The 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 18, 2021
Plaintiff-Appellee,
v No. 346506
Wayne Circuit Court
JAMES MATTHEW PIDGEON, LC No. 2017-010383-01-FC
Defendant-Appellant.
Before: LETICA, P.J., and GLEICHER and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316; assault with intent to commit murder, MCL 750.83; carrying a concealed weapon, MCL
750.227; possession of a firearm by a convicted felon (felon-in-possession), MCL 750.224f, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1).
On appeal, defendant raises numerous ineffective assistance of counsel claims. For the reasons
stated in this opinion, we affirm.
I. FACTS AND PROCEDURAL HISTORY
This case arises from a shooting incident that resulted in the death of the victim. In June
2007, defendant was at a bar with his girlfriend at the time, Adelita Sullivan. While at the bar,
Mark White, who was highly intoxicated, approached defendant and Sullivan. An altercation arose
between defendant and White, resulting in the bouncer, Aaron Scott, escorting defendant and
White out of the bar. White left the bar and walked across the street to a gas station. Defendant
and Sullivan left the bar in their vehicle and also went to the gas station. While at the gas station,
White asked the victim for a ride home in the victim’s vehicle, and the victim agreed. At the same
time that White and the victim left the gas station, defendant and Sullivan also left the gas station.
As White and the victim were driving, a vehicle drove up next to the victim’s vehicle and fired a
single shot into the vehicle, striking the victim in the head and killing him instantly. Due to White’s
extreme intoxication on the night of the incident, he gave police various accounts of the incident,
including an initial description of the shooter as a “young black male” driving a white Cadillac.
On the basis of White’s initial description, the police investigated Brian Howard, who possessed
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a vehicle matching the description. However, nothing of evidentiary value was found in Howard’s
vehicle and he was eliminated as a suspect. Because the police could not find any leads based on
White’s inconsistent accounts of the incident, the case went cold for several years.
In February 2015, two police informants came forward with information about the incident.
From the information, Dearborn Heights Police Sergeant Patrick Mueller contacted defendant’s
ex-girlfriend, Tawna Lopez, who told Sergeant Mueller that defendant was in a relationship with
Sullivan at the time of the incident. Sergeant Mueller interviewed Sullivan three times, and each
time Sullivan revealed more details about the incident, including that defendant shot a gun out of
their vehicle on the way home from the bar on the night of the incident, but she did not know if
any of the bullets hit anything. At trial in September 2018, the jury found defendant guilty of the
victim’s death.
On June 3, 2019, defendant filed a motion for a new trial on the basis of ineffective
assistance of counsel. Defendant asserted an evidentiary hearing or new trial was necessary
because trial counsel failed to reasonably investigate, prepare for defendant’s trial, call favorable
witnesses, and explore favorable evidence. In response, the prosecution argued that defendant
failed to show how trial counsel made a serious mistake that prejudiced defendant. The trial court
held a Ginther hearing regarding defendant’s motion on November 19, 2019, and November 22,
2019. The trial court ultimately denied defendant’s motion for a new trial, stating:
So I have reviewed the trial transcript which was very useful because it
brought back my memory of this trial and how the evidence came in, particularly
the evidence of Adelita Sullivan, and also how this case was investigated many
years later and the extraordinary sort of coincidence of finding Sullivan and her
extreme importance as a witness in this case.
But I cannot find any, you know, the defense trial counsel did not pursue
every hair brained idea that [defendant] suggested to him is not ineffective
assistance of counsel. He cross-examined all of the witnesses, he did as much as
he could with them. And actually Scott and White didn’t identify the [d]efendant
as having committed the murder so it was really Adelita Sullivan that was the
primary witness against him in this case and she said he shot the gun out the window
of the car. And other circumstantial evidence seems to have been, seems to have
made the case pretty clear that that was the car that [the victim] and White were in.
Unfortunately[,] [the victim] couldn’t provide any information about this and White
was so profoundly intoxicated that he was virtually useless as a witness but the jury
heard it all and they found the [d]efendant guilty and there was no ineffective
assistance of trial counsel. So[,] the motion for a new trial is denied.
Defendant now appeals.
