298 Mich. App. 50 | Mich. Ct. App. | 2012
ON REMAND
This is the third time that defendant James Henry Buie’s appeal is before this Court. A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC) involving a victim under the age of 13, MCL 750.520b(l)(a), three counts of first-degree criminal sexual conduct involving the use of a weapon, MCL 750.520b(l)(e), and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant appealed his convictions, and in People v Buie, 285 Mich App 401, 418-419; 775 NW2d 817 (2009), we remanded to the trial court to determine whether the video-conferencing procedure used to present the testimony of a doctor and a DNA expert was necessary to further a public policy or state interest important enough to outweigh defendant’s confrontation rights. In People v Buie, 485 Mich 1105, 1105-1106
I. BASIC FACTS
The underlying facts of this case are set forth in greater detail in our two prior opinions; however, we will briefly summarize them here. Defendant was convicted of sexually assaulting three females: BS and two minors (ages 13 and 9). BS invited defendant into the apartment where she was babysitting the two minors in hopes of trading sex for cocaine, but defendant produced a firearm during the event and sexually assaulted all three victims. Hours later, a physician examined the minor victims and concluded that they had suffered sexual trauma to their genitals. An employee with the Forensic Biology Unit of the State Police concluded that analysis of the DNA samples linked the evidence taken from the victims to defendant.
A jury convicted defendant as described above, and the trial court sentenced him as a fourth-offense ha
II. ANALYSIS
A. DEFENDANT’S ABSENCE DURING PORTIONS OF VOIR DIRE
Defendant argues that he is entitled to a new trial because his constitutional and statutory rights to be present during his trial were violated when the court held a significant portion of voir dire outside his presence. We disagree.
At trial, defendant did not object to his absence from the courtroom during voir dire. Therefore, the issue is unpreserved. See People v Carines, 460 Mich 750, 761-765; 597 NW2d 130 (1999). We review for plain error “unpreserved claims of constitutional error.” Id. at 764. To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred, (2) the error must be plain, and (3) the error must have affected the defendant’s substantial rights, which generally requires the defendant to show that the error affected the outcome of the lower-court proceedings. Id. at 763. “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id. at 763, citing United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
The Michigan Supreme Court has recognized that a defendant has a right to be present during voir dire. People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984). This Court has recognized that only “a defendant
“It is not seriously questioned that a defendant has the power to waive constitutional rights, provided he does so intelligently, understanding^ and voluntarily.” People v Brown, 46 Mich App 592, 597; 208 NW2d 590, aff'd 393 Mich 174 (1973). “A valid waiver of a defendant’s presence at trial consists of a specific knowledge of the constitutional right and an intentional decision to abandon the protection of the constitutional right.” People v. Woods, 172 Mich App 476, 479; 432 NW2d 736 (1988); see also People v Palmerton, 200 Mich App 302, 303; 503 NW2d 663 (1993). “One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citation omitted).
Defendant argues that he did not waive his right to be present during voir dire when he said, “I don’t want to set [sic] in here myself. I would like to be excused myself [sic].” Rather, defendant contends his statement “represented an unfortunate reaction and expression of frustration after the judge ‘excused’ a potential panelist, and the trial court questioned a panelist who initially said they could not be fair.”
The record establishes that defendant specifically asked to be excused from the courtroom. As such, it is reasonable to conclude that he voluntarily and intentionally wished to be absent from the voir dire in progress. The record is silent, however, as to whether he was ever specifically apprised of his constitutional right to be present. Therefore, a finding that defendant knowingly or understanding^ waived the protection of his constitutional right cannot be made. See Montgomery, 64 Mich App at 103 (noting that this Court cannot presume that the defendant waived his constitutional right on the basis of a silent or sketchy record); People v Thompson, 52 Mich App 262, 267; 217 NW2d 63 (1974) (stating that waiver of the right to be present cannot be presumed from a silent record).
2. GROUNDS FOR REMOVAL FROM COURTROOM
This Court has recognized that it is within the trial court’s discretion to remove a defendant from the courtroom if the defendant’s behavior is disruptive. People v Harris, 80 Mich App 228, 229-230; 263 NW2d 40 (1977). In Harris, the defendant had “repeatedly interrupted the trial with his willful and disorderly behavior, making it impossible to carry on the proceedings in his presence.” Id. at 230. The trial court had warned the defendant that he would be removed from the courtroom if the behavior continued. Id. Once the defendant was removed, the trial court had offered him the opportunity to return if he would behave appropriately. Id. The defendant refused, and this Court ultimately concluded on review that “the trial court acted within the proper scope of discretion in removing defendant from the proceedings.” Id.
