PEOPLE OF MI V JAMES PAUL SNIDER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 22, 1997
Plaintiff-Appellee,
v
No. 173545
Ottawa Circuit Court
LC No. 93-017447-FC
JAMES PAUL SNIDER,
Defendant-Appellant.
Before: Reilly, P.J., and Hood and Murphy, JJ.
PER CURIAM.
Defendant was convicted, following a bench trial, of bank robbery, MCL 750.531; MSA
28.799, and habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced to ten
to twenty-five years’ imprisonment. Defendant appeals as of right. We affirm in part, and reverse and
remand in part.
Defendant was convicted of robbing the Old Kent Bank on North River in Holland Township.
At trial, both the prosecution and defendant agreed that the issue was not whether the bank had been
robbed at the time in question, but whether defendant was the person who committed the robbery. A
number of eyewitnesses testified regarding the robbery. Most of the eyewitnesses could not positively
identify defendant as the culprit. However, several of defendant's family members, including his mother,
adopted father, a brother, and a sister, positively identified defendant from enlarged photographs made
from a videotape taken by bank surveillance cameras during the bank robbery.
Defendant argues that, because the pivotal issue in the bank robbery charge was his
identification as the perpetrator of the crime, the trial court abused its discretion in denying his pretrial
motion for an expert witness to address the question of identification. We disagree. Rulings on such
motions are expressly left to the discretion of the trial court. In re Attorney Fees of Klevorn, 185
Mich App 672, 678; 463 NW2d 175 (1990); People v Miller, 165 Mich App 32, 47; 418 NW2d
668 (1987).
MCL 775.15; MSA 28.1252 requires a defendant to show "to the satisfaction of the judge
presiding over the court wherein such trial is to be had . . . [that] he cannot safely proceed to a trial
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[without the proposed witness]." In other words, a defendant must show a nexus between the facts of
the case and the need for an expert. People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838
(1995).
We find that defendant did not make the requisite showing under the statute that, without the
expert, he could not proceed to a trial. Members of defendant’s own family positively identified him as
the culprit from photographs taken during the crime by the bank’s surveillance cameras. Under these
facts, defendant has failed to show any nexus between the positive identification of him by family
members and the alleged need for an expert to explain that identification. The trial court did not abuse
its discretion by denying defendant's motion.
Defendant also argues that his Sixth Amendment right to counsel was violated when Robert
Scott, one of his cell mates, was allowed to testify at trial regarding incriminating evidence Scott had
allegedly learned from defendant, where law enforcement officers, after conferring with Scott, allowed
him to remain in defendant’s cell and subsequently met with him again. We disagree.
The Sixth Amendment to the United States Constitution guarantees an accused, after inception
of formal charges, the right to rely on counsel as a “medium” between himself and the state, and this
guarantee encompasses the state’s affirmative obligation not to circumvent the protections accorded an
individual who invokes this right. Maine v Moulton, 474 US 159, 176; 106 S Ct 477; 88 L Ed 2d
481 (1985). Courts have not hesitated to find a violation of the right to counsel where the government
has intentionally created a situation likely to induce a defendant to make incriminating statements without
the assistance of counsel and has deliberately elicited the incriminating statements. Moulton, supra at
180; United States v Henry, 447 US 264, 274; 100 S Ct 2183; 65 L Ed 2d 115 (1980); Massiah v
United States, 377 US 201, 206; 84 S Ct 1199; 12 L Ed 2d 246 (1964); United States v Brink, 39
F3d 419, 423-424 (CA 3, 1994). However, “a defendant does not make out a violation of [a Sixth
Amendment] right simply by showing that an informant, either through prior arrangement or voluntarily,
reported his incriminating statements to the police. Rather, the defendant must demonstrate that the
police and their informant took some action, beyond mere listening, that was designed deliberately to
elicit incriminating remarks.” Kuhlmann v Wilson, 477 US 436, 459; 106 S Ct 2616; 91 L Ed 2d
364 (1986).
In this case, our review of the evidence convinces us that no violation of defendant’s right to
counsel occurred. The common thread running through cases finding a violation of an accused’s Sixth
Amendment rights, which is a collusive nexus between government authorities and an informant to
improperly elicit incriminating evidence from a defendant, is absent here. By the time Scott had contact
with the authorities, he had already amassed the incriminating evidence against defendant. We find no
error.
