Issues: Judicial misconduct; People v. Conley; Credibility of witnesses; People v. Dobek; Waiver; People v. Carter; Ineffective assistance of counsel; People v. Toma; People v. Rodgers; Presumption that jurors follow their instructions; People v. Graves; Double jeopardy; People v. Clark; People v. Morton
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Burks
e-Journal Number: 56410
Judge(s): Per Curiam - Meter, Jansen, and Wilder
The court held that defendant was properly convicted of first-degree felony murder and one count of felony-firearm, but his convictions for second-degree murder and a second count of felony-firearm violated double jeopardy. He was convicted for killing the victim and stealing his cell phone. The trial court sentenced him to life imprisonment for the felony murder conviction, 25 to 100 years' imprisonment for the second-degree murder conviction, and 2 years' imprisonment for each of the felony-firearm convictions. On appeal, the court rejected defendant's argument that the trial court committed judicial misconduct by asking his girlfriend if she wanted to change her testimony because the trial court wanted the "truth" in the courtroom, which he claimed unduly influenced the jury. "The record reveals that the challenged statements by the court and the discussions about the testimony and DVD occurred outside the presence of the jury." The court also rejected his argument that a detective improperly commented on the truthfulness of other witnesses, noting that when the detective first stated that the witnesses "weren't being truthful," defense counsel objected and the trial court evidently sustained the objection because it required the prosecutor to rephrase his questioning. "The exchange did not take place to bolster witness credibility but to explain why the investigation proceeded the way it did." The court next rejected his argument that the trial court gave an erroneous response to the jury's question about whether homicide felony murder is the same as first-degree murder, noting that defendant waived the issue and that his trial counsel was not ineffective for failing to object. Finally, the court found that defendant's conviction for second-degree murder and one of his convictions for felony-firearm violated double jeopardy, noting that the prosecutor conceded this point. Affirmed in part and vacated in part.
Issues: Judicial bias; People v. Jackson; People v. Carines; People v. Wade; People v. Cobbs; Whether the trial court should have sua sponte recused himself from presiding over the case; People v. Cocuzza; People v. Pipes; Sentencing; Whether the trial court sentenced defendant pursuant to a blanket policy of the trial court; People v. Underwood; Ineffective assistance of counsel for conceding defendant's guilt to the trier of fact; People v. Horn; People v. Trakhtenberg; Lafler v. Cooper; Failure to raise the issues of judicial bias and improper sentencing; People v. Fike
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Harris
e-Journal Number: 56475
Judge(s): Per Curiam – O’Connell, Wilder, and Meter
Because the record showed the trial court conducted an individualized evaluation of the factors relevant to defendant's sentence, he could not demonstrate the trial court abused its discretion. Further, he was not denied the effective assistance of counsel. Thus, his conviction of breaking and entering a building with intent to commit larceny was affirmed. Defendant argued that the trial court prejudged his guilt and showed an impermissible bias against him in violation of his Fifth and Fourteenth Amendment rights to due process and his Sixth Amendment right to a fair trial, when it remarked on his guilt and stated on the record that it was trying to send him to prison. Taken in context, these remarks did not indicate any bias against him. A complete review of the record indicated that the trial court showed great patience with defendant and answered all of his questions. He claimed that the trial court indicated that he was guilty before it conducted his bench trial. The court held that the trial court did not state that it believed him to be guilty. Rather, it was merely attempting to explain to him why his defense counsel may have recommended that he plead guilty. Defendant also took out of context the trial court's statement as to sending him to prison. The remark was in answer to his question about why it would not sentence him to a year in jail instead of one to five years in prison pursuant to a Cobbs plea. The remark did not show bias because, upon a defendant's request, "a court may state on the record the length of the sentence that, on the basis of the information available to the judge (such as defendant's prior record here), appears to be appropriate for the charged offense." He also argued that the trial court's bias against him was so evident under the circumstances prior to trial, "including the fact that the trial court had already reviewed his criminal record and the tape of his interview with police," such that it should have sua sponte recused itself from presiding over his case. The record did not support his assertion that the trial court's knowledge, gained through conducting the Cobbs plea discussions, biased the trial court against him. Defendant, with extensive knowledge of the criminal justice system, and after the comments made by the trial court he challenged, "opted without objection for a bench trial before that very judge." Consistent with Cocuzza, "to allow defendant to proceed on this allegation of error would contravene the longstanding rule against a party harboring error as an appellate parachute."