3. PREJUDICE ARISING FROM DEFENDANT’S TEMPORARY ABSENCE FROM THE TRIAL
“[T]he test for whether defendant’s absence from a part of his trial requires reversal of his conviction is whether there was any reasonable possibility that defendant was prejudiced by his absence.” People v Armstrong, 212 Mich App 121, 129; 536 NW2d 789 (1995). The Michigan Supreme Court has also held that “it is no longer the law that injury is conclusively presumed from defendant’s every absence during the course of a trial.”
Here, defendant was absent for only a short period
B. RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied his Sixth Amendment right to counsel and effective assistance of
We review defendant’s claims pertaining to the presence and performance of his trial counsel as described above for errors apparent on the record because no Ginther
The Sixth Amendment, as applied to states by the Fourteenth Amendment, guarantees that the accused in a criminal prosecution “shall enjoy the right... to have the Assistance of Counsel for his defence.” US Const, Am VI; People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004). This right to counsel “extends to all ‘critical’ stages of the proceedings where counsel’s absence might harm defendant’s right to a fair trial.” People v Burhans, 166 Mich App 758, 764; 421 NW2d 285 (1988), citing United States v Wade, 388 US 218, 228; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). “The right to counsel attaches and represents a critical stage ‘only at or after the initiation of adversary judicial proceedings against the accused by way of a formal charge, preliminary hearing, indictment, information, or arraignment.’ ” People v Anderson (After Remand), 446 Mich 392, 402; 521 NW2d 538 (1994) (citation omitted). “It is well established that a total or complete deprivation of the right to counsel at a critical stage of a
To prevail on his claim of ineffective assistance of counsel, defendant must meet the two-part test stated by the United States Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). First, defendant must show that his counsel’s performance was so deficient “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 US at 687. To do so, defendant must show that his counsel’s performance “fell below an objective standard of reasonableness” under prevailing professional norms. Id. at 687-688. This Court presumes that counsel rendered adequate assistance. Id. at 690. Second, defendant must show that his counsel’s deficient performance prejudiced his defense. Id. at 687. To do so, “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Defendant maintains that his Sixth Amendment right to counsel was denied because defense counsel did not meet with him before the preliminary exam and did not discuss trial strategy with him. These allegations are properly categorized as claims of ineffective assistance of counsel, but they have no merit as such. See People v Mitchell, 454 Mich 145, 161 n 15; 560 NW2d 600 (1997), vacated on other grounds 536 US 901; 122 S Ct 2354; 153 L Ed 2d 177 (2002) (“Even if defendant and his mother were fully credible and [defense counsel] did not contact the witness and only met with the defendant three times, this is not a ‘denial of counsel’ during a critical stage. Rather, these are allegations of
Defendant also maintains that defense counsel was ineffective because she “never met with [defendant] before the preliminary exam and never reviewed any sort of strategy before trial.” Defendant claims that this inaction was prejudicial because “actually meeting with [defendant] to ‘really sit down and go over our defense tactics’ would have built some sort of relationship that might have resulted in accepting the plea bargain.” However, the record establishes that defendant failed to cooperate with his defense counsel. At the preliminary hearing, defense counsel made the following statement:
Your honor, I have not had an opportunity to speak with [defendant]. The history of this case which dates back to June of this year, my investigator and summer intern went out to speak with [defendant] at the County Jail after we were assigned to this case. At the time [defendant] was nonresponsive so my investigator was unable to speak with him. When we had the first preliminary examination scheduled on the 15th of June, [defendant] refused to come over from the County Jail so the matter was adjourned ....
[Defendant] has been — has a [sic] another case of a similar nature pending in Ionia County and has been there pretty much on and off when he wasn’t in Ann Arbor for the pendency of these proceedings. So I have not really had an opportunity to speak with him, and the only time that somebody from my office had a chance to speak with him he was nonresponsive.
I would not have asked the question, and I want the record to reflect that, although I have given [defendant] a lot of latitude here and that we have not had an opportunity to really sit down and go over our defense tactics and I am respecting his wishes and the questions he wishes to pose, I’m going to let the Court know at this point I’m going to exercise a heck of [sic] more restraint....
This Court has noted that a defendant may not request substitute counsel if the defendant “purposely breakfs] down the attorney-client relationship by refusing to cooperate with his assigned attorney.” People v Meyers (On Remand), 124 Mich App 148, 166-167; 335 NW2d 189 (1983). Similarly, defendant cannot allege that defense counsel was ineffective for failing to meet with him when defendant failed to cooperate with her staff during their visit.
