PEOPLE v CAMPBELL
Docket No. 324708
Court of Appeals of Michigan
Submitted July 7, 2016. Decided July 14, 2016.
316 Mich App 279
Docket No. 324708. Submitted July 7, 2016, at Detroit. Decided July 14, 2016, at 9:00 a.m.
Michael D. Campbell was convicted after a jury trial in the Oakland Circuit Court of six counts of indecent exposure,
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 The statute defining a criminal sexual psychopathic person was repealed effective August 1, 1968, and did not prevent Campbell from being convicted as a sexual delinquent.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.
PER CURIAM. Defendant, Michael David Campbell, appeals by right his jury convictions of six counts of indecent exposure as a sexually delinquent person.
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
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 court rules. People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).
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.
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 who it was---would take over representation if Campbell disrupted the trial. The court then asked Campbell if he still wanted to represent himself under this arrangement. Campbell stated that he did and was “ready to go to trial.” Finally, the court inquired if he had consulted with Posner about this decision and, after Campbell confirmed that he had, the court again asked if he still wanted to represent himself. Campbell responded, “[Y]es ma‘am.” Thus, Campbell repeatedly and unequivocally stated that he wanted to represent himself. The trial court also asked Campbell if he was freely and voluntarily asking to represent himself, and he stated, “[A]h---yes, your honor.”
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.”
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 request was harmless. See Carines, 460 Mich at 763.
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.
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
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
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 . . .
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
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
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 judge confused one of the victims with one of the witnesses. But contrary to Campbell‘s argument, the case and the evidence were not particularly complex. That there were six charges of indecent exposure coupled with six enhancements related to Campbell‘s status as a sexually delinquent person did not make the issues difficult to distinguish and separate. There were six charges of indecent exposure because there were six separate instances of indecent exposure. Additionally, the drain on the parties’ resources, the potential for harassment of the witnesses, and the convenience of the witnesses all weighed in favor of not bifurcating the trial. Given these considerations, the trial court selected an outcome within the range of principled outcomes. Rose, 289 Mich App at 524.
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).
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,”
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
RIORDAN, P.J., and SAAD and M. J. KELLY, JJ., concurred.