Issues: Sentencing; Assignment of the sentencing judge on remand; MCR 8.111(C); People v. Montrose (After Remand); GCR 1963, 926.3 (the predecessor to MCR 8.111(C)); Armco Steel Corp. v. Department of Treasury; The State Court Administrative Office's (SCAO) published "Judicial Assignment Procedures"; Canon 2(A) of the Code of Judicial Conduct; Random selection; Caperton v. Massey Coal Co.; Venue; "Law of the case" doctrine; People v. Whisenant; Failure to cite supporting authority; People v. Martin; Claim that retroactive application of the Michigan Supreme Court's decision in his case violated the defendant's due process rights; Alleged ex post facto violation; People v. Vansickle
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Houthhoofd
e-Journal Number: 56480
Judge(s): Per Curiam – Owens, Borrello, and Gleicher
Concluding that the trial court "circumvented the rules regarding the assignment and reassignment of judges," the court vacated the defendant's sentence for his solicitation to commit murder conviction and remanded for resentencing before a randomly selected judge. The appeal stemmed from three cases that were consolidated and tried together in 2006. The court declined to address defendant's arguments that venue for the trial was improper because the Supreme Court previously decided this issue. It also rejected his argument that the retroactive application of the Supreme Court's decision violated his due process rights, noting the "'general rule is that judicial decisions are given full retroactive effect,'" and that MCL 769.26 and MCL 600.1645 were adopted years before the Supreme Court's decision in defendant's case. Those statutes "specifically addressed general procedural errors and specific venue errors." MCL 600.1645 "specifically states that a judgment cannot be void solely because venue was improper." Thus, it could not be said that the Supreme Court's "interpretation of the statute was unforeseeable, given that the statute was clear and unambiguous and had been the law since it was effective in 1963." Defendant also argued that the assignment of the sentencing judge on remand (a retired judge, who presided over his 2006 trial and originally sentenced him) was improper. The court noted that his resentencing was originally assigned to the retired judge's successor, but she disqualified herself. "MCR 8.111(C)(1) permitted the chief judge to assign the case 'to another judge by a written order stating the reason.' However, the rule expresses a clear preference for random assignment: 'assignment by lot.'" The court held that the record failed to substantiate that the county's "generally 'heavy caseload' required the assignment of a particular judge to handle a particular resentencing. MCR 8.111(C) and the SCAO assignment procedures in disqualification matters make it clear that courts must take care to avoid arranging for hand-selected judges to preside over hand-selected matters." Further, a trial court "may not freely invoke a 'heavy caseload' to avoid the procedure otherwise called for when a judge disqualifies herself." While MCR 8.111(C)(1) permits the chief judge to assign a case "to another judge by a written order stating the reason," the court clearly stated in a footnote in a prior opinion in this case "that 'no authority' permitted a remand 'to the original trial court judge in her retired capacity.'" Defendant was "justified in complaining that the procedure employed worked an end-run around this Court's ruling, and contravened the court rule."
