Issues: Due process; Waiver; People v. Lueth; Plain error; People v. Carines; Ineffective assistance of counsel for failure to object to the jury instruction; People v. Unger; People v. Sabin (On Second Remand); The trial court's determination that the prosecution exercised due diligence in attempting to locate a witness; People v. Bean; People v. Carnicom; People v. Breeding; Maryland v. Craig; People v. Conner; People v. Dye; Whether defendant was denied his constitutional rights to a jury drawn from a fair cross-section of the community; People v. McKinney; Duren v. Missouri; People v. Hubbard (After Remand); People v. Williams; People v Flowers; Whether the underrepresentation of African-Americans in defendant's jury venire violated his constitutional right to equal protection; Whether the proper procedure for challenging a jury array is to challenge the array in writing before the jury is sworn
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Hinton
e-Journal Number: 50673
Judge(s): Per Curiam – Donofrio, Stephens, and Ronayne Krause
Holding that the defendant waived appellate review of his claim of instructional error, he was not denied his rights to the effective assistance of counsel or to confront the witnesses against him, and his claims involving the underrepresentation of African-Americans in his jury venire lacked merit, the court affirmed his first-degree felony murder, felon in possession, and felony-firearm convictions. Defendant argued that he was denied his constitutional rights to due process and a fair trial when the trial court instructed the jury that it could consider his previous, unnamed conviction when evaluating his testimony. "Because defense counsel expressly approved the trial court's jury instructions, defendant waived appellate review of this issue." He stipulated that he was previously convicted of a felony and was ineligible to possess a firearm. The nature of the felony was not identified. Then, he testified on his own behalf, and the prosecution attempted to question him as to the conviction. Defense counsel objected immediately after the prosecution stated, "[a]nd have you been convicted in the last ten years -" The prosecution did not finish the question, and defendant did not answer it. The trial court held a sidebar conference off the record and concluded the proceeding for the day. The prosecution did not ask any further questions of defendant the following day, and, after both parties rested, the trial court instructed the jury that it had heard evidence that defendant was convicted of a crime in the past and it could consider his past criminal convictions along with all the other evidence in deciding whether to believe his testimony. The prosecution argued that it was unclear from the record whether the instruction was erroneous because MRE 609 allows the admission of evidence involving a prior conviction for impeachment in certain circumstances. The court held that this argument was misplaced because evidence of defendant's prior conviction was not admitted for impeachment purposes. Rather, defense counsel objected to the prosecution's attempt to question defendant as to the previous conviction, and defendant never answered the question. "Thus, the only evidence of defendant's prior conviction was his stipulation that he had previously been convicted of a felony that rendered him ineligible to possess a firearm." The court has explained that, when a defendant stipulates to the commission of a prior felony for purposes of a felon-in-possession charge, the trial court may provide a limiting instruction directing the jury to give separate consideration to each count in the indictment, and may provide an instruction that the jury should consider the prior conviction only as it relates to the felon-in-possession charge. "The trial court's instruction that the jury could consider defendant's previous conviction in evaluating his credibility constituted plain error." However, the court held that reversal was not warranted because defendant failed to establish prejudice. The evidence against him was strong. His four companions in the van with him all testified that he was the only person with a gun and that no struggle or fight occurred before the shooting. Their testimony failed to corroborate his claim that he acted in self-defense. Also, the victim was shot in the back, contradicting defendant's self-defense claim. Even if he had not waived appellate review of this issue, he failed to establish that the instructional error resulted in his conviction despite his innocence.
