PEOPLE v PUTMAN
Docket No. 318788
309 MICH APP 240
Submitted February 10, 2015. Decided February 19, 2015.
309 Mich. App. 240
Leave to appeal sought.
Michael B. Putman was convicted by a jury in the Wayne Circuit Court of two counts of assault with intent to murder,
The Court of Appeals held:
1. The trial court‘s failure to administer the oath to testify truthfully using the words of
2. Defense counsel‘s failure to object to the form in which the trial court administered the oath to testify truthfully did not constitute ineffective assistance of counsel. Any objection would have been meritless because the oaths satisfied the requirements of MRE 603, and counsel is not ineffective for failing to raise a meritless objection.
3. Defendant was not denied the opportunity to be confronted with the witnesses against him by a police officer‘s testimony about information that the officer had received from an anonymous source. Although the Confrontation Clause in both the Michigan and the United States Constitutions generally prohibits the admission of out-of-court statements that are testimonial in nature, it does not bar the use of such statements for purposes other than establishing the truth of the matter asserted. In this case, the testimony was admitted to explain why a police officer put a photograph of defendant in an array that was shown to several witnesses of the murder, which did not violate the Confrontation Clause. Because any objection to admitting this testimony would have been futile, counsel was not ineffective for failing to do so.
4. Defendant was not denied the effective assistance of counsel because of counsel‘s failure to call defendant‘s brother as a witness, failure to object to a police officer‘s testimony that he had obtained defendant‘s name from a specific crime-reporting system, or failure to properly cross-examine witnesses. First, the record did not indicate how defendant‘s brother would have testified had he been called, and defense counsel presented two other witnesses who testified that defendant was not in the area of the murder. Second, the record indicated that defense counsel thoroughly cross-examined the witnesses regarding the issues defendant raised in his brief on appeal. Finally, defendant did not advance any basis on which counsel could have objected to the testimony about the crime-reporting system or explained why the testimony was improper.
5. Defendant was not entitled to reversal of his armed-robbery conviction on the ground that the jury had rendered an inconsistent verdict by convicting him of armed robbery and second-degree murder while acquitting him of first-degree felony murder. Even assuming inconsistency, inconsistent verdicts within a single jury trial are permissible, and defendant did not establish that the jury was confused, had misunderstood the instructions, or had engaged in an impermissible compromise.
Affirmed.
- WITNESSES - OATH OR AFFIRMATION TO TESTIFY TRUTHFULLY - FORM OF ADMINISTRATION.
The oath or affirmation to testify truthfully must be administered to a witness in a form calculated to awaken the witness‘s conscience and impress the witness‘s mind with the duty to testify truthfully; no particular ceremonies, observances, or formalities are required (MRE 603;
MCL 600.1432(1) ). - COURTS - PRACTICE AND PROCEDURE - WITNESSES - OATH OR AFFIRMATION TO TESTIFY TRUTHFULLY.
The administration of oaths and affirmations to witnesses is a matter of procedure that falls within the Supreme Court‘s authority to regulate; to the extent that
MCL 600.1432(1) conflicts with MRE 603, MRE 603 controls.
Jonathan B.D. Simon and Michael B. Putman, in propria persona, for defendant.
Before: MURRAY, P.J., and HOEKSTRA and WILDER, JJ.
PER CURIAM.
Defendant first contends that the trial court erred when it did not properly administer to the witnesses the oath to testify truthfully as required by
Defendant did not object to the form of the oath given to the witnesses at trial. Therefore, the issue is unpreserved. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). This Court reviews unpreserved issues for plain error affecting a defendant‘s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In order for defendant to avoid forfeiture under the plain-error standard, he must show that (1) an error occurred, (2) the error was plain, meaning clear or obvious, (3) and the plain error affected substantial rights. Id. The third prong requires a showing of prejudice, which occurs when the error affected the outcome of the lower court proceedings. Id.
Under
The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, “You do solemnly swear or affirm“.
