Ineffective assistance of counsel; Right to counsel; People v Tanner; Waiver; People v McElhaney; Effect of a polygraph agreement; People v Strieter; Notice of intent to offer alibi testimony; MCL 768.20; MCL 768.21(1); People v Travis; Hearsay; Unavailable declarant exception; MRE 804(b)(3); Principle that an accomplice’s statement admitted under MRE 804(b)(3) does not violate a defendant’s right of confrontation if it is a nontestimonial statement; People v Taylor

The court held that defendant was not denied the effective assistance of counsel, that the trial court did not err by excluding proposed alibi testimony, and that admission of testimony about his codefendant’s (L) statements did not violate his right of confrontation. He was convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, CCW and felony-firearm. On appeal, the court rejected his argument that defense counsel was ineffective for failing to establish the terms of the polygraph agreement, which caused the trial court to deny his motion to suppress incriminating statements he made in the post-polygraph interview. “[R]egardless of the terms of the polygraph agreement, the record reflects that defendant was fully aware that counsel would not be present during questioning, defendant was advised of his rights and understood that he could request counsel or contact his attorney at any time during questioning but never did so, and that counsel had instructed defendant not to answer any questions after the polygraph examination but defendant disregarded counsel’s instructions and knowingly and voluntarily waived his rights and proceeded to respond to further questioning.” Under the circumstances, he did not show that “defense counsel’s failure to obtain a written agreement or provide sworn testimony of the agreement’s alleged terms affected the outcome of the proceedings.” The court also rejected his claim that the trial court erred by excluding proposed alibi testimony for failure to timely provide notice of the proposed testimony, finding he failed to show it was more probable than not the exclusion of the proposed testimony affected the outcome. “Therefore, any error was harmless.” Finally, even though L identified him as the shooter, “he directly inculpated himself in the planning and execution of the armed robbery. Further, [L’s] admissions that he advised defendant to destroy evidence and his implicit warning that [witness-W] should not snitch reflected his conscious belief that he understood that his admissions exposed him to criminal liability. [L’s] statements were against his penal interests and admissible under MRE 804(b)(3). Moreover, because [L] inculpated defendant, his accomplice, and himself in the context of a narrative of events to [W] at [L’s] initiative without any prompting or inquiry, [L’s] whole statement, including the portions that inculpated defendant were admissible as substantive evidence at trial under MRE 804(b)(3).” Affirmed.