PEOPLE v CAMPBELL
Docket No. 324708
Court of Appeals of Michigan
Submitted July 7, 2016. Decided July 14, 2016.
316 Mich App 279
PEOPLE v CAMPBELL
Docket No. 324708. Submitted July 7, 2016, at Detroit. Decided July 14, 2016, at 9:00 a.m.
Michael D. Campbell was convicted after
The Court of Appeals held:
1. Substantial compliance with the requirements in the applicable court rule,
2. A defendant accused of indecent exposure and being a sexually delinquent person is not entitled to separate trials on the issues; whether separate juries are necessary to determine a defendant‘s culpability for the charged offense and whether the defendant was a sexual delinquent at the time he or she committed the offense should be decided on a case-by-case basis. The decision to impanel separate juries for this purpose is within the trial court‘s discretion, and delivery of a limiting instruction to a single jury on the use of the evidence can adequately protect a defendant‘s rights. In this case, the trial court did not abuse its discretion by refusing to convene two juries and conduct two trials. According to the court, Campbell‘s acts demonstrated a single scheme, all the acts related to his sexual delinquency, and two trials would result in the same evidence being presented twice, a result that would have inconvenienced and invited harassment of the witnesses.
3. Under
4. The statute defining a criminal sexual psychopathic person was repealed effective August 1, 1968, and did not prevent Campbell from being convicted as a sexual delinquent.
Affirmed in part, vacated in part, and case remanded for resentencing.
CRIMINAL LAW --- SENTENCING --- INDECENT EXPOSURE BY A SEXUALLY DELINQUENT PERSON.
A defendant convicted of indecent exposure who was a sexually delinquent person at the time of the crime must be sentenced in accordance with
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.
Michael D. Campbell, in propria persona, and State Appellate Defender (by Erin Van Campen) for defendant.
Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.
I. BASIC FACTS
The prosecution charged Campbell with six counts of indecent exposure that allegedly occurred at various times from April 2013 through August 2013. At Campbell‘s trial, five women testified about six incidents during which Campbell stood outside their apartments, exposed himself, and masturbated. Campbell testified on his own behalf and admitted that he was present during each incident, but he stated that he had an artificial penis and shook it in front of the women as a prank. He denied exposing his penis and he denied masturbating.
The prosecution also presented testimony and evidence concerning several prior incidents involving Campbell. One witness testified that in April 2003 she saw Campbell standing alongside the road as she slowed down to make a turn. He pulled down his pants, exposed his penis, and then pulled his pants up. A police officer also testified about an incident in January 2010 when Campbell was caught peeping into the windows of a private residence. Another witness testified about an incident in October 2011 when he saw Campbell walking through the back of an apartment complex where the witness lived. The witness confronted Campbell and Campbell ran. The prosecution presented evidence that Campbell was convicted of crimes arising from these incidents.
The jury rejected Campbell‘s proffered defense and found him guilty on each of the six counts of indecent exposure. The jury also found that Campbell was a sexually delinquent person at the time he committed the crimes. Campbell now appeals in this Court.
II. WAIVER OF RIGHT TO COUNSEL
A. STANDARDS OF REVIEW
Campbell first argues that the trial court erred when it let him represent himself at trial. More specifically, he argues that the trial court did not adequately inform him about the risks of self-representation, failed to reaffirm at all subsequent proceedings his decision to waive the right to counsel, and never determined that he made a knowing, voluntary, and intelligent waiver of his right to counsel. Because Campbell did not properly raise these issues before the trial court, our review is for plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). This Court reviews de novo whether a defendant waived his Sixth Amendment right to counsel, but reviews for clear error any factual findings underlying the trial court‘s decision. People v Williams, 470 Mich 634, 640-641; 683 NW2d 597 (2004). This Court also reviews de novo whether the trial court properly interpreted and applied the relevant statutes and
B. ANALYSIS
A person accused of a crime and facing the possibility of incarceration has a constitutional right to have the assistance of a lawyer at every critical stage of the criminal process. Williams, 470 Mich at 641. “The United States Constitution does not, however, force a lawyer upon a defendant; a criminal defendant may choose to waive representation and represent himself.” Id.