Issues: Sex Offenders Registration Act (SORA)(MCL 28.721 et seq.); Right to a properly instructed jury; People v. Riddle; Waiver; People v. Carter; United States v. Olano; Ineffective assistance of counsel; U.S. Const., amend. VI; Const. 1963, art. 1, § 20; People v. Pickens; People v. Briseno; Right to a unanimous jury verdict and to a corresponding jury instruction; People v. Cooks; Matters of trial strategy; People v. Gonzales; People v. Roberson; Presumption that trial counsel made reasonable professional judgments; People v. Vaughn; Cullen v. Pinholster; People v. Odom; Whether defendant was entitled to a mistrial; People v. Schaw; People v. Haywood; People v. Horn; People v. Budzyn; "Reasonable professional judgment"; English v. Romanowski (6th Cir.); "Other acts" evidence; MRE 404(b)(1); People v. VanderVliet; People v. Sabin (After Remand); Huddleton v. United States; Relevance; MRE 403; "Harmless error"; MCR 2.613; MCL 769.26; People v Lyon; People v Feezel; Trial court's discretion as to whether to admit evidence; People v. Oliphant; People v. Watkins; Remoteness of other acts; People v. Yost; People v. Brown; Relevance of evidence affecting credibility; People v. King; "Common scheme" evidence; People v. Drohan; "Prejudice"; People v. Mills; People v. Crawford; People v. Blackston; Prosecutorial misconduct; People v. Unger (On Remand); People v. Dobek; Improper remarks; Donnelly v. DeChristoforo; People v. Bahoda; Arguing facts not in evidence; People v. Stanaway; People v. Parker; Whether the prosecutor's misconduct violated the defendant's specific constitutional right or infected the trial with unfairness; People v. Blackmon; "Contributory error"; People v. Gonzalez; Comment on a defendant's failure to testify; Defendant's right not to incriminate him- or herself; People v. Fields; People v. Mann; Comments on witness credibility; People v. McGhee; Whether an error affected defendant's substantial rights; People v. Grant
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Jones
e-Journal Number: 56417
Judge(s): Per Curiam - Whitbeck, Hoekstra, and Gleicher
The court held that the trial court did not err by denying the parties' motion for a mistrial after it asked the jury during voir dire whether it would be able to impartially consider any psychological evidence, and did not abuse its discretion in admitting certain witness testimony. It also held that defendant was not denied effective assistance of counsel, and any prosecutorial misconduct did not warrant reversal. He was convicted of failing to comply with the SORA, second offense, first-degree home invasion, and three counts of CSC I. On appeal, the court agreed with defendant that trial counsel should have requested a specific unanimity instruction because the prosecutor presented materially different evidence concerning two separate acts constituting a single offense. However, it found that defendant was not prejudiced, noting that it was "not reasonably probable that, had defense counsel requested a special unanimity instruction, the result of the proceeding would have been different." The court next rejected defendant's argument that one of the trial court's questions to the jury venire during voir dire deprived him of a fair trial by improperly exposing the jury venire to facts not in evidence, finding that "any potential prejudicial effect of the trial court's statement" was cured by the jury instructions, and that "the trial court's decision to deny the parties' joint motion for a mistrial did not fall outside the range of reasonable and principled outcomes in this case." The court further held that he was not denied effective assistance of counsel because "defense counsel's decision to mention [his] possible testimony during his opening statement was a calculated risk" and "defense counsel made a reasonable professional judgment," which did not prejudice defendant's case. It also found that "the trial court's instructions mitigated any prejudicial effect of his failure to testify." The court next rejected defendant's argument that the trial court improperly admitted a witness's (D) testimony because it did not provide evidence of a common plan or scheme. It noted that the trial court did not err in finding that the acts were sufficiently similar to show the existence of defendant's common plan or scheme for sexually assaulting women, or by concluding that D's testimony was admissible other acts evidence. Further, another witness's (C) testimony as to a "common plan or scheme for committing sexual assaults was relevant to show that it was less likely" that the victim consented to the conduct, and even though it was not proper rebuttal testimony, it was "not outcome determinative and constituted harmless error." The court also held that the prejudicial effect of C's and D's testimony did not substantially outweigh the probative value of their testimony. Finally, the court rejected most of defendant's claims of prosecutorial misconduct. It found that, although the trial court erred when it overruled defense counsel's objection to the prosecutor arguing facts not in evidence (witness photos), this error "did not undermine the reliability of the verdict in this case." The court also held that an improper statement by the prosecutor about the veracity of a defense witness did not affect defendant's substantial rights. Affirmed.
