 427 Mich 98, 106 n 7; 398 NW2d 219
(1986). If a return is not filed, the circuit court does not acquire jurisdiction. People v McGee, 258 Mich
App 683, 696; 672 NW2d 191 (2003). Return entries are not required to appear on the circuit court’s
register of actions. See People v Wilson, 8 Mich App 651, 662; 155 NW2d 210 (1967) (“The original
authorization is not required to be passed on to the circuit court for inclusion in its records, and the fact
that it is not present there is not prejudicial to appellant.”)

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The district court’s and circuit court’s registers of actions reflects that correct procedures were
followed. A signed warrant was obtained on May 22, 2015, and defendant was arraigned by a district
magistrate in May 2015. The district judge presided over the preliminary examination in June 2015, and
defendant was bound over on the charges on June 16, 2015. A return was filed, and the case was
transferred to the circuit court, where it proceeded to trial. Consequently, defendant’s jurisdiction
argument does not withstand scrutiny.7

Defendant references personal jurisdiction only in passing. This Court does not provide argument
on behalf of appellants. People v Bass, 317 Mich App 241, 276; 893 NW2d 140 (2016). Even considering
defendant’s one-sentence argument, personal jurisdiction over a defendant attaches when the district court
receives a sworn complaint and subsequently issues a warrant, People v Mosley, 338 Mich 559, 564; 61
NW2d 785 (1953), both of which occurred in this case. Consequently, the district court had personal
jurisdiction over defendant. Moreover, as noted, after the preliminary examination and bindover, the
circuit court had personal jurisdiction over defendant.

We additionally note that a party may waive any defect in personal jurisdiction by stipulating or
implicitly consenting to the court’s jurisdiction. People v Lown, 488 Mich 242, 268; 794 NW2d 9 (2011).
Defendant has not previously argued a lack of personal jurisdiction over the years of court proceedings,
including two trials. We conclude that defendant implicitly consented to personal jurisdiction as well.

Defendant also argues that appellate counsel was ineffective for failing to raise this issue in his
direct appeal. But counsel is not ineffective by failing to make an argument that is meritless. People v
Isrow, 339 Mich App 522, 532; 984 NW2d 528 (2021). Also, the failure by appellate counsel to “assert
all arguable claims” or counsel’s “decision to winnow out weaker arguments and focus on those more
likely to prevail” does not amount to ineffective assistance. People v Reed, 449 Mich 375, 391; 535 NW2d
496 (1995) (opinion by BOYLE, J.).

F. ALIBI WITNESS

Defendant argues that his alibi witness should have been subpoenaed for his second trial to prove
he was not involved in the May 2015 shooting, trial counsel was ineffective in failing to call her, and
appellate counsel should have raised the issue on appeal. This issue does not succeed.

Whether to call a witness is a matter of trial strategy. People v Solloway, 316 Mich App 174, 189;
891 NW2d 255 (2016). Claims of ineffective assistance on the basis of the failure to call an alibi witness
require the defendant to demonstrate the witness would have provided favorable testimony. People v
Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994).

Defendant has the burden to show the factual basis for the claim. People v Muhammad, 326 Mich
App 40, 63; 931 NW2d 20 (2018). Defendant has not met his burden because he merely cites his trial
counsel’s opening statement in the second trial. Nevertheless, our review of the alibi witness’s testimony
from the first trial reflects that she testified that defendant, her boyfriend, was with her the entire evening

7
To the extent that defendant suggests that the circuit court lacked subject-matter jurisdiction, we disagree
because “circuit courts have subject-matter jurisdiction over felony cases.” People v Washington, 508
Mich 107, 121-122; 972 NW2d 767 (2021).

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of May 14, 2015. However, after the detailed cross-examination by the prosecution regarding the
witness’s lack of memory of other events around that time, trial counsel reasonably could have believed
her testimony would not bolster the defense, particularly in light of the fact that police had arrested Burnett
with a weapon used in the May 2015 shooting.

For this reason, we cannot conclude that trial counsel’s decision not to call the alibi witness fell
below an objective standard of reasonableness. Additionally, in light of the other evidence and the
witness’s apparent credibility concerns, it does not follow that a reasonable probability exists that a
different outcome would have resulted had trial counsel called her to testify at the second trial. As a result,
appellate counsel was not ineffective for choosing not to raise the alibi witness issue. As noted, appellate
counsel may discard weak arguments to concentrate on arguments more likely to succeed. Reed, 449
Mich at 391.

G. NEWLY DISCOVERED EVIDENCE

Defendant argues that he is entitled to a new trial on the basis of newly discovered evidence, the
affidavits from witnesses who state that he was not one of the shooters or the driver of the van. However,
the affidavits from Edwards, Gantz, and Williams do not constitute newly discovered evidence, and we
decline to review defendant’s attempt to expand the record with an additional affidavit from Devin Hines.