There are exceptions to this general rule, including
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
Comparing MRE 603 to the identical language of its federal counterpart, FRE 603, this Court has concluded that “no particular form or language is necessary when swearing or affirming to testify truthfully” in accordance with MRE 603.
In the present case, the trial court asked each witness, including defendant‘s own witnesses, if they promised to testify truthfully or some similar variation of that question.1 Each witness answered the trial court‘s question in the affirmative. This oath was sufficient to awaken the witnesses’ consciences and impress the witnesses’ minds with the duty to testify truthfully. Therefore, no plain error occurred.2
On appeal, defendant also maintains that defense counsel rendered ineffective assistance by failing to object to the oath administered by the trial court. This argument lacks merit, however, because counsel is not ineffective for failing to raise meritless or futile objections. People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012). Any objection by counsel to the oaths administered would have been meritless because, as stated earlier, the oath administered to the witnesses was sufficient to awaken the witnesses’ consciences and impress the witnesses’ minds with the duty to testify truthfully. Thus, counsel‘s failure to raise a meritless objection to the oaths did not deny defendant the effective assistance of counsel. See id.
Defendant next argues that he was denied the opportunity to confront the witnesses against him when a police officer testified about information received from an anonymous source. Defendant failed to object to this testimony at trial, meaning defendant‘s Confrontation Clause claim is unpreserved and re-viewed for plain error affecting his substantial rights. People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007). In the alternative, defendant argues that trial counsel was ineffective for failing to object to the use of this alleged testimonial hearsay. Because defendant failed to move for a new trial or a Ginther3 hearing, our review of this ineffective-assistance argument is limited to mistakes apparent on the record. Id.
In this case, Detroit Police Officer Steven Ford testified that he received a tip through Crime Stoppers that the individual who shot the victim was named “Mike” and that he “lived on Central.” Acting on this information, Ford did more investigating and discovered that defendant fit the description of the tip. Ford then placed defendant‘s photograph in an array that was shown to several witnesses to the shooting. In this context, it is clear that the informant‘s statement was not elicited from Ford to prove the truth of the statement, i.e., that “Mike” committed the murder; rather, it was used to explain why Ford put a photograph of defendant in the photographic array. Because the Confrontation Clause does not prevent the use of out-of-court testimonial statements to show why a police officer acted as he did, the admission of this testimony did not violate defendant‘s right of confrontation and he has not shown plain error. See id. at 10-11. Furthermore, because the testimony in question did not violate the Confrontation Clause, any objection on this basis would have been futile, and defense counsel is not ineffective for failing to make a futile objection. Eisen, 296 Mich App at 329. In short, defendant was not denied his right of confrontation and he was not denied the effective assistance of counsel on this basis.
Next, in a Standard 4 brief,4 defendant contends he was denied the effective assistance of counsel on other grounds. In particular, defendants contends that counsel rendered ineffective assistance by failing to call defendant‘s brother as a witness, failing to object to testimony that Officer Ford obtained defendant‘s name from the crime reporting system CRISNET, and failing to properly cross-examine witnesses.
Because defendant failed to move for a new trial or a Ginther hearing, our review of his ineffective-assistance claim is limited to mistakes apparent on the record. Chambers, 277 Mich App at 10. To establish ineffective assistance of counsel, a defendant must show that “(1) defense counsel‘s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel‘s deficient performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). A “defendant was prejudiced if, but for defense counsel‘s errors, the result of the proceeding would have been different.” Id. at 81. Effective assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise. Eisen, 296 Mich App at 329. Defendant also “bears the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
Decisions regarding whether to call or question a witness are presumed to be matters of trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Trial counsel‘s failure to a call a witness is only considered ineffective assistance if it deprived the defendant of a substantial defense. Id. A substantial defense is one that could have affected the outcome of the trial. See People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Likewise, decisions regarding what evidence to present, what evidence to highlight during closing argument, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). This Court will not “second-guess counsel on matters of trial strategy,” nor will it “assess counsel‘s competence with the benefit of hindsight.” Russell, 297 Mich App at 716.