Issues: Motion to suppress police statement; Whether defendant waived his Miranda rights; Berghuis v. Thompkins; North Carolina v. Butler; Whether the statement was involuntary due to mental illness; Malloy v. Hogan; Fikes v. Alabama; "Plain error" review; People v. Carines; Evidence of uncharged fires; MRE 403; People v. McGhee; People v. Ackerman; Rule "that any and all conduct of an accused is admissible as evidence where the defense of insanity has been raised"; People v. Lipps; People v. Woody; MRE 104(b); Howard v. Kowalski; Assigning error on appeal to something defense counsel deemed proper at trial; People v. Barclay; Sufficiency of the evidence to support the first-degree home invasion conviction; MCL 750.110a(2); "Dwelling" defined (MCL 750.110a(1)(a)); "Appurtenant" defined; Expert testimony; MRE 702; Surman v. Surman; "Waiver"; People v. Kowalski; Testimony about human behavior; People v. Beckley; Ineffective assistance of counsel; People v. Uphaus (On Remand); Failure to make a futile objection; People v. Fike; Failure to move to suppress evidence obtained from a GPS device; Factual predicate requirement; People v. Hoag; Request for remand; MCR 7.211(C)(1); Effect of a jury's rejection of the chosen defense; People v. Matuszak; Trial strategy; People v. Rockey; A "substantial defense"; In re Ayres; Prosecutorial misconduct; People v. Mesik (On Reconsideration); Berger v. United States; People v. McLaughlin; Whether defendants preserved his claims; People v. Bennett; Alleged civic duty argument; People v. Bahoda; People v. Abraham; People v. Goad; Capitalizing on a jury's fear that a defendant found insane will be set free; People v. Staggs; Denigrating the insanity defense; People v. Wallace; Alleged statements unsupported by the evidence; Sentencing; Scoring of OVs 1 & 2; Whether a butane lighter is an "incendiary device" (MCL 777.31(3)(b) & MCL 777.32(3)(d))
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. McIntyre
e-Journal Number: 56468
Judge(s): Per Curiam – Sawyer, Borrello, and Beckering
Agreeing with the trial court's conclusion that the defendant gave an implied waiver of his Miranda rights, the court held that the trial court did not err in denying his motion to suppress his police statement. Further, the trial court did not err in admitting evidence of the uncharged fires, or expert testimony. The court also rejected defendant's claims of prosecutorial misconduct, ineffective assistance of counsel, and error in the scoring of OVs 1 and 2. However, it agreed that one of his first-degree home invasion convictions was not supported by sufficient evidence. Thus, the court vacated the first-degree home invasion conviction and sentence in one of these consolidated cases, and remanded for the ministerial task of amending his judgment of sentence. In all other respects, it affirmed his convictions and sentences. Defendant was convicted of arson of a building within the curtilage of a dwelling house, arson of a dwelling house, and first-degree home invasion in five consolidated cases. In denying his motion to suppress, the trial court acknowledged that there was no "clear unequivocal waiver" by defendant, but explained that, pursuant to Berghuis, this was unnecessary - he "gave an implied waiver of his rights because defendant was informed of his rights and expressed an understanding of them, as evidenced by him saying 'yes' or by nodding his head, and there was no evidence of any undue influence or coercion." The record supported the trial court's finding that he understood his Miranda rights. Special Agent M read him his rights, and whenever M asked him if he understood, defendant either nodded his head in the affirmative or answered, "Yes." Further, by answering the questions posed by M and Detective S, he "engaged in a course of conduct that indicated a waiver of his rights." He also never claimed that his statement was coerced. Because "defendant was given and understood his Miranda rights, his uncoerced statement established an implied waiver of his Miranda rights." The court also held that the evidence of the uncharged fires was not unfairly prejudicial under MRE 403, concluding that it "was relevant and admissible to aid the jury in evaluating defendant's claim of insanity." However, the garage where he set the fire in lower court no. 11-002154-FH was not an "appurtenant structure" to the condo unit at 2620 R Drive. The photographic evidence presented at trial clearly showed that the garage was not an accessory to 2620. Each of the condos had its own garage and while they were in close proximity to one another they did not fit the dictionary definition of "appurtenant." Also, the garage to 2618 was not a "structure attached" to the condo at 2620. Because the garage where defendant set the fire was not an "appurtenant structure" to victim-W's condo, there was no entry into the unit at 2620 and the related conviction for first-degree home invasion was not supported by sufficient evidence.