Issues: Prosecutorial misconduct; Whether the prosecution made improper arguments during its closing argument; Plain error; People v. Fyda; People v. Leshaj; People v. Goodin; People v. Shafier; Doyle v. Ohio; Wainwright v. Greenfield; Unresponsive remark made by a police officer; People v. Holly; Whether police officer T's testimony buttressed by officer M's testimony constituted error requiring reversal; The prosecutor's reference to a "mythical" individual during closing argument; People v. Lawton; People v. Dixon; People v. Borgne; Ineffective assistance of counsel; People v. Ginther; People v. Riley; People v. LeBlanc; People v. Kimble; People v. Solmonson; Declining to raise objections as reasonable trial strategy; People v. Unger; People v. Payne
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Holmes
e-Journal Number: 50675
Judge(s): Per Curiam – Donofrio, Stephens, and Ronayne Krause
The court held that the prosecution did not engage in improper arguments during its closing argument. The case arose from the homicide of C. He called his wife, A, while she was driving home, sounding distraught and told her that "Shannon" stabbed him. (Shannon is defendant's first name). A arrived home and found her husband dead on the floor. Defendant argued that the prosecutor's alleged misconduct during its closing argument and the testimony of two police officers constituted reversible error. The court held that the prosecution's colloquy with officer T individually, or collectively with its closing argument and officer M's testimony, did not improperly refer to defendant's post-arrest, post-Miranda warning silence, under the circumstances. During the direct examination of T, after T testified that he and the other officers had placed defendant under arrest, the prosecution, focusing particularly on an injury to defendant's right arm, asked T about his observations when defendant walked out of his residence. The prosecutor asked if defendant said anything to the officers. T did not respond. The prosecutor then asked if they gave defendant his Miranda rights, and T replied, "Yes, absolutely." The court determined that it was reasonable to conclude, as asserted by the prosecution, that the prosecutor expected from T the response later given by officer N that defendant was not silent, but instead had stated that the injury on his arm was from a dog bite. The prosecution then introduced photographs of the injuries observed by T at that time and asked who took them. T indicated that N had also been at the scene with him and had taken the photographs of defendant's arm injury. While N was photographing the injury on defendant's arm, defendant stated to N that the injury occurred the day before from his dog. Defendant did not object to any of this questioning and in context, there was nothing improper about it. Defendant also argued that the prosecutor committed misconduct in referring to a "mythical" individual named "Shawn" during closing argument. Testifying at trial, defendant for the first time implicated "Shawn" as the killer, claiming that "Shawn" showed up at his residence in bloody clothes the night of the murder and that he had sold the murder weapon to "Shawn" a month before the murder. The court concluded that the prosecutor's closing argument was appropriate. "Defendant raised this issue during direct examination making defendant's failure to tell the police about facts that one would naturally expect to be relayed under the circumstances completely permissible." Defendant's first-degree premeditated murder conviction was affirmed.
Issues: Ineffective assistance of appeal for failure to present an expert witness as to the cause of death and the post-injury survival interval; People v. Grant; People v. LeBlanc; People v. Miller; People v. Effinger; People v. Frazier; People v. Johnson; Preparation, investigation, and presentation of all "substantial defenses"; People v. Kelly; People v. Hyland; The trial court's superior ability to judge the credibility of witnesses who appear before it; People v. Sexton; Matters of trial strategy; People v. Rockey; People v. Rice (On Remand); People v. Stewart (On Remand); Failure to move to suppress testimony under MRE 702; People v. Murray; People v. Brown; Craig v. Oakwood Hosp.; Whether the trial court properly limited cross-examination; Constitutional rights of confrontation and to present a defense; People v. Bulmer; People v. Unger; People v. Yost; Plain error; People v. Carines; People v. Adamski; People v. Hayes; MRE 401; Jury instruction on flight; People v. Coleman
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Martin
e-Journal Number: 50669
Judge(s): Per Curiam – Murray, Talbot, and Servitto
The court held that the defendant did not show that trial counsel's performance was deficient. Even if counsel's failure to present an expert as to the cause of death and the post-injury survival interval could be considered objectively unreasonable, defendant did not show prejudice. Thus, he failed to establish an ineffective assistance of counsel claim and was not entitled to a new trial. Defendant's convictions arose from the death of 22-month old J, who was the son of defendant's intermittent girlfriend, M. J was found dead in defendant's house with second-degree burns and both internal and external bodily injuries. It was the prosecution's theory that defendant inflicted J's fatal injuries because he was the only person who had custody of J during the relevant period. Defendant argued that he was entitled to a new trial because trial counsel's performance was objectively deficient where he failed to present an expert as to the cause of death and the post-injury survival interval. Defendant claimed that trial counsel's asserted reasons for failing to present or