*1 v Dixon PEOPLE v DIXON August 11, 2004, May Decided at Detroit. 246739. Submitted Docket No. sought. 24, 2004, appeal 9:05 A.M. Leave to at by jury in the Oakland Circuit L. a Darrell Dixon was convicted (esc), first-degree of criminal sexual of counts Court two court, invasion, first-degree The and felonious assault. home J., twenty-five Andrews, N. the defendant Steven sentenced twenty conviction, fifty years’ imprisonment ten to for each CSC conviction, imprisonment and two to years’ for the home invasion The years’ imprisonment his assault conviction. felonious four appealed. defendant Appeals The held: Court of presumed. To establish of counsel is Effective assistance counsel, prove the defendant must ineffective assistance of his denied him Sixth defense counsel’s deficient errors, that, right and but for counsel’s to counsel Amendment proceedings would have been different. the outcome of the solely to a new trial basis The defendant is not entitled only counsel was ineffective because she of his claim that defense immediately before the examination met with him again The defendant failed meet with him until the trial. and and him before the examination concedes that counsel met with transcript was aware of the examination reveals that was from victim of the facts and elicited credibility. Moreover, designed her to undermine present error at trial that defense counsel’s has failed to preparation of before trial. resulted from a lack foundation at trial for the failure to opera- a 911 victim’s recorded conversation with admission of the likely outcome determina- in this close contest was tor significant waiting a amount of tive because the victim admitted calling, demeanor her calm time after the assault assault, speaking operator to the 911 belied claim while Therefore, emergency. the defendant facts she lied about the Furthermore, defense a new trial on this basis. is entitled to to file notice intent also ineffective counsel was consensual, sexual con- recent introduce evidence the victim’s Michigan required by rape duct with the defendant as shield law, 750.520j, clearly because in this the trial court prohibited of this evidence on the introduction basis of counsel’s highly probative failure to file the notice and that evidence was very likely Consequently, defen- outcome determinative. *2 dant is a new on entitled to trial this basis. Cumulatively, defense counsel’s failure to meet with the defen- dant between the examination and the the lay proper failure the to foundation for introduction of the 911 by recording, provide required and the failure to the notice 750.520j effectively deprived the defendant of his Sixth Amend- right to ment counsel. Reversed and remanded for a new trial. J., concurring, agreed opinion with the lead and Bandstra, disagreed part J., opinion by with that the of that Schuette, dissented and from the reversal remand of the for convictions first-degree home invasion and and felonious assault retrial on charges. required those The errors that the the reversal of CSC required convictions infected the entire trial and reversal the
home and invasion felonious assault convictions as well. RJ., concurring part dissenting part, stated the that convictions for home invasion and felonious assault should be affirmed. The defendant is entitled to a new trial for his solely convictions of CSC the basis defense counsel was proper required to ineffective for file notice the to introduce alleged evidence of the victim’s recent consensual sexual conduct Although jury the defendant. was aware made that the alleged prior relationship, defendant and the victim had a under case, jury speculate the circumstances of this was to left over relationship Rather, jury whether that sexual. was should have specific made been aware of acts of recent alleged between the defendant and the victim. The defendant’s other claims of ineffective assistance of performance counsel are without merit. Defense counsel’s met prevailing professional norms where she met with the defendant immediately preliminary examination, she knew rel- questions designed evant facts and asked were to alleged undermine the victim’s and motivation. De- objective fense counsel’s did fall below an proper standard of reasonableness failed when she tape. Attempting foundation admission of the 911 to use the tape victim authenticate under was court, counsel, MRE 901. The trial not defense committed error using it when barred defense counsel from this method of authentication. Dixon Cooper, J. General, Casey, L. Attorney Thomas Cox, Michael A. Attor- Prosecuting General, Gorcyca, David G. Solicitor Prosecuting Kabodian, A. Assistant and Janice ney, Attorney, people. for the Lanctot, (by J. Sta-
Stablein, PLLC Paul Flood & blein), for the defendant. EJ., JJ. and BANDSTRA
Before: COOPER, SCHUETTE, appeals Lashion Dixon Darrell J. Defendant COOPER, counts trial convictions two right jury his as of (CSC),1 first-degree sexual conduct first-degree criminal Defendant was invasion,2 and felonious assault.3 home years’ twenty-five fifty imprisonment sentenced conviction, twenty years’ imprison- ten to for each CSC conviction, and home invasion first-degree ment for his his as- felonious imprisonment to four years’ two *3 further and remand for We reverse sault conviction. opinion. with this consistent proceedings
I. FACTS forc- arose from convictions Defendant’s testified complainant The ex-girlfriend. of his rape ible her 29,2002, apartment, defendant entered that on June kicking her door. gloves, by wearing a mask ski friend, and her complainant Defendant threatened coerced After defendant Mason, with a machete. Tyrone sexually twice as- leaving, defendant Mason into Mr. two-year-old son her complainant with saulted the present.
