People of Michigan v. Terry Donald Devowe
332768
| Mich. Ct. App. | Aug 22, 2017Background
- Defendant Terry Devowe was on parole and required to wear a court-ordered electronic monitoring (tether) device; he was tried and convicted by a jury of tampering with an electronic monitoring device (MCL 771.3f) and sentenced as a fourth-offense habitual offender.
- Parties stipulated that defendant was on parole and required to wear the device; dispute concerned whether he knowingly removed the device.
- MDOC electronic-monitoring data showed the device was "physically at rest" at defendant’s Edmore residence from 11:51 p.m. Jan 16 to 7:40 a.m. Jan 18, a ~31-hour period during which defendant admitted being in Grand Rapids.
- MDOC and 3M witnesses explained the device’s motion sensor and that "physically at rest" indicates the unit was nonmoving and typically off a person; testimony indicated no device alerts or low-battery messages during the period.
- Parole agents observed the strap on defendant’s ankle was loose; one agent cut the strap and found a wet, oily/jelly-like substance in the clips, which agents testified was not normal and could have served as a lubricant to remove the tether.
- The jury convicted; defendant appealed arguing insufficient evidence, Confrontation Clause violation from references to a 3M inspection, ineffective assistance for not objecting, and requested a Ginther hearing; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Devowe) | Held |
|---|---|---|---|
| Sufficiency of the evidence to prove removal of device | Evidence (GPS/motion data, loose strap, oily substance, defendant’s prohibited trip) permits inference he removed and reattached the tether | No direct proof defendant removed the device; data could reflect malfunction; case was circumstantial | Affirmed — circumstantial evidence and reasonable inferences suffice; jury could find guilt beyond a reasonable doubt |
| Confrontation Clause re: 3M report/communication | Testimony that 3M found no problems was non-testimonial or cumulative; introduced through a live witness (Reuschel) | Admission of an out-of-court 3M report/statement violated Sixth Amendment right to confront declarant | Unpreserved; no plain error: no record showing such a report was admitted and Reuschel’s testimony independently showed device functioned properly |
| Ineffective assistance for failure to object to 3M evidence | Counsel’s lack of objection deprived defendant of confrontation and was deficient | Counsel reasonably declined to object (trial strategy) and no reasonable probability of different outcome | Unpreserved; on record review counsel’s conduct not objectively unreasonable and no prejudice shown |
| Request for remand for Ginther hearing | N/A (People oppose remand) | Requests evidentiary hearing to develop record on alleged 3M report and counsel performance | Denied — appellate record adequate; defendant failed to show need for further factual development |
Key Cases Cited
- People v. Wolfe, 440 Mich. 508 (defines sufficiency review and juror inferences)
- People v. Henry, 305 Mich. App. 127 (de novo review of sufficiency and confrontation issues)
- People v. Meshell, 265 Mich. App. 616 (requiring drawing reasonable inferences for jury verdict)
- People v. Unger, 278 Mich. App. 210 (deference to trial strategy and credibility determinations)
- People v. Kanaan, 278 Mich. App. 594 (minimal circumstantial evidence can prove intent/knowledge)
- People v. Nowack, 462 Mich. 392 (prosecution need not disprove every theory consistent with innocence)
- Carines v. People, 460 Mich. 750 (plain-error standard on unpreserved constitutional claims)
- Crawford v. Washington, 541 U.S. 36 (testimonial statements and Confrontation Clause rule)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard)
- People v. Grant, 470 Mich. 477 (prejudice inquiry and reasonable probability standard)