even confer with an independent forensic expert were "misguided and implausible." Trial counsel explained that "his decision not to consult with an independent forensic pathologist was a tactical choice, primarily based on admissions that defendant had made to him at the outset." According to trial counsel, defendant reported that he was upset because he loaned M his car, she was not answering his telephone calls, and he later learned that she was actually with another man while he had custody of her son, J. After smoking some marijuana, defendant took his feelings out on J. Defendant told counsel that as J was on the floor, he stomped on him with his foot and beat him with his fists. Counsel was aware that defendant had sole custody of the child for a "considerable period of time." Given the information about defendant's actions and custody of J, "counsel decided to forego consulting with an independent expert because of his concern that the witness might actually support the prosecution's theory that defendant positively caused the fatal injuries." Counsel crafted a strategy of establishing reasonable doubt by showing that M had hit J earlier that day as he sat in his car seat, showing that M might have caused his fatal injuries. Counsel made those arguments at trial. The trial court found trial counsel's testimony as to defendant's admissions and his reasons for proceeding as he did were credible. "Considering the trial court's superior ability to judge the credibility of witnesses who appear before it," the court deferred to the trial court's conclusion that trial counsel's version of events was believable and that defendant made the unfavorable admissions to counsel. There was nothing to contradict trial counsel's testimony. Accepting trial counsel's testimony as true, defendant admitted to gravely harming J, and an independent forensic expert could have very well been detrimental to the defense. It was clear from trial counsel's questions, remarks, and arguments throughout trial that he consistently and vigorously sought to inject reasonable doubt by arguing that M might have caused the child's fatal injuries. To the extent that defendant claimed that trial counsel's approach was misguided and not successful, nothing in the record suggested that trial counsel's strategy was unreasonable or prejudicial under the circumstances. Defendant did not overcome the strong presumption that counsel's decision was based on objectively reasonable trial strategy. Defendant's convictions of first-degree felony murder and first-degree child abuse were affirmed.
Issues: Prosecutorial misconduct; Whether the defendant's right to a fair trial was violated when the prosecutor failed to correct the allegedly false testimony of a bank investigator; People v. Brown; People v. Aceval; Conflict between the testimony and the exhibits; People v. Artman; People v. Anderson; Opinion testimony; People v. Smith; Presumption that the jury followed its instructions; People v. Graves; Questioning during defendant's cross-examination; People v. Farquharson; People v. Feezel; MRE 611(c); MRE 403; People v. Pickens; Harboring error "as an appellate parachute"; People v. Green; A witness's testimony as to what she observed; Harmless error; People v. Lukity; MRE 1002
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Talley
e-Journal Number: 50671
Judge(s): Per Curiam – Murray, Talbot, and Servitto
The court held, inter alia, that since the jury was correctly informed of the true nature of the documentary evidence and the confused testimony was not critical to the prosecution's case, the fact that subsequent testimony confused the evidence did not necessitate reversal and a new trial was not required. Defendant, a bank teller, was charged in two separate cases with making unauthorized withdrawals from the accounts of bank customers. The cases were consolidated for trial. In the first case, a check for $6,200 was deposited into the account of the Es. Two cash withdrawals totaling $5,000 were processed from that account three days later, and defendant handled the withdrawal transactions at the bank's branch where he worked. In the second case, two withdrawals totaling $4,650 were made from an account belonging to R and H. The withdrawals were made three days after inquiries were made on that account through the bank's computers. Those transactions occurred at the bank's branch where defendant had been temporarily assigned to work. "The evidence showed that the registered account holders neither participated in nor authorized the transactions." The prosecutor introduced documentary evidence of the bank's computer records showing the activity for the accounts, as well as video recordings of the unauthorized customer transactions. During its case-in-chief, the prosecutor presented multiple bank records relating to the accounts at issue. Exhibit 7 was a database record of activity relating to the Es' account, and exhibit 14 was a database record of activity relating to the R/H account. Exhibit 14 showed that balance inquiries of the R/H account were made shortly before the unauthorized withdrawals at the branches on days when the defendant was working. The records for that account, however, also showed that inquiries were made by unknown individuals in Ohio and Vermont. During defense counsel's cross-examination of bank investigator P, counsel referred to exhibit 14 when questioning P about the Es' account, even though exhibit 14 actually related to the R/H account. P did not correct the apparent mistake and answered counsel's questions in the context of referring to the Es' account. This apparent confusion continued during the prosecutor's redirect examination of P. Defendant argued that P's testimony as to the Es' account was false as it