People of Michigan v. Osby Joshua Fails
329352
| Mich. Ct. App. | Jan 19, 2017Background
- Police stopped a Volvo; defendant was a rear-seat passenger. Search of the backseat near his seat recovered packages of cocaine and heroin.
- Defendant was convicted by jury of possession with intent to deliver <50 grams of cocaine and <50 grams of heroin; sentenced as a fourth habitual offender.
- At trial, Officer Justin Barnes testified about information he received over police radio during surveillance (vehicle stops, passenger exiting). Defense objected to foundation but not expressly on hearsay or Confrontation Clause grounds.
- Trial court admitted Barnes’s radio-derived testimony as nonhearsay, offered to show its effect on the officer (why he relocated to the vehicle and assisted in the stop).
- Defendant sought a Ginther hearing claiming ineffective assistance of counsel for failure to object to hearsay and Confrontation Clause violations and argued counsel elicited damaging testimony about the driver’s alleged history of “ferrying” drug sellers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of officer’s radio statements | Radio transmissions were admissible to show their effect on Barnes’s conduct | Radio statements were hearsay and testimonial; should be excluded and raise Confrontation Clause concerns | Admissible as nonhearsay to show effect on listener; not testimonial; no Confrontation Clause violation |
| Ineffective assistance for failing to object to radio statements | Failure to object to hearsay/Confrontation grounds was not deficient because objection would be futile | Counsel was ineffective for not objecting to hearsay and Confrontation Clause | No ineffective assistance: objection would have been futile; testimony admissible |
| Prejudice from alleged failure to object | Any error was harmless given other strong evidence of possession and intent | Failure to object prejudiced the defense and affected outcome | No prejudice: overwhelming evidence (behavior, proximity, expert testimony) supported convictions |
| Defense counsel elicited damaging testimony about driver | Counsel’s questioning about driver’s history was a permissible strategy to shift blame | Eliciting that testimony was harmful hearsay and ineffective strategy | Not hearsay and constituted reasonable trial strategy; not ineffective assistance |
Key Cases Cited
- People v. Trakhtenberg, 493 Mich. 38 (Mich. 2012) (Strickland standard for ineffective assistance; prejudice and deficient performance test)
- People v. Lopez, 305 Mich. App. 686 (Mich. Ct. App. 2014) (standard of review for mixed questions of fact and constitutional law)
- People v. Lockett, 295 Mich. App. 165 (Mich. Ct. App. 2012) (presumption of effective assistance; burden on defendant)
- People v. Gaines, 306 Mich. App. 289 (Mich. Ct. App. 2014) (out-of-court statements offered to show effect on listener are nonhearsay)
- People v. Ericksen, 288 Mich. App. 192 (Mich. Ct. App. 2010) (no ineffective assistance for failing to make futile or meritless objections)
- People v. Henry (After Remand), 305 Mich. App. 127 (Mich. Ct. App. 2014) (Confrontation Clause applies to testimonial out-of-court statements)
- People v. Minch, 493 Mich. 87 (Mich. 2012) (constructive possession elements)
- People v. Payne, 285 Mich. App. 181 (Mich. Ct. App. 2009) (trial strategy presumptively reasonable)
- People v. Matuszak, 263 Mich. App. 42 (Mich. Ct. App. 2004) (unsuccessful strategy alone does not show ineffective assistance)
- People v. Eady, 409 Mich. 356 (Mich. 1980) (radio transmissions admissible to show listener’s knowledge and motives)