PEOPLE OF MI V DARIN L SHOOK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 31, 1998
Plaintiff-Appellee,
v
No. 194220
Oakland Circuit Court
LC No. 94-133617 FC
DARIN L. SHOOK,
Defendant-Appellant.
Before: Bandstra, P.J., and Griffin and Young, Jr., JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of third-degree criminal sexual conduct, MCL
750.520d; MSA 28.788(4). He was subsequently sentenced to seven to fifteen years’ imprisonment.
Defendant now appeals as of right. We affirm.
On appeal, defendant first argues that the trial court abused its discretion by denying his request
to exclude references by the prosecution to a prior arson conviction and assault and battery charge.
We disagree. This Court reviews a trial court’s decision to admit or exclude particular evidence for an
abuse of discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995).
Evidence regarding other bad acts of a defendant must satisfy three criteria in order to be
permitted under MRE 404(b): (1) it must be offered for a proper purpose, (2) it must be relevant, and
(3) its probative value must not be substantially outweighed by its potential for unfair prejudice. People
v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), modified on other grounds 445 Mich
1205 (1994). Finally, the trial court, upon request, may provide a limiting instruction under MRE 105.
Id. at 75.
Here, evidence of defendant’s prior arson conviction, for which he was on probation, as well as
the assault and battery charge that was ultimately dismissed, was relevant to show why the complainant
recanted her story to the police that defendant raped her: the complainant sought to keep defendant
from getting in even more trouble. This clearly was a proper purpose for introducing this evidence, and
we are not persuaded that the trial court erred in concluding that the probative value of this evidence
was not substantially outweighed by the danger of unfair prejudice. Finally, the trial court provided a
cautionary instruction to the jury, limiting the
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purpose for which the prior bad acts evidence could be considered. We find no abuse of discretion.
See People v Barker, 161 Mich App 296, 303; 409 NW2d 813 (1987).
Next, defendant claims that he was denied his constitutional right to a speedy trial by virtue of a
nineteen-month delay between his arrest and trial. We disagree. Whether a defendant was denied his
constitutional right to a speedy trial is a mixed question of fact and law. People v Gilmore, 222 Mich
App 442, 459; 564 NW2d 158 (1997). This Court reviews the trial court’s factual findings under the
clearly erroneous standard, and the legal constitutional questions are reviewed de novo. Id. In
determining whether a defendant has been denied his right to a speedy trial, this Court considers (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy
trial, and (4) any prejudice to the defendant. Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L
Ed 2d 101 (1972); People v Hill, 402 Mich 272, 283; 262 NW2d 641 (1978).
We are not persuaded that defendant was denied his right to a speedy trial. There is nothing in
the record to indicate that the delay was attributable to anything other than court docket congestion.
While such delays are generally attributable to the prosecution, they are assigned only minimal weight in
determining whether a defendant was denied his right to a speedy trial. People v Simpson, 207 Mich
App 560, 564; 526 NW2d 33 (1994). We note that at least one adjournment was caused solely by
the unavailability of a defense witness, and defendant apparently stipulated to the remaining
adjournments. See Gilmore, supra at 460-461. Moreover, defendant never asserted his right to a
speedy trial below.
Finally, we fail to see how defendant was prejudiced by the delay. While we acknowledge that
a delay of over eighteen months creates a presumption of prejudice, that factor must be balanced with
the other relevant factors. Indeed, long delays alone do not necessarily constitute a denial of the right to
a speedy trial. Simpson, supra. Defendant did not suffer prejudice to his person because he was out
on bond for most of the time prior to trial. Moreover, we can discern no prejudice to his defense.
Although defendant claims that witnesses’ memories were faded, this is not a sufficient basis for finding a
speedy trial violation. Gilmore, supra at 462.
Defendant also argues that he was denied the effective assistance of counsel at trial. He asserts
five instances where defense counsel allegedly provided deficient representation, and claims that such
deficiencies warrant reversal of his conviction. Defendant did not move below for either a new trial or
an evidentiary hearing on t is basis.1 Therefore, our review is limited to mistakes apparent on the
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record. People v Price, 214 Mich App 538, 547; 543 NW2d 49 (1995).
In order to establish a claim of ineffective assistance of counsel, a defendant must establish that
his counsel’s performance was so deficient that counsel was not functioning as the “counsel” guaranteed
by the Sixth Amendment, and that the deficient performance prejudiced the defense to the extent that
the defendant was deprived of a fair trial with a reliable result. People v Mitchell, 454 Mich 145, 156;
560 NW2d 600 (1997). The defendant also has the obligation to show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995). Effective assistance of
counsel is presumed, and the defendant bears the burden of proving otherwise. Mitchell, supra.