When confronted with a defendant who wishes to represent himself or herself, the trial court must determine that the three requirements stated in People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), have been met: the court must ensure (1) that “the defendant‘s request is unequivocal,” (2) that “the defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-representation,” and (3) that “the defendant‘s self-representation will not disrupt, unduly inconvenience, and burden the court and the administration of the court‘s business.” People v Willing, 267 Mich App 208, 219; 704 NW2d 472 (2005), citing Anderson, 398 Mich at 367-368. Similarly, “[a trial court] may not permit the defendant to make an initial waiver of the right to be represented by a lawyer” unless the trial court first advises the defendant “of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation[.]”
Trial courts must substantially comply with the requirements stated in Anderson and
Campbell initially retained Leslie Posner as his lawyer. At a hearing held almost three months before trial, Posner informed the trial court that Campbell wanted to represent himself. At a hearing held five days later, the court asked Posner if she was ready to go to trial in three weeks, but Campbell interjected: “No, your honor. I‘m ready to go with her as a stand-by or an assistant but I‘m trying to do this myself.” After the court informed him that Posner would take over representation if he disrupted the trial, Campbell inquired about obtaining different standby counsel. The court asked Campbell if he wanted his previous court-appointed lawyer to take over, but Campbell reasserted that he wanted to defend himself: “No your honor, I wanna represent myself. . . .” The court again warned that Campbell‘s standby lawyer---no matter
Both the prosecutor and the trial court asked Campbell a series of questions to ascertain whether he fully understood the dangers of self-representation. For example, the prosecutor asked Campbell if he understood that he would have to follow the rules of evidence and that the lawyers had to go to law school and pass the bar exam before they could practice; Campbell answered that he understood. The prosecutor also asked Campbell if he realized that he would be held to the same standard as a lawyer and that the trial court could not assist him. Campbell again asserted that he understood and still wished to represent himself. The prosecutor questioned whether Campbell realized that “most would say” that it was “unwise” for an untrained person to represent himself in court, and Campbell stated that he knew and wanted to represent himself in any event.
As for the court, it too questioned Campbell in a way that emphasized how difficult self-representation might be. The court inquired whether Campbell knew how to issue notices and subpoenas, to which Campbell replied that he did not want to call any witnesses that were not already on the witness list. The court asked Campbell if he had any exhibits to introduce, and he indicated that he did not. The court questioned Campbell about the number of peremptory challenges that he was entitled to exercise, and Campbell said he had 15. Campbell affirmed that he would take part in jury selection, and when asked, he was able to explain that a juror‘s preexisting bias was grounds for challenging the juror. Campbell also explained the nature of a leading question and stated that he knew what hearsay meant.
“A waiver is sufficient if the defendant knows what he is doing and his choice is made with eyes open.” Williams, 470 Mich at 642 (quotation marks and citations omitted). Taken together, the questions and Campbell‘s answers demonstrated that he knew the perils of self-representation and was willing to take the risk. Consequently, the trial court substantially complied with the requirements stated in Anderson.