was based on the records relating to the R/H account, and that the prosecutor's failure to correct the false testimony required reversal. The court held that the error did not involve the use of false evidence, but rather confusion over evidence that had already been accurately presented. The jury was accurately informed that exhibit 7 related to the Es' account and that exhibit 14 related to the R/H account. "The fact that subsequent testimony confused the two exhibits does not alter the fact that the jury was correctly informed of the true nature of the documents." Further, it was not reasonably likely that P erroneously linking the Vermont inquiry to the Es' account instead of the R/H account affected the result of the case, as the prosecution did not rely on that inquiry to support its case. Defendant suggested that the jury likely acquitted him of the charge relating to the Es' account because his attorney argued that someone from Vermont had accessed that account. Thus, the jury may have similarly acquitted him of the charge relating to the R/H account if it was accurately told that the Vermont inquiry related to that account. However, the jury initially was correctly advised that the Vermont inquiry related to the R/H account. "To the extent that there was a conflict between the testimony and the exhibits, the conflict was for the jury to resolve." His conviction of one count of embezzlement by an agent of $1,000 or more, but less than $20,000 was affirmed.
Issues: Petition for a writ of coram nobis; Blanton v. United States; United States v. Johnson; Claim that could have been raised in the petitioner's earlier motion for habeas corpus relief under 28 USC § 2255; Melton v. United States (7th Cir.); "Functional approach" to determine whether a motion counts as a successive application for relief under 28 USC § 2254; Calderon v. Thompson; Ineffective assistance of counsel claim based on alleged bad advice about the immigration consequences of petitioner's guilty plea; Strickland v. Washington; Hill v. Lockhart; Padilla v. Kentucky; "Prejudice"; Failure to present issues to the district court; Barany-Snyder v. Weiner; Motion for relief from judgment; Fed.R.Civ.P. 60(b)(1)
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Pilla v. United States
e-Journal Number: 50836
Judge(s): Kethledge, Boggs, and Collier
Concluding that the petitioner could not show prejudice as to her ineffective assistance of counsel claim, the court affirmed the district court's judgment denying her petition for a writ of coram nobis. Petitioner, a citizen and native of India, was removed from the U.S. after pleading guilty to making false, misleading, or fraudulent statements to the FBI in violation of 18 USC § 1001. She claimed that her trial counsel (B) was ineffective because he gave her bad advice about the immigration consequences of her guilty plea. While she was in prison, petitioner challenged her sentence (but not her plea or conviction) in a motion for habeas corpus relief under § 2255. The district court denied that motion. Petitioner then unsuccessfully sought permission to file a second § 2255 motion. She filed her petition for a writ of coram nobis after she completed her prison sentence. The court noted that coram nobis "is an extraordinary writ that may be used to 'vacate a federal sentence or conviction when a § 2255 motion is unavailable - generally, when the petitioner has served his sentence completely and thus is no longer in custody[.]'" The writ will only be granted if the petitioner shows "a factual error that was unknown at the time of trial and that is 'of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known.'" The court concluded that petitioner's claim in seeking the writ - that B provided ineffective assistance as to her plea - was one that she could have raised in her § 2255 motion. Thus, it could be argued that her petition for a writ of coram nobis should be treated as a second or successive motion for relief under § 2255. The Seventh Circuit held in Melton that "'[a]ny motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶1, is a motion under § 2255, no matter what title the prisoner plasters on the cover.'" The Supreme Court has also adopted "a functional approach in determining whether a motion counts as a successive application for relief" under § 2254. The court agreed with the holding in Melton. "If, in substance, a claim falls within the scope of § 2255(a), it should be treated as such regardless of any 'inventive captioning' by the prisoner." However, part of the substance of a § 2255 motion is that it is filed by a prisoner in custody under sentence of a court established by Act of Congress. Since petitioner was no longer in custody when she filed her petition for a writ of coram nobis, it was not in substance a motion under § 2255. Thus, the court considered its merits. The court noted that petitioner was "faced with overwhelming evidence of her guilt," including a video, a CD of incriminating phone conversations, and FBI interview notes documenting her confession. In light of this evidence, the district court concluded that petitioner "had no realistic chance of being acquitted at trial," and that if she proceeded to trial, she "had no rational defense, would have been convicted and would have faced a longer term of incarceration." The court held that those findings were not clearly erroneous. If petitioner had been convicted after trial, "she would have been just as removable as she was after her guilty plea." No rational defendant in her position would have proceeded to trial. Thus, she did not show that B's advice created even a "reasonable probability" of prejudice and that it probably altered the outcome of the challenged proceeding, as required for a writ of coram nobis.