Defendant also alleges that he was denied his right to counsel because defense counsel failed to offer mitigating circumstances or to challenge the sentencing guidelines at the sentencing hearing. This is a claim of ineffective assistance of counsel, rather than a denial-of-counsel claim as asserted by defendant. Mitchell, 454 Mich at 161 n 15. The Michigan Supreme Court has recognized that “[sentencing is a critical stage of a criminal prosecution at which the right to counsel attaches.” People v Wakeford, 418 Mich 95, 121; 341 NW2d 68 (1983). Defendant’s claim that defense counsel was “virtually absent” and, thus, violated his Sixth Amendment right to counsel at critical stages of the proceedings is meritless. The record indicates that defense counsel was present throughout the sentencing hearing. Therefore, defendant was not deprived of his right to counsel. People v Dickerson, 17 Mich App 201, 203-204; 169 NW2d 336 (1969) (holding that the defendant was denied his Sixth Amendment right to counsel because he was not represented by counsel at sentencing).
C. DENIAL OF DEFENDANT’S MOTION FOR SUBSTITUTE COUNSEL
Defendant argues that the trial court erred when it did not either appoint substitute counsel or hold an evidentiary hearing when defendant sought substitute
“The decision regarding substitution of counsel is within the sound discretion of the trial court and will not be upset on appeal absent a showing of an abuse of that discretion.” People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991).
As discussed earlier, the Sixth Amendment guarantees a defendant’s right to counsel. Russell, 471 Mich at 187. However, defendant “is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced.” Mack, 190 Mich App at 14. “A defendant is only entitled to a substitution of appointed counsel when discharge of the first attorney is for ‘good cause’ and does not disrupt the judicial process.” People v O’Brien, 89 Mich App 704, 708; 282 NW2d 190 (1979) (quotation marks and citation omitted). The circumstances that would justify good cause rest on the individual facts in each case. Id.
Our Supreme Court has recognized that, while an allegation of attorney disinterest warrants consideration by a trial court of the defendant’s allegation, a defendant’s conviction will not be set aside, even in the absence of judicial consideration of the defendant’s allegation, if “the record does not show that the lawyer assigned to represent [the defendant] was in fact inattentive to his [or her] responsibilities.” Ginther, 390 Mich at 442. In addition, this Court has recognized that “[a] complete breakdown of the attorney-client relationship or disagreement over whether a particular line of defense should be pursued may justify appointing new counsel.” O’Brien, 89 Mich App at 708. In Meyers, 124 Mich App at 165, the defendant requested substitute trial counsel because the defendant was having
In the present case, the first preliminary examination was scheduled for June 15, 2005, but defendant refused to attend. At the preliminary hearing on September 22, 2005, as described in part 11(B) of this opinion, defendant’s trial counsel noted that she was having difficulty contacting defendant because he was being moved around to various locations. She also noted that “the only time that somebody from my office had a chance to speak with him he was unresponsive.” Further, at the preliminary hearing on October 3, 2005,
In an August 15, 2006, pro se motion, defendant requested substitute counsel because trial counsel had yet to visit him in jail and because there had allegedly been a breakdown in his relationship with the public defender’s office from the beginning. Defendant wrote, “I have been verbally and in writing accused [sic] of this case in their minds.” The trial court did not consider the merits of defendant’s claims in his pro per motion because counsel represented defendant.
The evidence in the record demonstrates that defendant and trial counsel did not have a completely amicable relationship. However, “the record does not show that [defendant’s attorney] was in fact inattentive to [her] responsibilities,” inadequate, or disinterested. Ginther, 390 Mich at 441-442; Meyers, 124 Mich App at 166-167. To the contrary, the evidence demonstrates that well over a year before trial began, defense counsel had gathered necessary materials, was familiar with the case, and was realistically informing defendant of the damaging nature of the DNA evidence and frivolity of his claimed insanity. Defendant complained that trial counsel had not visited him in jail; however, it appears from the record that this was not because of a lack of
D. OTHER-ACTS TESTIMONY
Defendant argues that the testimony of LB, the victim of a 2004 sexual assault by defendant, should not have been admitted at trial because it was inadmissible other-acts evidence under MRE 404(b), was more prejudicial than probative and therefore inadmissible under MRE 403, and inadmissible under MCL 768.27a because that statute violates the Ex Post Facto Clauses of the United States and Michigan Constitutions, US Const, art I, § 10; Const 1963, art 1, § 10. We disagree.