As already described, the court and the prosecutor informed Campbell of the risks of self-representation. The trial court also asked Campbell if he knew the length of the sentence he could receive if he was convicted, and Campbell stated what the guidelines range would be, even though he disagreed with the court‘s previous ruling that the sentencing guidelines would apply. The trial court also told Campbell that he could potentially face life in prison. But the trial court did not specifically list the charges against him. Nonetheless, the court did inquire whether Campbell knew if there were any lesser included offenses, and Campbell recognized that he could be convicted of “simple indecent exposure.” Thus, there is record support that Campbell was fully aware of the charges against him. Accordingly, the failure to specifically restate the charges at the time of his
The prosecutor also asked whether Campbell wanted to consult with a lawyer before making the decision to represent himself, but Campbell declined. And the trial court inquired whether he had consulted with Posner about his decision to represent himself, and Campbell responded that he had already discussed his decision with her. These discussions were sufficient to satisfy the requirements of
On appeal, Campbell also questions whether the trial court could rely on the prosecutor‘s questions in determining whether his waiver was properly made. As Campbell correctly notes, the prosecutor is an adversarial party, but the “prosecutor [also] has the responsibility of a minister of justice, not simply that of an advocate.” People v Jones, 468 Mich 345, 354; 662 NW2d 376 (2003). Moreover, the prosecutor has a vested interest in ensuring that a defendant‘s waiver is knowingly, intelligently, and voluntarily made. Therefore, we conclude that the prosecutor‘s questions were a proper attempt to ensure that Campbell was fully informed before making a decision to waive his right to counsel. Moreover, because the substantial compliance rule is a nonformulaic rule, the trial court could properly consider the prosecutor‘s questions and Campbell‘s responses as part of its “short colloquy” to determine whether Campbell fully understood the import of his waiver. Adkins, 452 Mich at 726-727.
Campbell also correctly contends that the trial court never explicitly found that his waiver request was unequivocal, knowing, and voluntary. He contends that such a finding must be on the record for a waiver to be valid, but the authorities he cites do not support this proposition. See Russell, 471 Mich at 187-188; Anderson, 398 Mich at 367-368. “Substantial compliance requires that the court discuss the substance of both Anderson and
Campbell also contends that he is entitled to a new trial because the trial court failed to reaffirm his waiver at each subsequent proceeding. Under
Advice at Subsequent Proceedings. If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial, or sentencing) need show only that the court advised the defendant of the continuing right to a lawyer‘s assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,
(1) the defendant must reaffirm that a lawyer‘s assistance is not wanted; or
(2) if the defendant requests a lawyer and is financially unable to retain one, the court must appoint one; or (3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one.
Unlike the rules relating to an initial waiver of counsel, the procedure outlined in
Campbell maintains that the trial court failed to reaffirm his waiver at the three hearings subsequent to his initial waiver and also on the second and third days of trial. The first hearing after his initial waiver concerned Posner‘s motion to withdraw as standby counsel. At that hearing, the trial court allowed Posner to withdraw on the ground that the attorney-client relationship had broken down.1 The court also asked a potential replacement standby attorney, Mitchell Ribitwer, to enter an appearance and talk with Campbell. The trial court inquired whether Campbell still wanted to represent himself, and he responded, “[Y]es, your honor.” Although the trial court did not explicitly remind Campbell that he had the continued right to the assistance of counsel, it is evident that Campbell was aware of that right and continued to assert his right to represent himself. Further, there is no indication that the failure to explicitly remind Campbell affected the outcome of the proceedings. Therefore, any error was harmless. See Carines, 460 Mich at 763; see also Lane, 453 Mich at 140-142.
At the next hearing identified by Campbell, Ribitwer appeared with Campbell, and the court reminded Campbell that he had the right to be represented by an attorney at public expense if he could not afford one. The court stated that Ribitwer had informed the court that Campbell wished to continue representing himself but wanted Ribitwer to act as standby counsel. Campbell did not express any disagreement. This was sufficient to satisfy the requirements of
The final pretrial hearing occurred in September 2014. The trial court asked whether Campbell still wanted to represent himself, and Campbell confirmed that he did. Campbell also said he had no objection to Ribitwer acting as his standby counsel. The court explained that “the law requires that I ask you every time” and that if Campbell had “a change of mind . . . you need to let [the court] know.” The trial court did not specifically advise Campbell that he had the continuing right to the assistance of a lawyer, but it was again evident that Campbell understood this given that he had accepted standby counsel and had asserted his right to represent himself. It was not plain error that warranted a new trial. See Carines, 460 Mich at 763.
