People of Michigan v. Robert Michael Avendt
332538
| Mich. Ct. App. | Oct 31, 2017Background
- Defendant Robert Michael Avendt lived with the victim (CK) and her mother; CK testified assaults began at age 7 and continued until age 14, including vaginal, anal, digital penetration, and fellatio.
- CK disclosed the abuse after several years; defendant was charged with three counts of first-degree criminal sexual conduct (victim under 13).
- Prosecution moved to admit other-acts evidence under MCL 768.27a; a certified copy of defendant’s 2002 first-degree CSC conviction involving a different minor (LH) was admitted at trial.
- Defendant was convicted by jury and, as a fourth habitual offender, sentenced to life imprisonment without parole.
- On appeal defendant challenged (1) admission of other-acts evidence and the certified conviction document, (2) ineffective assistance of trial counsel, and (3) multiple additional claims in a pro se Standard 4 brief (jury composition, search, Miranda, arraignment, prosecutorial misconduct, bail, judicial bias, physical evidence).
- The Court of Appeals affirmed, rejecting all challenges as either without merit, forfeited, or not meeting the plain-error standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of other-acts evidence under MCL 768.27a | Other-acts evidence of similar listed offenses against minors is admissible and relevant; trial court applied MRE 403 balancing | Admission was unfairly prejudicial and trial court failed to properly apply MRE 403 | Court held MCL 768.27a permits such evidence; trial court considered Watkins factors and did not abuse discretion in admitting evidence |
| Admission of certified conviction document (prior CSC conviction) | Documentary proof of prior conviction was probative to bolster victim credibility and permissible | Use of certificate was unfairly prejudicial because defendant could not cross-examine a live witness about details; trial court orally had suggested conviction evidence would be excluded | Court held admitting the certified conviction was not unfairly prejudicial; written order controlled and allowed the evidence; jury instructions mitigate risk |
| Ineffective assistance of counsel (objecting, cross-exam strategy, not calling witnesses, defendant not testifying) | N/A (prosecution defended adequacy) | Counsel failed to object to admissibility, elicited harmful testimony about jail time, failed to investigate/call witnesses, prevented defendant from testifying | Court applied Strickland standard; found counsel’s acts were reasonable trial strategy or meritless to raise; defendant failed to show prejudice |
| Jury fair-cross-section and other Standard 4 claims (jury composition, search, Miranda, arraignment, prosecutorial misconduct, bail, judicial bias, physical evidence) | N/A (multiple discrete claims) | Variety: jury was biased/excluded groups; search unlawful; Miranda not read; judge biased; evidence irrelevant/prejudicial, etc. | Most claims were forfeited or unpreserved and reviewed for plain error; court found no plain error, no prejudice, or claims were moot/unsupported; physical evidence and search admissible/consensual / |
Key Cases Cited
- People v. Watkins, 491 Mich. 450 (Mich. 2012) (interpreting MCL 768.27a and directing use of MRE 403 balancing with specified factors)
- People v. Duenaz, 306 Mich. App. 85 (Mich. Ct. App. 2014) (admission of certified conviction not unfairly prejudicial in child-sexual-assault context)
- People v. Brown, 294 Mich. App. 377 (Mich. Ct. App. 2011) (MRE 403 balancing under MCL 768.27a; remoteness affects weight not admissibility)
- People v. Heft, 299 Mich. App. 69 (Mich. Ct. App. 2012) (standard for reviewing ineffective-assistance claims)
- People v. Erickson, 288 Mich. App. 192 (Mich. Ct. App. 2010) (declining to fault counsel for failing to press meritless objections)
- People v. Petri, 279 Mich. App. 407 (Mich. Ct. App. 2008) (failed strategy does not equal deficient performance)
- People v. Unger, 278 Mich. App. 210 (Mich. Ct. App. 2008) (jury-selection claims and cumulative-error principles)
- People v. Jackson, 313 Mich. App. 409 (Mich. Ct. App. 2015) (preservation and plain-error review for jury-selection and judicial-bias claims)