II. ANALYSIS
On appeal, defendant raises numerous claims of ineffective assistance of counsel. The
determination of whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
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(2002). The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id.
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove
otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). “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.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). Defendant
must overcome the strong presumption that counsel’s actions constituted sound trial strategy under
the circumstances. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Moreover, it is
well established that “[c]ounsel is not ineffective for failing to advance a meritless position or
make a futile motion.” People v Henry (After Remand), 305 Mich App 127, 141; 854 NW2d 114
(2014). Lastly, for all claims of ineffective assistance of counsel, the “defendant has the burden
of establishing the factual predicate for his claim.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999).
A. INVESTIGATIVE SERVICES
Defendant argues trial counsel failed to conduct an adequate investigation. We disagree.
Defendant’s argument in this respect is not wholly clear. Defendant first seems to suggest
that his trial counsel did not conduct an adequate investigation because he “never consulted”
Howard. Yet defendant’s trial counsel explained at the Ginther hearing that he was aware that the
police had investigated Howard and ruled him out as a suspect. Defendant does not explain why
his counsel should have “consulted” an individual that the police had ruled out as a suspect, and
thus fails to establish that this aspect of counsel’s performance was objectively unreasonable.
Next, defendant seems to complain that his trial counsel failed to adequately investigate
the case because he did not hire investigative services to find out “what changed” that led the
police from suspecting Howard to suspecting defendant, especially when the initial description of
the suspect did not match defendant. It is unclear, however, why trial counsel needed to hire
investigative services for this purpose. Defendant’s trial counsel explained at the Ginther hearing
that the initial suspect was identified based on White’s description, that White was severely
intoxicated when he gave the description, and that the police had investigated White’s description
without success. After the case went cold, detectives had a breakthrough after talking with Lopez,
who directed them to Sullivan, who ultimately implicated defendant. It was therefore clear “what
changed” that led to police suspecting defendant, and it is unclear why trial counsel needed to hire
an investigator to piece this together.1
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As part of this argument, defendant also seems to suggest that his trial counsel should have called
the “first detectives on the case” as witnesses “so that the jury could be informed” about the
differences between defendant and the initial description of the suspect in this case. This argument
ignores that defendant’s trial counsel brought this information out during his cross-examination of
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Lastly, defendant argues that his trial counsel needed to investigate the “suggestive and/or
threatening tactics” used by the detectives that led Sullivan to implicate defendant. During trial,
defendant’s counsel asked Sullivan about the multiple occasions that she was questioned by the
police and the potential effect that the police may have had on her recollection. Trial counsel then
argued in his closing that Sullivan could not actually remember what happened on the night of the
incident, that the police fed her additional information each time they met with her to implicate
defendant, that she only said what she thought that the police wanted to hear because she was
afraid that they would charge her with a crime if she did not, and that her testimony only implicated
defendant because she was threatened with possible perjury if her testimony did not match what
she told the police. Thus, trial counsel squarely placed before the jury the possibility that the
detectives used suggestive and/or threatening tactics to convince Sullivan to implicate defendant,
but the jury rejected the argument.
B. COMMUNICATION WITH TRIAL COUNSEL REGARDING DEFENSE
Defendant next argues that trial counsel failed “to effectively communicate with
[defendant] so that he could review discovery material and assist in his defense.” We disagree.
Trial counsel testified at the hearing on defendant’s motion for a new trial that he met with
defendant many times from the beginning of his representation of defendant at the preliminary
examination through trial. Trial counsel stated that he reviewed the discovery materials and
discussed trial strategy with defendant. In fact, defendant admitted at the Ginther hearing that trial
counsel showed him, or gave him the opportunity to view, the witness interview videos. Moreover,
defendant demonstrated his in-depth knowledge about his case, the individuals involved, each
witness’s statement, and the overall sequence of events. Defendant’s knowledge and analysis of
the facts suggests that he was quite involved in his case from its inception, and has not been
deprived of information by trial counsel. Regardless, even if trial counsel failed to adequately
communicate with defendant, defendant has not established or explained how the outcome of his
trial would have been different had he been more thoroughly informed. As a result, defendant was
not denied effective assistance of counsel for trial counsel’s alleged failure to communicate.