At trial defendant objected to the admission of LB’s testimony, and the prosecution argued that the evidence was admissible under MCL 768.27a. The trial court ruled that the testimony was admissible; therefore, this issue is preserved for appeal. People v Connor, 209 Mich App 419, 422; 531 NW2d 734 (1995) (issues raised before and decided by the trial court are preserved for review.). However, defendant did not object to LB’s testimony on the basis that it violated MRE 404(b) or
A trial court’s decision to admit evidence is reviewed for an abuse of discretion. People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007). However, “[w]hen the decision regarding the admission of evidence involves a preliminary question of law, such as whether a statute or rule of evidence precludes admissibility of the evidence, the issue is reviewed de novo.” Id. (quotation marks and citation omitted). We review defendant’s unpreserved arguments for plain error. Cannes, 460 Mich at 763-765.
MCL 768.27a states that, “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” A listed offense includes first-degree criminal sexual conduct, MCL 750.520b, and second-degree criminal sexual conduct, MCL 750.520c. People v Dobek, 274 Mich App 58, 88 n 16; 732 NW2d 546 (2007) (“The listed offenses [set forth in then MCL 28.722(e)(x)] include the various forms of criminal sexual conduct.”).
[W]hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference....
This does not mean, however, that other-acts evidence admissible under MCL 768.27a may never be excluded under MRE 403 as overly prejudicial. There are several considerations that may lead a court to exclude such evidence. These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony. This list of considerations is meant to be illustrative rather than exhaustive. [Watkins, 491 Mich at 487-488.]
In the present case, defendant was charged with multiple counts of first-degree criminal sexual conduct.
Defendant also claims that the application of MCL 768.27a violates the Ex Post Facto Clauses of the United
Defendant also argues that the evidence was not admissible under MRE 404(b). In Watkins, 491 Mich at 472-481, our Supreme Court concluded that MCL 768.27a permits a prosecutor to introduce evidence of a defendant’s commission of another listed offense against a minor without having to justify its admissibility under MRE 404(b). As previously discussed, the evidence was properly admitted under MCL 768.27a. Therefore, the prosecution did not also have to justify the admission of LB’s testimony under MRE 404(b).
Accordingly, LB’s testimony was properly admitted under MRE 768.27a.
Affirmed.
Defendant was extremely disruptive during the second preliminary-examination hearing when he continually interrupted the trial court. Defendant was asked repeatedly to he quiet. However, defendant refused to comply, and the trial court warned defendant that he would be removed from the courtroom. Despite this warning, defendant continued to be disruptive and refused to be quiet while a witness was testifying. The trial court attempted to carry on despite these interruptions but was unable to do so. Eventually, the trial court excused defendant and had him placed in “lockup” where he would be able to hear the testimony through the speaker system. After defendant was allowed to return to the courtroom for the conclusion of the hearing, the trial court again told the defendant that disruptive behavior would not be tolerated and that he would be excused again if it were to continue.
Defendant was removed from the courtroom on page 32 of the record and he returned to the courtroom at page 69. Thus, in total, defendant was not present for 37 pages of voir dire out of a 103-page transcript. The record does not indicate the length of time of defendant’s absence, but the record suggests that defendant was present for the majority of voir dire.
People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
Although an evidentiary hearing was held pursuant to remand orders from both this Court and the Supreme Court, the testimony pertained to the taking of testimony by way of video conferencing at trial. Defendant’s arguments regarding the effectiveness of his counsel in allowing video testimony have been resolved by the Supreme Court and are not presently before us.
Although not binding, we find persuasive this Court’s reasoning in People v Pointer, unpublished opinion per curiam of the Court of Appeals, issued September 18, 2007 (Docket No. 270327), p 3 (holding that the defendant received effective assistance of counsel because the record indicated that the defendant’s actions had hindered counsel’s attempts to represent him and that counsel had provided adequate representation), and People v Cataldo, unpublished opinion per curiam of the Court of Appeals, issued November 17, 2000 (Docket No. 219216), p 3 (“[T]he record makes clear that any deficiency resulted from defendant’s failure to cooperate with his attorney, not from his attorney’s inaction.”).
Defendant was convicted in 2007. The statute defining listed offenses was amended by 2011 PA 17, effective July 1, 2011. Listed offenses are now set forth in MCL 28.722 (k), (s), (u), and (w).