1 MCL 750.520b.
2 750.110a(2). 3 MCL 750.82. App
396 263 Cooper, J. II. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant raises claims of several ineffective assis- tance Specifically, of counsel. defendant that alleges defense counsel was for failing ineffective to meet with him to to prior present file notice of intent to to pursuant law, the Michigan rape shield to foundation for the complain- admission call, present ant’s to the defense of consent to the CSC charges, object and to at defendant’s sentencing hearing (OV) scoring offense variable 10. Absent a Ginther4 hearing, our review is limited to the existing record.5
Effective is presumed, assistance of counsel and defen- dant a heavy prove bears burden otherwise.6 To establish ineffective counsel, assistance of prove must counsel’s deficient denied him the Sixth right Amendment that, counsel and errors, but for counsel’s the proceedings would have resulted differently.7 Defendant must overcome the strong presumption counsel’s performance was strategy.8 sound trial
Defendant
first
that defense counsel’s failure
to meet with him until immediately before
prelimi
nary examination and
complete
failure meet with
him between the preliminary examination and trial
“complete
constituted a
denial of counsel” at a “critical
stage” of the
proceeding,
that he is entitled
ato new
any
trial without
showing of substantial prejudice.9
(1973).
People Ginther,
436;
v
390 Mich
Although the substance complainant’s hearing contends 2003). (CA 6, Mason, F3d Mitchell Mitchell, (CA 6, 1989), 192, 197 cited in Scroggy, 882 F2d Dick v See claim as (rejecting ineffective assistance supra the defendant’s at 744 thirty forty-five actually in a the defendant interviewed meeting). minute *5 App 398 263 Mich 393 Opinion by Cooper, J. necessary
calm voice the call to undermine during was agree. any physical her credibility. Without evidence We this case amounted to a De- close contest. fense counsel’s failure to have admitted evidence criti- cal to the credibility complainant the issue of was likely Therefore, outcome determinative.12 defendant is entitled to a trial on this ground. new
Defendant asserts defense counsel was ineffec- tive failing of present defense consent to the first-degree charges, and by failing to call defen- CSC testify dant that his sexual interaction with the complainant was consensual. “[decisions regarding what present evidence whether to call question or presumed witnesses are to be matters of trial strategy,”13 we will second-guess which not the benefit hindsight.14 Furthermore, the failure to call witnesses only constitutes ineffective assistance of if it deprives defendant a substantial defense.15 The record reveals that defense counsel raised the through defense consent her cross- complainant, examination of the sought to bolster by attacking credibility. that defense Defense coun- bolstered theory argument. sel this in closing As the raised, defense of was actually consent defendant’s contention is without merit.
Defendant
contends
also
that defense counsel was
ineffective for
to file a notice of intent
to intro-
12
jury’s
The failure to
this
introduce
evidence
consideration
impact regardless
had the same
of whether it resulted from counsel’s
or,
Judge
concludes,
opinion
ineffectiveness
as
from the trial
Schuette’s
court’s error.
(1999).
People Rockey,
74, 76;
App
v
NW2d
(On
People
Remand),
v Rice
235 Mich
This Court has 750.520j does not necessar- of MCL requirement notice past sexual the admission ily preclude In People and a defendant.18 relations between a victim (On that the exclu- Remand), this Court found v Lucas activity sexual between regarding past sion of evidence a defendant’s and the victim could violate the defendant no right Amendment of confrontation.19 Where Sixth determine whether filed, the trial court must notice is con- case-by-case admissible on a basis the evidence is the offer to timing the defendant’s sidering whether tactical suggests improper an such evidence produce 16 750.520j. MCL (1986) Perkins, 302, 307-308; People 424 Mich NW2d See (evidence relationship past a defendant and a victim is between probative). (On Remand), App v Lucas
19 Id. at 302. Opinion by Bandstra, J. and whether purpose,20 probative value of the evidence outweighs prejudicial its effect.21
The trial court failed to consider on the record the import of defense counsel’s timing weigh and to probative value of this evidence. It is clear from the record, however, that the trial court determined to ex- clude this evidence based on defense counsel’s failure to file a notice of intent. Evidence of the recent consensual sexual activity between defendant and the complainant highly probative very is likely outcome determina- tive. Defense counsel was constitutionally deficient for required to file the notice of intent to produce this evidence. The failure of defense counsel to meet with her client between the prehminary examination and trial in capital case; this the failure to lay proper foundation for admission of the 911 tape, addition to the failure to provide pursuant notice 750.520j(2), cumula- tively effectively deprived defendant of his Sixth Amendment right is, counsel. Defendant therefore, entitled to a new trial.