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Defendant’s first claim is that counsel was deficient in failing to call a witness that defendant
alleges would have rebutted the testimony of the complainant. We disagree. The decision whether to
call certain witnesses falls squarely within counsel’s discretion concerning trial strategy. People v
Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). A defendant must show that failure to call a
witness at trial deprived him of a substantial defense that would have affected the outcome of the case in
order to prove a claim of ineffective assistance. People v Hoyt, 185 Mich App 531, 537-538; 462
NW2d 793 (1990). Here, other than a vague assertion that it would have rebutted the complainant’s
testimony, defendant does not even indicate what testimony this witness would have given, let alone
explain how it would have been beneficial to the defense such that the outcome of the case would have
been different.
Second, defendant claims that counsel should have called an expert witness to discuss the
spousal abuse syndrome in order to rebut the prosecution’s expert testimony. However, because
defendant has failed to articulate how the absence of an expert witness was detrimental or prejudicial to
the defense, defendant’s claim is without merit.
Third, defendant claims that defense counsel was deficient for failing to file a motion to dismiss
for lack of a speedy trial. However, as discussed above, defendant’s claim that he was denied a
speedy trial lacks merit. Thus, defendant has failed to show how he was prejudiced by counsel’s failure
to seek dismissal on this basis.
Fourth, defendant complains that defense counsel failed to utilize a peremptory challenge during
voir dire to excuse a juror whose family had been affected by an arson fire. However, the juror stated
that the incident would not affect her ability to be fair and impartial, and that she would not hold
defendant’s prior arson conviction against him. Thus, we conclude that counsel’s decision not to excuse
the challenged juror was a reasonable exercise of trial judgment and did not constitute ineffective
assistance of counsel.
Finally, we reject defendant’s argument that he was denied the effective assistance of counsel
because of counsel’s failure to investigate potential alibi witnesses, and to engage in longer discussions
with defendant prior to trial. In order to successfully assert a claim that counsel’s lack of preparation or
failure to investigate constituted ineffective assistance of counsel, defendant must establish that he
suffered prejudice as a result. People v Caballero, 184 Mich App 636, 640; 459 NW2d 80 (1990).
There is no indication in the existing record that defense counsel’s alleged failure to interview potential
witnesses and otherwise adequately prepare for trial resulted in counsel’s ignorance of evidence which
would have substantially benefited the defense.2 In sum, defendant has failed on this record to establish
that he did not receive the effective assistance of counsel at trial.
Defendant next argues that the trial court erred in allowing the complainant’s friend and sister to
repeat statements made to them by the complainant that defendant raped her. We find no abuse of
discretion in the trial court’s ruling that the challenged statements were not hearsay because they were
prior consistent statements used to rebut a charge of recent fabrication under MRE 801(d)(1)(B).
MRE 801 provides, in pertinent part:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if –
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(1) Prior Statement of Witness. The declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement, and the statement is . . . .
(B) consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive . . . .
In this case, defendant’s theory of the case was that the complainant was fabricating the rape
allegation in order to protect herself from prosecution for filing a false police report, and out of jealousy
and revenge over defendant’s involvement with another woman. In response, the prosecution offered
evidence of the complainant’s prior statements that were consistent with her trial testimony that
defendant had raped her. The complainant testified at trial and was subject to cross-examination
concerning the statements, which statements were made before she had a motive to fabricate. MRE
801(d)(1)(B) expressly permits such testimony as nonhearsay. See People v Brownridge, 225 Mich
App 291, 301; 570 NW2d 672 (1997).
Defendant next argues that the trial court erred in admitting certain testimony by Kate
McNamara, a victim’s advocate in the Domestic Violence Section of the Oakland County Prosecutor’s
Office. We agree with defendant that McNamara’s qualifications, if any, to give expert testimony
regarding the conduct of domestic violence victims was not sufficiently established. However, we
conclude that any error in the admission of McNamara’s testimony was harmlessly cumulative to that of
Judy Lee, whose expert qualifications defendant did not challenge. Cf. People v Rodriguez (On
Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996). We further reject as unfounded
defendant’s claim that McNamara improperly vouched for the complainant’s credibility. Finally,
because no objection was lodged at trial, we decline to address defendant’s claim that McNamara
repeated hearsay statements made to her by the complainant. People v Dowdy, 211 Mich App 562,
570; 536 NW2d 794 (1995).
Defendant’s last claim on appeal is that he was denied a fair trial because the prosecutor was
allowed “to turn this case from a first degree criminal sexual conduct trial into a domestic violence
case.” However, because defendant provides no authority supporting his position, which we also find
to be meritless, we decline to address it. People v Piotrowski, 211 Mich App 527, 530; 536 NW2d
293 (1995).
Affirmed.
/s/ Richard A. Bandstra
/s/ Richard Allen Griffin
/s/ Robert P. Young, Jr.
1
Furthermore, we note that this Court denied defendant’s request to remand this matter for an
evidentiary hearing.
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2
Defendant did attach to his appellate brief several unauthenticated items in support of this claim that
are not part of the lower court record, nor were they attached to defendant’s prior motion to remand.
Therefore, we decline to consider them. MCR 7.210(A)(1).
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