On the first day of trial, the court informed Campbell that he had the right to the assistance of a lawyer, but Campbell again stated that he did not want a lawyer to represent him. He did agree to let Ribitwer sit beside him in case he had any questions. This was sufficient to satisfy the requirements of
The trial court substantially complied with the requirements applicable to Campbell‘s waiver of the right to have a lawyer represent him. The court also adequately ensured that Campbell continued to waive his right at subsequent proceedings, and any technical deficiencies did not amount to plain error affecting Campbell‘s substantial rights. See Carines, 460 Mich at 763.
III. SEPARATE TRIALS
A. STANDARDS OF REVIEW
Campbell next argues that the trial court erred when it refused to bifurcate the proceedings or hold separate trials because the same jury should not have been permitted to hear both the evidence relating to whether he committed indecent exposure and the evidence relating to whether he was a sexually delinquent person. After Campbell began to represent himself, he raised this issue in an informal oral motion for reconsideration of the trial court‘s earlier decision to hold a single trial. This Court reviews for an abuse of discretion a trial court‘s decision on a motion for reconsideration. People v Perkins, 280 Mich App 244, 248; 760 NW2d 669 (2008). However, to the extent that Campbell challenges the trial court‘s decision on constitutional grounds, his challenge is unpreserved. Consequently, we shall review it for plain error. See Carines, 460 Mich at 763.
B. ANALYSIS
In People v Breidenbach, 489 Mich 1, 4; 798 NW2d 738 (2011), our Supreme Court overruled People v Helzer, 404 Mich 410; 273 NW2d 44 (1978), which had mandated separate juries when a defendant is charged with both a primary sexual offense and the enhancement for sexually delinquent persons. The Breidenbach Court held that “determinations whether separate juries are needed should be made on a case-by-case basis in accordance with the Michigan Court Rules,” and the decision to impanel separate juries is within the discretion of the trial court. Breidenbach, 489 Mich at 4. Under the totality of the circumstances, we conclude that the trial court did not abuse its discretion when it determined that it would be appropriate to hold a single proceeding.
The prosecution filed a notice of intent to introduce Campbell‘s other crimes or wrongs under
Helzer‘s concern regarding the high potential for automatic conviction if the same jury is allowed to hear both charges---and in the process hear evidence of a defendant‘s history of sexual misconduct---is not very compelling when such evidence can be, and often is, admitted anyway under the Michigan Rules of Evidence or the doctrine of chances. Specifically,
MRE 404(b) provides that evidence of other “crimes,wrongs, or acts” may be admissible in order to prove a defendant‘s motive, intent, preparation, scheme, plan, system of doing an act, or absence of mistake or accident, among other purposes. . . . Accordingly, Helzer‘s rule mandating separate juries, however well-intentioned, does not take into account the practical reality that evidence of a defendant‘s history of sexual misbehavior will often come before the jury even when the charges are severed. This reality undermines Helzer‘s policy rationale because, as we explained in People v Williams, [483 Mich 226, 237; 769 NW2d 605 (2009)] “[j]oinder of . . . other crimes cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial.” Limiting instructions are the classic means by which trial courts direct juries to consider certain evidence for its proper purpose only. There is no indication that a proper limiting instruction would be any less appropriate or effective in this type of case. [Breidenbach, 489 Mich at 11-13.]
The trial court‘s initial order stated that one trial would be held and one jury would be impaneled “[f]or the reasons stated by the People.” Namely, only one trial would be held and one jury impaneled because the alleged acts at issue demonstrated a single scheme, the acts related to sexual delinquency under
Campbell also contends that the trial court abused its discretion by failing to sever under the court rules.
Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant‘s guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.