Defendant also challenges the trial court’s denial of his motion for a Ginther hearing remand from this Court and raises several issues with regard to his *7 sentence. It is axiomatic that when this case was remanded to court, the trial it was for the purpose of holding the Ginther hearing. However, as we have determined that trial, defendant is entitled to a new issue is now moot.
Reversed and remanded for further proceedings con- sistent with this opinion. We do not retain jurisdiction.
BANDSTRA, J. (concurring). I concur with the lead I opinion. do not conclude that the errors requiring 20 Id. at 302-303.
21 Perkins, supra at 307-308.
People
v Dixon
determinations
reversal,
likely
jury’s
affected the
which
in
close
did
this
victim’s
concerning the crimi-
regard
only
so
with
the accused re-
charges.
nal
“Unless
sexual
counsel,
risk
effective
‘a serious
ceives the
assistance
”
States v
the trial
itself.’ United
injustice
infects
2039;
L
648, 656; 104 Ct
80 Ed 2d 657
Cronic, 466 US
S
335, 343;
(1984),
Sullivan, 446 US
Cuyler v
quoting
(1980). Thus, disagree
I
Ct
SCHUETTE, PJ. in (concurring part dissenting a defendant was convicted on part). Following jury conduct, criminal first-degree two counts of 750.520b, concurrent terms of and was sentenced to In twenty-five fifty addition, for these offenses. years convicted of home invasion in violation was 750.110a(2) of MCL and was sentenced for ten to twenty years imprisonment for this crime. Further- more, defendant was convicted of felonious assault violation of MCL 750.82 and was sentenced for two to years four for this crime. in the have
My distinguished colleagues majority determined that the at performance defense counsel and, result, trial was ineffective as a this case should be trial. in one Except reversed remanded for new below, majori- I do not explained instance as share ty’s opinion performance the trial counsel’s fell (On below the standard articulated in v Sabin Remand), Second
(2000). “A
he
denied the
defendant that claims
has been
(1)
effective assistance of counsel must establish
objective
of his counsel was below an
prevailing profes-
standard of reasonableness under
*8
Schuette,
(2)
probability
sional norms and
a reasonable
exists
that,
errors,
unprofessional
the absence of counsel’s
proceedings
the outcome of the
would have been differ-
668;
Id., citing
ent.”
Strickland v
466 US
Washington,
2052;
addition,
L Ed
In
104 S Ct
2d 674
I
would affirm
in-
defendant’s convictions on the home
charge
charge.
vasion
and the felonious assault
appeal,
separate
On
defendant claims that on five
trial
occasions
was ineffective.
First,
that he was denied effective
only
assistance of counsel because he
had a brief oppor-
tunity
attorney
to meet with his
before the preliminary
examination. Defendant argues that we should find
constitutional
error without a
showing
prejudice
pursuant
Cone,
685, 695-696;
to Bell v
535 US
122 S Ct
1843;
(2002),
The United States Court of Appeals for Sixth Circuit has held that pre-trial period “the constitutes ‘critical period’ because it encompasses counsel’s con- stitutionally imposed duty to investigate case.” (CA 2003). Mason, 732, 6, Mitchell v 325 F3d Defendant relies on the court’s decision Mitchell to support argument his that he was denied effective assistance of at a stage critical of the proceed- Mitchell, In ings. the “defense . utterly counsel. . failed his client during pre-trial period,” critical because “no effort to consult the client was made.” Id. at 744. the instant case is more closely analo- (CA gous 192, to Dick v Scroggy, 6, 1989), 882 F2d Mitchell, cited in supra, p where “the defendant’s People v Dixon
Opinion by E J. *9 rejected claim was because coun- ineffective assistance had, fact, thirty interviewed the defendant a sel meeting.” minute forty-five Here, met attorney defendant concedes that his with A him the examination. review of preliminary transcript the examination reveals that had of the relevant facts apprised defense counsel been case, the and that the victim questions counsel asked to undermine her and call into designed credibility accusing her motivation for defendant of the question Defense counsel elicited that alleged crimes. machete, gloves, the victim did not see the and mask them; after defendant first entered the house with that defendant, although they she had broken with up frequent contact; they continued to have that had incident; one week before the that even consensual sex the victim had taken a though personal protection out defendant, order on she continued to have contact with him; and that the victim called defendant at 7:00 P.M. on day of the incident. counsel Defense raised potential defenses of consent and that the victim only accused defendant of the crimes she was angry because Further, he not fix her that did door. defense counsel question prosecution called into during up witnesses followed these theories cross-examination at trial. it exceptional
While is true that a “few circumstances are likely prejudice ... so the defendant reviewing consequences court need not examine the conduct,” lawyer’s and that “one of circum- th[o]se stances denial of counsel to a criminal complete is at a critical stage proceedings,” Mitchell, case does not rise to such a level. instant added). Mitchell, Unlike supra, p (emphasis supra, demon- undisputed where record evidence p “[t]he Opinion by thát counsel strate[d] [the defendant’s] never consulted him,” defense counsel in the instant case met with defendant before the preliminary examination, was apprised of the relevant facts of the put forth information, defense theories based on that pro- vided defendant with the assistance of guaran- teed the Sixth Amendment. The instant case does likely involve circumstances “so prejudice accused that the cost of litigating their effect in a Cronic, particular unjustified.” case is supra, p 658. Therefore, defense counsel was not ineffective for fail- ing to meet with defendant for a time longer period before trial.