Defendant first contends that trial counsel was ineffective for not calling defendant‘s brother as a witness. Defendant contends that his brother would have testified that he was in possession of defendant‘s cellular telephone on the night of the shooting, which is why the phone registered at the cell tower located on Central Avenue, within close proximity to the scene of the crime and quite a distance from the house where defendant claimed to be at the time of the shooting. This argument fails, however, because the record is devoid of any indication regarding the potential testimony of defendant‘s brother. Particularly, nothing in the record suggests that defendant‘s brother would have testified that he was in possession of defendant‘s phone on the night of the shooting. Consequently, defendant has failed to establish the factual predicate for his claim, and he has not overcome the presumption that his counsel‘s decision was a matter of sound trial strategy. Further, defendant has not shown that the failure to call defendant‘s brother as a witness denied him a substantial defense because defense counsel in fact presented two alibi witnesses who testified that defendant was not in the area of the murder. On the record presented, defendant has not shown that the failure to call his brother as a witness constituted ineffective assistance.
Defendant next contends that trial counsel was ineffective for failing to “challenge the prosecution‘s witnesses for truthfulness, accuracy and contradiction concerning testimony given.” In particular, defendant argues that trial counsel was ineffective for failing to “stress” to the jury that, upon viewing an earlier photographic array, Donald Davie had identified someone other than defendant as the person who had shot him. Defendant likewise contends that counsel was ineffective for failing to reveal the bias that witness Layman Giddings held against defendant, and that trial counsel was ineffective for failing to discredit Stephen Lewis‘s version of the events. Defendant‘s arguments in this regard are factually unsupported. The record demonstrates that trial counsel thoroughly cross-examined Davie regarding his misidentification of a man named Michael Terry and discussed the issue during closing arguments, plainly bringing this issue
Defendant also contends that he was denied the effective assistance of counsel by the failure to object to Officer Ford‘s testimony that he found defendant‘s information on the CRISNET reporting system. Apart from the unsubstantiated and undeveloped assertion that Ford‘s use of CRISNET was somehow “discriminatory” and “illegal[],” defendant has failed to specify on which ground counsel should have objected, meaning his claim in this regard may be considered abandoned. See People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). Indeed, defendant has not advanced any basis on which counsel could have objected or explained why the testimony was improper. Under these circumstances, defendant has not shown that trial counsel‘s performance fell below an objective standard of reasonableness or that, but for counsel‘s performance, there was a reasonable probability of a different outcome. He was not denied the effective assistance of counsel.
Defendant also asserts that he is entitled to reversal of his armed-robbery conviction because the jury verdict was inconsistent. Specifically, defendant claims that the jury rendered an inconsistent verdict by convicting defendant of armed robbery and second-degree murder while at the same time acquitting defendant of first-degree felony murder. Even assuming inconsistency, defendant is not entitled to relief because inconsistent verdicts within a single jury trial are permissible and do not require reversal. People v Wilson, 496 Mich 91, 100-101; 852 NW2d 134 (2014). “[J]uries are not held to any rules of logic nor are they required to explain their decisions.” Id. at 101 (citation and quotation marks omitted). Although defendant complains of a purported inconsistency, he makes no effort to establish that the jury was confused, that they misunderstood the instructions, or that the jury engaged in an impermissible compromise. See People v Lewis, 415 Mich 443, 450-452; 330 NW2d 16 (1982); People v McKinley, 168 Mich App 496, 510-511; 425 NW2d 460 (1988). Absent such circumstances, inconsistent verdicts within a single jury are permissible, and defendant is not entitled to reversal of his convictions. See Wilson, 496 Mich at 100-101.
Affirmed.
MURRAY, P.J., and HOEKSTRA and WILDER, JJ., concurred.