Defendant presented the affidavits of Edwards, Gantz, and Williams to the trial court as newly
discovered evidence, and that court ruled, in relevant part:

Upon review of the evidence, defendant meets in part the first prong of [People v]
Cress[, 468 Mich 678; 664 NW2d 174 (2003)], that the evidence is “newly discovered.”
Witnesses Gantz and Williams were available during trial, which means their testimony is
not newly discovered. However, the existence of witness Edwards at the time of trial is
unknown. As such, defendant does meet, in part, Cress—the first element. Defendant also
meets the second prong of the test, in that the evidence is not cumulative. However,
defendant does not meet the third prong of Cress, that the evidence could not have been
discovered at trial with reasonable diligence. As to witness Edwards, defendant was aware
that witness Edwards existed and was in possession of possible exculpatory evidence. As
such, defendant could have made a reasonable inquiry to locate and obtain this evidence at
or before the time of trial. Lastly defendant failed to meet the fourth prong of Cress that
the newly discovered evidence would result in a different result at retrial. There was
significant testimony proffered against the defendant, by multiple witnesses, at trial, as well
as other independent indicia and material evidence that was sufficient to prove the guilt of
the defendant. As such, a different result would not be probable on retrial if this evidence
were presented. Defendant’s argument therefore fails as the evidence does not constitute
newly discovered evidence which warrants relief.

To obtain a new trial on the basis of a claim of newly discovered evidence, “a defendant must
show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly
discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have
discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable
on retrial.” Cress, 468 Mich at 692 (quotation marks and citations omitted).

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Gantz and Williams testified at trial, so their evidence was known to defendant and his counsel.
Evidence is not considered newly discovered where defendant or his counsel knew of the evidence when
trial occurred. People v Rao, 491 Mich 271, 281; 815 NW2d 105 (2012). Their evidence consequently
does not meet the first prong of Cress.

Williams’s affidavit also is cumulative. Williams expressly stated at trial he could not identify the
shooter or the driver, and admitted he lied in identifying defendant as being involved. His 2019 affidavit
merely echoes that testimony. Accordingly, the Williams affidavit does not meet the second Cress factor.
We also note that the jury heard his testimony that defendant was not involved, yet the jury convicted
defendant anyway.

At trial, Gantz denied that he could see the van driver or the passengers; in his 2019 affidavit, he
stated defendant was not the driver of the van. To the extent this could even be considered a recantation,
this Court typically is not swayed by witnesses’ attempts to show they offered perjured testimony at trial
by submitting a recanting affidavit. People v Rogers, 335 Mich App 172, 197; 966 NW2d 181 (2020). In
any event, the slight variation in his testimony, when considered with the other evidence, would not make
a different result probable on retrial. Given the above, the Gantz and Williams affidavits do not provide
defendant grounds for relief.

Regarding the substance of Edwards’s affidavit, defendant indicates he learned of it after trial.
However, Edwards claimed he shared the information with defense counsel. Where counsel was aware
of the evidence, it was not newly discovered. See Rao, 491 Mich at 281. Edwards’s information would
be mostly cumulative, as he echoed Gantz’s and Williams’s testimony that they did not shoot defendant
in April 2015. Gantz and Williams already testified that they had no dispute with defendant, and did not
shoot him. That portion of Edwards’s affidavit does not survive the second Cress factor. Edwards also
identified “Jessie” as the person who had robbed and shot defendant in April 2015, evidence that was not
cumulative. As noted by the trial court, however, defendant was aware that Edwards existed and had
possible exculpatory evidence. Defendant consequently has not demonstrated the third Cress factor,
where he could have made a reasonable inquiry to obtain Edwards’s evidence before trial. Where
Edwards’s affidavit does not meet the Cress factors, the trial court did not abuse its discretion in denying
relief to defendant on that basis.

Finally, defendant cites Hines’s affidavit, but defendant never provided it to the trial court, so
defendant is attempting to expand the record on appeal. This Court may not consider evidence not
presented to the trial court. See MCR 7.210(A)(1), which provides that the original record, to which our
review is limited, consists of “the original documents filed in [the lower] court or a certified copy, the
transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced.” A
party may not expand the lower court record. People v Morrison, 328 Mich App 647, 655; 939 NW2d
728 (2019).

Further, the trial court, not this Court, determines the credibility of an affiant of newly discovered
evidence. See People v Johnson, 502 Mich 541, 566-567; 918 NW2d 676 (2018) (ruling that a trial court
first should determine whether newly discovered evidence is credible when deciding whether it would
make a different result probable on retrial). We decline to consider Hines’s affidavit absent a decision
regarding credibility from the trial court. Defendant is free to file a successive motion for relief from
judgment under MCR 6.502(G) for an initial credibility determination by the trial court.

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Finally, defendant argues that appellate counsel was ineffective in relation to the newly discovered
evidence. As noted, the affidavits of Gantz, Williams, and Edwards do not constitute newly discovered
evidence. Further, the 2019 affidavits of Gantz and Williams were filed after defendant’s direct appeal.
Appellate counsel cannot be considered ineffective by failing to raise arguments regarding those
affidavits. Regarding the Hines affidavit, counsel advised that he did not believe it would be helpful to
defendant’s case. Nevertheless, he submitted it to this Court with defendant’s pro per motion for remand
in defendant’s direct appeal.8 Appellate counsel’s actions cannot be considered to be below an objective
standard of reasonableness.

III. CONCLUSION

There were no errors warranting relief. We affirm.

/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado

8
This Court denied that motion. People v Taylor, unpublished order of the Court of Appeals, entered
August 15, 2019 (Docket No. 341307).

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