C. JURY POOL
Defendant also argues that trial counsel failed to object to the potentially tainted jury pool
after a possible juror indicated during voir dire, and in the presence of other potential jurors, that
if defendant did not testify he had something to hide. Counsel’s decisions relating to the selection
of jurors is generally a matter of trial strategy. People v Johnson, 245 Mich App 243, 259; 631
NW2d 1 (2001). Defendant was not denied effective assistance of counsel by trial counsel’s failure
to object to the jury pool. The potential juror’s statement that she would hold defendant’s choice
to not testify against him was made during jury selection. After the potential juror’s statement,
trial counsel promptly challenged the juror, and the trial court immediately dismissed the potential
juror. As a result, the potential juror had no part in defendant’s trial. The trial court instructed the
White, so it was before the jury without needing to call the “first detectives on the case” as
witnesses.
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empaneled jury that they must be fair, impartial, and not use defendant’s absolute right not to
testify against him in any way, and the empaneled jury stated they would follow the trial court’s
instructions. Because juries are presumed to follow their instructions and trial counsel is not
ineffective for failing to advance a meritless position, defendant was not denied effective
assistance of counsel for trial counsel’s failure to object to the entire jury pool. People v Brunner,
501 Mich 220, 228; 912 NW2d 514 (2018); Henry (After Remand), 305 Mich App at 141.
D. EXCULPATORY EVIDENCE
Defendant argues that trial counsel was ineffective for his failure to present exculpatory
evidence at trial, such as information regarding the white Cadillac, Howard, the initial description
of the suspect by White, Sullivan’s statements in contrast with White’s, and Scott’s statement
contained in the police report from the night of the incident. We disagree.
As previously stated, information about the white Cadillac, Howard, and White’s initial
description of the suspect were all placed before the jury. Defendant also places much emphasis
on White’s statements in contrast to Sullivan’s and on interviews that White gave in 2007 and
2015 in which he claimed that the perpetrator was black. What arguments to make and what
evidence to place before the jury are generally matters of trial strategy. People v Russell, 297 Mich
App 707, 716, 76; 825 NW2d 623 (2012). At the Ginther hearing, defendant’s trial counsel
explained that White admitted that he was highly intoxicated on the night of the shooting and that
he could have been mistaken about certain aspects of his descriptions of the shooting and the
shooter, and further explained that his chosen trial strategy was to discredit Sullivan. That is,
rather than emphasizing statements made by White, whose credibility was clearly in question,
defendant’s trial counsel instead focused on raising questions about Sullivan’s credibility and
encouraged the jury to discount her testimony. Defendant has not overcome the strong
presumption that this was sound trial strategy under the circumstances. Toma, 462 Mich at 302.
Finally, defendant contends further emphasis should have been placed on Scott’s statement
contained in the police report from the night of the incident because it established that defendant
did not follow White to the gas station. Defendant correctly points out that, in the police report,
Scott told police that he watched defendant pull away in a purple economy car with his girlfriend
on “WB Van Born towards Beech Daly.” However, at trial, Scott testified that after defendant was
removed from the bar, he thought Sullivan and defendant left in their vehicle driving away from
the bar, but they did not, they waited for White. Scott further testified that he watched Sullivan
and defendant follow White to the gas station and then pull out of the gas station behind the vehicle
White was in, towards Beech Daly. At the Ginther hearing, when asked why he did not highlight
this discrepancy at trial, defendant’s trial counsel stated:
[Defendant] followed [White] over to a nearby gas station, which was on video,
and the video showed him, as I indicated, following that person and then leaving in
that maroon car.
We conclude that it was not objectively unreasonable for defendant’s trial counsel to not
impeach Scott when video evidence established that Scott’s initial statement to the police was
incorrect. Moreover, even if it was objectively unreasonable for trial counsel to not impeach Scott,
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we cannot conclude that the result of defendant’s trial would have been any different in light of
the video evidence contradicting Scott’s initial statement to the police.