Defendant also raises several instances of ineffective assistance of counsel at trial. After an
evidentiary hearing pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973),
conducted on remand ordered by this Court, the trial court concluded that counsel had not been
ineffective. We agree.
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Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Effinger,
212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of counsel, a
defendant must show that counsel’s performance was below an objective standard of reasonableness
under prevailing norms and that there is a reasonable probability that, but for counsel’s error, the result
of the proceedings would have been different. Id. A defendant must also overcome the presumption
that the challenged action or inaction was trial strategy. People v Johnson, 451 Mich 115, 124; 545
NW2d 637 (1996). This Court will not substitute its judgment for that of trial counsel in matters of trial
strategy. People v Sawyer, 222 Mich App 1, 3; ___ NW2d ___ (1997).
Defendant claims that trial counsel was ineffective for failing to challenge the investigating
detective’s testimony that he had eliminated all suspects except defendant as likely perpetrators of the
crime. The trial court recognized this as a mistake, but concluded that it made no difference in the
outcome of the trial. We agree. Furthermore, although in retrospect counsel opined that his cross
examination of the detective on this issue might not have been wise trial strategy, this Court will not
substitute its judgment for that of counsel on such matters. Id. The fact that a strategy does not work
does not render its use ineffective assistance of counsel. People v Stewart (On Remand), 219 Mich
App 38, 42; 555 NW2d 715 (1996).
Defendant also claims that trial counsel did not adequately interview Ken DeJonge prior to trial.
The trial court concluded that trial counsel did talk to the witness and gained whatever information the
witness had to offer. We agree with the trial court's conclusion that this claim does not overcome the
strong presumption that defendant was afforded effective assistance of counsel. We are not convinced
that, but for trial counsel’s actions, the outcome of defendant's trial would have been different.
Defendant also claims that trial counsel had a conflict of interest because he was acquainted with
Scott. At the remand hearing, trial counsel testified that he had met Scott approximately twenty years
before defendant's trial and had socialized with him to some extent at that time. Counsel denied that
Scott was his "drinking buddy" and averred that he had not seen Scott for twenty years and that his
acquaintance with Scott presented no conflict of interest. The trial court determined that there was no
indication that counsel's relationship with Scott effected counsel's representation of defendant or that it
affected counsel's treatment of Scott as a witness. We agree and find that defendant was afforded
effective assistance of counsel.
Defendant further claims that trial counsel was ineffective for failing to move to disqualify the trial
judge on the ground that he had handled certain pretrial motions that might have prejudiced him. Based
on the evidence presented against defendant, we are not convinced that, but for trial counsel’s actions,
the outcome of defendant's trial would have been different.
Defendant also claims that trial counsel was ineffective for failing to move to suppress Scott's
testimony because it violated his Sixth Amendment Rights. We concluded that Scott's testimony did not
violate defendant's constitutional right to counsel. It therefore follows that defendant was not prejudiced
by counsel's failure to challenge the testimony. Defendant was not denied his right to effective assistance
of counsel.
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Defendant also claims that his conviction for second-offense habitual offender must be vacated
because he was tried by the court without validly waiving his right to a jury trial. We agree. We note
that the prosecutor concedes this issue, and agrees that reversal is required on this issue. At the time of
defendant's trial for bank robbery, he was entitled to a jury trial on the habitual offender charge. MCL
769.13; MSA 28.1085. Although he had a statutory right to waive a jury trial and be tried by the court,
any waiver must have been in accordance with MCR 6.402. Our review of the record confirms that
defendant did not effectively waive his right to trial by jury on the supplemental charge. We therefore
reverse defendant's conviction of habitual offender, second offense, vacate his sentence, and remand for
further proceedings on the habitual offender charge.
We affirm defendant's conviction for bank robbery, reverse his conviction for habitual offender,
second offense, vacate that sentence, and remand this case to the trial court for further proceedings on
the habitual offender charge. We do not retain jurisdiction. 1
/s/Maureen P. Reilly
/s/ Harold Hood
/s/ William B. Murphy
1
Defendant also argues that he is entitled to either an adequate settled record or a new trial because
portions of the trial proceedings were not transcribed. This issue has been rendered moot by the
remand hearing at which the parties stipulated to settle the record regarding the missing testimony.
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