Campbell asserts that the complexity of the case caused prejudice and confusion of the issues. He points out that the trial
Campbell also argues that the trial court‘s decision to hold a single trial violated his constitutional rights to due process and a fair trial. Due process “imports the right to a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence.” Napuche v Liquor Control Comm, 336 Mich 398, 403; 58 NW2d 118 (1953) (quotation marks and citation omitted). Campbell‘s primary argument is that the expert‘s testimony relating to his sexual delinquency was inadmissible with respect to the charges of indecent exposure. He points out that the court did not provide a jury instruction directing the jurors to limit the use of the expert‘s testimony solely to the issue of sexual delinquency. He also points out that
The expert‘s testimony was relevant to the charges of being a sexually delinquent person. Therefore, the issue is whether the court handled the introduction of this evidence effectively within the context of the charges presented to the jury. Giving the jury a limiting instruction (as the court did on the use of other-acts evidence) would have helped ensure that the effect of the testimony was focused on the six charges of being a sexually delinquent person. However, the evidence of Campbell‘s guilt---in relation to both indecent exposure and sexual delinquency---was overwhelming. All the relevant witnesses were able to identify Campbell and describe his offending actions. Further, Campbell‘s defense---that he was merely engaging in vulgar pranks with a “dildo“---was entirely unpersuasive and pointedly rejected by two of the witnesses. On this record, the trial court‘s failure to provide a cautionary instruction on the expert‘s testimony was harmless. Consequently, it did not amount to plain error warranting relief. See Carines, 460 Mich at 763.
Campbell also maintains that Posner‘s stipulation that separate trials were not required amounted to ineffective assistance. Posner merely conceded that separate trials were no longer mandatory after our Supreme Court‘s decision in Breidenbach, which was an accurate statement of the law. And, after discovery of the transcripts and the filing of supplemental briefs, Campbell established that he preserved his claim by asking the trial court to reconsider its decision to hold a single trial. On this record, Campbell has not demonstrated that Posner‘s concession likely affected the outcome of the lower court proceedings. See People v Gioglio (On Remand), 296 Mich App 12, 23; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864 (2012).
Campbell also argues that the trial court erred when it allowed the jury to learn
The trial court did not abuse its discretion when it determined that a single proceeding was proper, and conducting a single proceeding did not deny Campbell his due process right to a fair trial. See Rose, 289 Mich App at 524.
IV. SENTENCING
A. STANDARD OF REVIEW
Campbell argues that the trial court did not have the discretion to determine a minimum and maximum sentence under the sentencing guidelines. Now that the sentencing guidelines are advisory, he maintains, trial courts are required to sentence a person convicted of indecent exposure as a sexually delinquent person to serve one day to life in prison. This Court reviews de novo the proper interpretation of statutes. People v Davis, 468 Mich 77, 79; 658 NW2d 800 (2003).
B. ANALYSIS
“Our primary task in construing a statute is to discern and give effect to the intent of the Legislature,” as indicated by the language used in the statute. People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005). If the statutory language is clear and unambiguous, then no judicial construction is necessary or permitted. Davis, 468 Mich at 79. “[A] statute that is unambiguous on its face can be rendered ambiguous by its interaction with and its relation to other statutes.” People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997) (quotation marks and citations omitted).
The issue here is whether
Campbell now challenges whether the amended version of
We agree that the conflict between the statutory language provided under
The trial court erred when it failed to sentence Campbell consistently with
V. CRIMINAL SEXUAL PSYCHOPATHIC PERSON
Campbell also argues that he qualifies as a criminal sexual psychopathic person under a repealed statute and, for that reason, should not have been convicted as a sexual delinquent. He relies on the decision in People v Griffes, 13 Mich App 299; 164 NW2d 426 (1968). However, the court in that case recognized that the statute had been repealed, effective August 1, 1968. Id. at 302 n 2. Consequently, that classification no longer exists, and the trial court did not plainly err by failing to apply it. See Carines, 460 Mich at 763.
VI. CONCLUSION
There were no errors warranting a new trial. However, the trial court erred when it sentenced Campbell under the sentencing guidelines rather than using the mandatory sentence provided under
Affirmed in part, vacated in part, and remanded for resentencing. We do not retain jurisdiction.
RIORDAN, P.J., and SAAD and M. J. KELLY, JJ., concurred.