Issues: Motion to withdraw guilty plea; Waiver of appellate rights; United States v. Calderon; In re Acosta; United States v. Fleming; Whether the claim raised on appeal fell within the scope of the appellate waiver; United States v. Caruthers; United States v. Murdock; Whether the appeal waiver was ambiguous; Whether an appeal of a denial of a motion to withdraw a guilty plea is an attempt to contest a conviction on appeal; United States v. Elliott (10th Cir.); United States v. Garner (Unpub. 4th Cir.); United States v. Daniels (Unpub. 3rd Cir.); United States v. Leon (10th Cir.); United States v. Hernandez (2nd Cir.); United States v. Gray (8th Cir.); United States v. Michlin (9th Cir.); United States v. Morrison (8th Cir.)
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Toth
e-Journal Number: 50837
Judge(s): Suhrheinrich, Gibbons, and McKeague
In an issue of first impression, the court held that an appeal of the denial of a motion to withdraw a guilty plea is an attack on the conviction subject to an appeal waiver provision. Thus, the court dismissed the defendant's appeal of the district court's denial of his motion to withdraw his guilty plea on the basis that he agreed to waive his appeal rights. He was one of 14 defendants charged with conspiring to steal government property, as part of a scheme to defraud the Veterans Administration of disability benefits. He pleaded guilty on the third day of trial and entered into a written plea agreement that included an appellate waiver provision. However, 80 days later he sent a letter to the district court complaining that he was "coerced" into pleading guilty by defense counsel. The district court treated the letter as defendant's pro se motion to withdraw his guilty plea, appointed new counsel, held an evidentiary hearing, and denied the motion. The government argued that defendant's appeal challenging the denial of his motion to withdraw his plea constituted an attack on his conviction and fell squarely within the appeal waiver in his plea agreement. Defendant contended that the appeal waiver was ambiguous because the waiver language said nothing about waiving his right to move to withdraw his guilty plea. He noted that "the waiver provision contained in the plea agreement does not mention guilty plea in any manner whatsoever." The court concluded that this was "a specious argument." The motion to withdraw his plea was inextricably part of the judgment of conviction entered against defendant. The appeal waiver expressly barred direct appeal of a "conviction . . . pursuant to Fed. R. App. P. 4(b)." The court noted that while it had not directly spoken to the issue, several courts of appeals have ruled that "an appeal of a denial of a motion to withdraw a guilty plea is an attempt to 'contest a conviction on appeal,' and thus falls within the plain language of the waiver provision." Like those courts, the court saw no material difference between waiving the right to appeal denial of a motion to withdraw a plea and waiving other rights to appeal. Defendant cited Gray to support his contention that the appeal waiver provision was not sufficiently explicit to bar his appeal. "However, simply because the language of the appeal waiver in Gray was more explicit than that in" defendant's plea agreement did not mean that the waiver here was "not clear enough (brevity does not necessarily create ambiguity)." Neither the Eighth Circuit nor any other court of appeals has required explicit language extending the waiver of appellate rights to include the negotiation, taking, or acceptance of the guilty plea in order to waive appeal of a conviction resulting from the denial of a motion to withdraw a guilty plea.
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