Next, defendant he was denied the effec- *10 tive assistance of counsel where defense counsel failed to file a notice of intent to introduce evidence of the past victim’s sexual conduct with defendant required as by 750.520j. MCL
Defense counsel conceded that she had complied with the requirement notice set forth in MCL 750.520j(2), argued but that the prosecution was al- ready aware of defendant and the victim’s prior sexual relationship pursuant to her testimony at the prelimi- nary examination, and that the purpose of the notice requirement had thus been fulfilled. Defense counsel argued that our Supreme Court’s decision in People v Perkins, 424 302, 307-308; Mich (1986), NW2d 390 supported admitting evidence of consensual sex be- tween defendant and the victim one week before the incident, because it was relevant and supported defen- theory dant’s that the sex was consensual in this instance. Defendant argues that defense fail- ure to comply with the notice requirement fell below an objective standard of reasonableness, and that there ais reasonable probability that, error, but for counsel’s the People v Dixon Schuette, different. have been would proceedings outcome of 702, 645 NW2d Rodgers, held that failure has this Court 750.520j requirement notice with the comply admission of evidence necessarily preclude does not and a defen- a victim relations between sexual past (On Remand), Mich App v Lucas dant. People (1992). Further, cross- upon 303; 484 NW2d elicited victim, defense counsel examination of year for a had dated and defendant she each to see up, but continued half, and had broken and a of a Therefore, jury was aware frequently. other the victim. between defendant relationship prior past evidence of a have admitted The trial court could and defendant the victim relationship between sexual Lucas, even without supra, in holding to the pursuant 750.520j. of MCL None- requirement notice ten-day jury of this case theless, under the circumstances acts of specific made aware of recent have been should defendant. the victim and relations between jury that defendant by members of Speculation have been recently might relationship the victim’s Therefore, agree I this sexual is not sufficient. it did was ineffective as instance, trial counsel’s conduct Sabin, or supra, set forth not meet standard Strickland, supra. failure that defense counsel’s also
Defendant of a 911 for the admission foundation *11 reasonableness, of objective fell an standard below tape that, for but probability a reasonable and that there is would error, proceedings outcome of the counsel’s the record reveals While have been different. foundation lay proper to a unable counsel was to elicit she was able tape, the 911 the admission of victim between the the conversation of the substance 406 393 by Schuette, EJ. operator
and the 911 of vic- cross-examination tim, victim including testimony that the did not call 911 incident; until an hour a half after the that she was upset not she called that she lied during when call about having into; her house been broken and that spoke operator she to the 911 in an extremely calm voice.
Here, defense counsel to attempted authenticate the tape by using the victim to identify own voice. The trial court ruled that this not a proper was mode of However, authentication. the trial court should have admitted the 911 tape because the victim was able authenticity vouch its and state what it pur- was be, recording a ported her call an seeking help after assault. Defendant did not appeal the trial court’s evidence, refusal to admit the tape into but defense met the standard set forth Sabin, Strickland, supra, The supra. facts and circumstance this case are similar to the case v Berkey, (1991), NW2d Supreme which our Court held that authentication of taped conversations between a defendant and a victim to be was determined in light of MRE In Berkey, 901.1 supra, tape recordings conversations between a de- ceased victim and the defendant were sufficiently au- by a neighbor thenticated who identified the voices on a recording. In tape bar, the case at the error in not admitting the was tape by made the trial court and by defense counsel. Under Berkey, the trial court should have allowed the victim to authenticate tape and then jury allowed the to hear the 911 call. 901(a) requirement MRE states: “The of authentication or identifi precedent admissibility cation as a condition is satisfied support finding sufficient question matter in is what its proponent claims.” *12 Dixon attempting ineffective counsel was I would tape the 911 to authenticate use the victim issue. on this not reverse assis- of ineffective other claims two Defendant’s no merit. have tance of counsel assault felonious defendant’s I would affirm defen- convictions, would reverse but invasion home convictions criminal sexual degree first dant’s ineffective counsel was grounds on the solely evidence of introduce of intent to file a notice failing to and not conduct with past the victim’s in attempting actions of defense basis the 911 call. authenticate