Issues: Ineffective assistance of counsel; People v. Swain; Claim that defense counsel's "deficient performance" caused the trial court to make comments damaging to the defendant's case; People v. Conley; People v. Arquette; People v. Conyers; Failure to object to the prosecution's alleged elicitation of impermissible opinion of guilt evidence; People v. Parks; Relevance of evidence relating to a witness's credibility; People v. Mills; Failure to raise futile objections; People v. Eisen; Alleged failure to investigate potentially exculpatory evidence; People v. Russell; Matters of trial strategy; People v. Rockey; A "substantial defense"; People v. Dixon; Conduct of cross-examination; Failure to object to the admission of evidence that was excluded from defendant's first trial; Decision to present certain witnesses; Cumulative error; People v. Unger; Court decisions from other jurisdictions holding that a prior hung-jury mistrial may be considered as evidence that defense counsel's allegedly deficient performance was outcome determinative; Dowdell v. State (IN); Bass v. State (GA)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Strang
e-Journal Number: 56470
Judge(s): Per Curiam – Sawyer, Beckering, and Shapiro
Rejecting the defendant's ineffective assistance of counsel claims, the court affirmed his convictions of two counts of felony murder, one count of arson of a dwelling, and felony-firearm. He argued on appeal that defense counsel's "deficient performance caused the trial court to make comments that irreparably damaged his case." He did not assert that the trial court committed misconduct. Defendant acknowledged that the comments at issue "were warranted by fact and law." The court concluded that "if the trial court's comments did not deprive defendant of a fair trial, defense counsel's alleged prompting of those comments cannot constitute ineffective assistance of counsel." While he also argued that defense counsel was ineffective for failing to object to the prosecution's elicitation of alleged impermissible opinion of guilt evidence, the court held that the challenged testimony "was not an opinion of his guilt or innocence." Since neither witness "offered an impermissible opinion of defendant's guilt, counsel was not ineffective for failing to object." He also claimed that defense counsel was ineffective for failing to call a witness (M) who testified at the first trial (which ended in a hung-jury mistrial). Defendant testified that, at the time of the fire, he was on the same side of town as the victims to meet M in order to purchase drugs. At the first trial, M confirmed this story, which resulted in an alibi jury instruction. At the Ginther hearing, defense counsel explained that M told him that he now rememberedthe day of the murders and stated that defendant did not come to his home that day. This testimony would have contradicted defendant's version of events. Thus, the decision not to call M "was a prudent and reasonable exercise of trial strategy." Defendant also argued, among other things, that defense counsel should have more aggressively pursued the theory that another man (A) committed the crimes. At the first trial, there was testimony that A frequently purchased drugs from victim-B, that he matched the physical description of the suspect given by two witnesses, that police found an empty gas can in the trunk of A's car and three other empty gas cans in his garage, and that A's only alibi was his mother. Asked why he failed to elicit similar testimony in the second trial, defense counsel explained that the defense theme "was the investigation was incomplete and faulty, and that there were other people who could have committed the crime, had reason to commit the crime, and I didn't want to go off on  trying to prove who did it. That's a Perry Mason type of thing, and I don't think it happens in real life." The court held that this was a reasonable trial strategy. Defense counsel could not reasonably be required to investigate every possible potential suspect - "he was required to pursue a theory that defendant was not guilty of the charged crimes, not prove what other person was culpable." Further, he "was not required to try the case in the exact manner as defendant's first attorney."
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