PEOPLE v. McFALL
Docket No. 318830
Court of Appeals of Michigan
March 5, 2015
309 Mich. App. 377
PEOPLE v McFALL
Docket No. 318830. Submitted February 3, 2015, at Lansing. Decided March 5, 2015, at 9:00 a.m.
John B. McFall was convicted following a jury trial in the Emmet Circuit Court, Charles W. Johnson, J., of failing to register as a sex offender in violation of
The Court of Appeals held:
1. Substitution of counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause may exist when a legitimate difference of opinion develops between a defendant and his or her appointed counsel regarding a fundamental trial tactic, when there is a destruction of communication and a breakdown in the attorney-client relationship, or when counsel shows a lack of diligence or interest. In this case, defendant asserted that he was entitled to substitute counsel because his attorney (1) prosecuted defendant for sex offenses in 1995 (and obtained the convictions that led to his imprisonment), (2) allegedly waived the preliminary examination over defendant‘s objection, (3) supposedly did not communicate with defendant and provide him materials related to his trial, and (4) disagreed with defendant on what defense to pursue. None of defendant‘s assertions had merit. Defendant knew from the beginning of the case that his attorney had prosecuted him in 1995, but did not object until the night before the trial began and had stated that the attorney was “a good lawyer.” If defendant was uncomfortable with having the former prosecutor serve as his defense counsel, he should have requested substitute counsel at the beginning of the representation. Moreover, there was nothing in the record to demonstrate that defense counsel ignored defendant‘s alleged desire to have a preliminary examination; that defense counsel failed to answer defendant‘s calls, reply to his mail, or provide him with needed discovery materials; or that defense counsel failed to pursue the defense defendant wanted. Defendant therefore failed to show good cause for the appointment of substitute counsel, and the trial court correctly denied his request for a new attorney.
2. If a sex offender fails to comply with his or her obligations under the Sex Offenders Registration Act, under
Affirmed.
CRIMINAL LAW - CRIMES - FAILURE TO COMPLY WITH THE SEX OFFENDERS REGISTRATION ACT - FAILURE TO REPORT ON SCHEDULE - STRICT LIABILITY.
Under
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, David H. Goodkin, Assistant Attorney General, and James R. Linderman, Prosecuting Attorney, for the people.
Madelaine P. Lyda for defendant.
Before: SAAD, P.J., and OWENS and K. F. KELLY, JJ.
SAAD, P.J. Defendant appeals his jury conviction of failing to register as a sex offender, pursuant to
Defendant is a convicted sex offender, and was sentenced to a lengthy prison term for his most recent crimes.1 In January 2013, in anticipation of defendant‘s release from prison, a notary public met with defendant to witness his receipt of a notice explaining his obligations under the Sex Offenders Registration Act (SORA),
After his release from prison on February 18, 2013, defendant registered as a sex offender at the Emmet County Sheriff‘s Office, as required by
Because defendant is indigent, the state appointed an attorney to represent him, who, by chance, had prosecuted defendant for his earlier sex offenses. Nonetheless, defendant—who was aware that the attorney had prosecuted him—did not object to the appointment, and even stated that the attorney is a “good lawyer.”
Soon after the completion of jury selection, defendant‘s counsel, outside the presence of the jury, informed the trial court that defendant wanted substitute counsel. The attorney explained that, the night before and the morning of trial, defendant told him that he should not have waived the preliminary examination, and complained of a supposed lack of communication between counsel and defendant. Defendant then spoke with the trial court, and claimed that his attorney had discussed his defense strategy with the prosecution and the court—namely, whether defendant could claim that he did not “willfully” violate
After defendant stated that he had told his attorney the night before trial that he no longer wanted the attorney to represent him, the trial court denied his request for substitute counsel. The trial court stated that defendant‘s effort was “an improper tactical maneuver . . . on the morning of trial to impede progress of this matter,” and further stressed that (1) defendant was aware of his attorney‘s prior prosecution of him from the beginning of the representation, and yet did not object to the appointment, and (2) defense counsel was a skilled attorney who regularly appeared before the court, and that defendant had acknowledged his lawyer‘s capability. Defendant‘s case then proceeded to trial.
Defendant, who testified on his own behalf, argued that he did not “willfully” violate SORA—he believed he only had to verify his residency every 90 days—and that he could not be convicted under
On appeal, defendant argues that the trial court abused its discretion when it (1) denied his request for substitute counsel, and (2) refused to instruct the jury on the element of “willfulness” supposedly contained in
II. STANDARD OF REVIEW
We review a trial court‘s decision denying substitution of counsel for an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). A trial court abuses its discretion when it issues a decision that falls outside the range of principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (opinion by CAVANAGH, J.).
Jury instructions that involve questions of law are reviewed de novo. People v Jones, 497 Mich 155, 161; 860 NW2d 112 (2014). A trial court‘s determination of whether a jury instruction applies to the facts of the case is reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Again, a trial court abuses its discretion when a decision falls outside the range of principled outcomes. Feezel, 486 Mich at 192 (opinion by CAVANAGH, J.).
III. ANALYSIS
A. SUBSTITUTION OF COUNSEL
“An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced.” Traylor, 245 Mich App at 462 (quotation marks and citation omitted). Substitution of counsel “is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process.” Id. (quotation marks and citation omitted). Good cause may exist when “a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic,”5 when there is a “destruction of communication and a
In this case, defendant argues that he should have received substitute counsel because his attorney (1) prosecuted him for sex offenses in 1995 (and obtained the convictions that led to his imprisonment), (2) allegedly waived the preliminary examination over his objection, (3) supposedly did not communicate with him and provide him materials related to his trial, and (4) disagreed with him on what defense to pursue.
None of these assertions have any merit. As noted, defendant knew that his attorney had prosecuted him from the beginning of the representation. And yet he did not voice any concerns about the issue (or any other aspects of defense counsel‘s representation) until the night before trial, when he supposedly requested new counsel. If defendant was uncomfortable with his attorney‘s representation in light of their prior history, the opportunity for him to request substitute counsel was at the beginning of the representation—not the night before trial. Defendant‘s protestation on this point is particularly unconvincing because of his stated satisfaction with defense counsel‘s services earlier in the representation—again, defendant went so far as to call his attorney “a good lawyer.”
Moreover, there is nothing in the record to demonstrate that defense counsel “ignored” defendant‘s alleged desire to have a preliminary examination, nor is there any indication that defense counsel failed to answer defendant‘s calls, reply to his mail, or provide him with needed discovery materials. The record also belies defendant‘s contention that defense counsel did not pursue the defense he wanted—his attorney asked the court to instruct the jury that a
Defendant therefore failed to show good cause for the appointment of substitute counsel, and the trial court correctly denied his request for a new attorney.
B. JURY INSTRUCTIONS
When a court interprets a statute, it first looks to its “plain language, which provides the most reliable evidence of intent.” People v McKinley, 496 Mich 410, 415; 852 NW2d 770 (2014) (quotation marks and citation omitted). “If the statutory language is unambiguous, no further judicial construction is required or permitted.” Id.
(1) Except as provided in subsections (2), (3), and (4), an individual required to be registered under this act who willfully violates this act is guilty of a felony . . . :
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(2) An individual who fails to comply with [ MCL 28.725a ] other than payment of the fee required under [MCL 28.725a(6) ], is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. [Emphasis added.]
As such, the plain language of
Here, defendant unconvincingly claims that the trial court erred when it refused to instruct the jury that his violation of
Defendant did not fulfill his obligations under
Affirmed.
OWENS and K. F. KELLY, JJ., concurred with SAAD, P.J.