PEOPLE OF MI V GABRIEL FERRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 1999
Plaintiff-Appellee,
v
No. 193744
Saginaw Circuit Court
LC No. 95-010303 FC
GABRIEL FERRIS,
Defendant-Appellant.
Before: Smolenski, P.J., and Saad and Gage, JJ.
SMOLENSKI, P.J. (dissenting).
I respectfully dissent and would affirm defendant’s conviction.
I disagree with the majority’s conclusion that the prosecutor knew that Mays gave false
testimony at defendant’s trial when he stated that he had no expectations of leniency and that the
prosecutor had an affirmative duty to disclose these expectations. The prosecutor made only vague,
non-specific comments regarding Mays’ treatment in his pending criminal case. Mays had neither an
actual promise for leniency in his pending criminal case nor a reasonable expectation of leniency.
Rather, Mays had nothing more than a hope for leniency after he testified. A mere future possibility of
leniency does not require disclosure. People v Atkins, 397 Mich 163, 174; 243 NW2d 292 (1976).
I also disagree with the majority’s conclusion that the trial court improperly admitted evidence of
defendant’s prior abuse of his former wife pursuant to MRE 404(b)(1). The victim in this case was
allegedly strangled and raped. The prosecution’s evidence that defendant grabbed his former wife
around the throat, choked her and either raped or attempted to rape her was relevant with respect to a
modus operandi theory to prove the perpetrator’s identity in this case. See People v VanderVliet,
444 Mich 52, 66; 508 NW2d 114 (1993). Therefore, the trial court did not abuse its discretion in
admitting this evidence pursuant to MRE 404(b)(1).
I further disagree that defense counsel was ineffective for failing to investigate or pursue the
sterility issue at defendant’s trial. To justify a reversal due to ineffective assistance of counsel, defendant
must establish that his counsel’s performance fell below an objective standard of reasonableness and
that counsel’s representation so prejudiced him as to deprive him of a fair trial. People v Pickens, 446
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Mich 298, 302-303; 521 NW2d 797 (1994). Defendant must overcome the presumption that
counsel’s action was sound trial strategy and, as a result, deprived him of a substantial defense that
would have affected the outcome of the trial. People v Daniel, 207 Mich App 47, 58; 523 NW2d
830 (1994). Defense counsel was forced to make difficult strategic decisions in a case involving
twenty-year-old evidence. Given that the medical examiner could not conclusively testify that the
substance found inside the victim was semen or that the perpetrator was sterile, that the state had lost
scientific evidence gathered in the case, that counsel feared that defendant was sterile, and counsel’s
statement that defendant failed a polygraph test, it does not appear unreasonable for counsel to avoid
creating additional scientific evidence in the form of a semen test which, at best, could rebut the medical
examiner’s inconclusive testimony. Under the facts of this case, I cannot conclude that defense
counsel’s representation deprived defendant of a substantial defense that would have affected the
outcome of the trial.
Finally, I disagree with the majority’s conclusion that the cumulative effects of the errors at trial
deprived defendant of a fair trial.
/s/ Michael R. Smolenski
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