E. FAVORABLE WITNESSES
Next, defendant argues that trial counsel failed to call favorable witnesses that would have
testified about the suggestive comments made by police to influence the witnesses’ recollection of
the incident. The decision whether to call or question witnesses is presumed to be a matter of trial
strategy. Russell, 297 Mich App at 716. Defendant argues that Lopez should have been called as
a witness at trial to testify regarding Sergeant Mueller’s threatening and coercive questioning
during witness interviews. A review of the record establishes, however, that trial counsel was
aware of Lopez but never considered calling her as a witness because:
she was one of the witnesses that had contacted the police initially which implicated
[defendant]. If I had called her, I believe it would have resulted in benefit to . . .
the prosecution’s case.
It is therefore apparent that excluding Lopez as a witness was a matter of trial strategy because
counsel was concerned that Lopez’s testimony would have hurt defendant’s defense. Moreover,
nothing supports defendant’s suggestion that Lopez’s testimony would have corroborated
defendant’s claim that Sergeant Mueller influenced her statements, so defendant has failed to
establish the factual predicate of this claim. Hoag, 460 Mich at 6.
F. GINTHER HEARING DVDS
Lastly, defendant argues that trial counsel failed to admit DVD footage at trial containing
police interviews2 with Sullivan to show how she was allegedly influenced and manipulated by
the police to implicate defendant.
Defendant appears to contend that his trial counsel should have admitted the entire video
recording of Sullivan’s interviews with Sergeant Mueller to show how he “influenced” her
testimony. Defendant does not explain how the entire recording of the interviews could have been
admitted. Defendant cites rules and caselaw for the proposition that impeachment evidence and
prior inconsistent statements are admissible evidence, but to whatever extent parts of the video
may be admitted under those rules, clearly the entire recording is not impeachment evidence or
prior inconsistent statements. We cannot conclude that defendant’s trial counsel was ineffective
for failing to raise a meritless argument. Henry (After Remand), 305 Mich App at 141.
Moreover, even if defendant’s trial counsel could have admitted the entire recording of
Sullivan’s interviews, defendant cannot overcome the presumption that trial counsel’s decision not
to do so was trial strategy. The interviews were hours long, and not all of the interview footage
was favorable to defendant. Indeed, at the Ginther hearing, defense counsel played four minutes
2
Although defendant refers to multiple “interviews” on appeal, the DVD footage that defendant
provided this Court contains only a single interview made up of three separate videos.
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of an interview for the trial court that counsel argued “goes to how the story completely changed
after the fact.” After reviewing the footage, the court opined:
And your idea that playing this whole interview—I mean the part that I just
watched was very damming [sic] to the [d]efendant. You want to play four hours
of video evidence where there is one, two minutes of it is he fired the gun in the air
and the rest of it is very incriminating, there is probably good reason why he
wouldn’t want to play very much of that video because the statement was largely
incriminating[.]
It was not unreasonable for defendant’s trial counsel to highlight Sullivan’s inconsistent
statements, attack her credibility, and put in front of the jury how she may have been influenced
by the detectives through cross-examination instead of by forcing the jury to sit through hours of
interview footage, much of which would have damaged defendant.
Finally, even assuming that it was objectively unreasonable for defendant’s trial counsel to
not admit the entire video of Sullivan’s interviews, defendant cannot establish prejudice. Sullivan
was cross-examined at length about inconsistent statements she made during the interviews, and
defendant’s trial counsel focused throughout trial on attacking Sullivan’s credibility. Moreover,
during trial counsel’s cross-examination of Detective Mueller, trial counsel focused on drawing
out how the detective may have influenced Sullivan to implicate defendant by repeatedly
interviewing her for long periods, suggesting that she could be a suspect, and telling her that the
prosecutor’s office could offer her immunity. Finally, in his closing argument, defendant’s trial
counsel argued that Sullivan was influenced and manipulated by the detective to implicate
defendant. Thus, defendant’s argument that the detective influenced and manipulated Sullivan
was already before the jury, and the jury rejected the argument. We are not convinced that this
result would have been different had the jury sat through hours of Detective Mueller’s interviews
with Sullivan.
Affirmed.
/s/ Anica Letica
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O’Brien
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