PEOPLE OF MI V PAULETTE M RUFFIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 9, 2001
Plaintiff-Appellee,
v
No. 217347
Wayne Circuit Court
Criminal Division
LC No. 98-002771
PAULETTE M. RUFFIN,
Defendant-Appellant.
Before: Griffin, P.J., and Holbrook, Jr., and Murphy, JJ.
PER CURIAM.
Defendant appeals as of right from her bench trial convictions of two counts of assault
with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277. Defendant was
sentenced to serve one year probation. We affirm.
This case stems from a dispute over a shared driveway in the city of Detroit and the
physical assault which resulted between defendant and the owner of the rental property next door.
Defendant argues that her waiver of the right to trial by jury was not valid for several
reasons which we find unpersuasive.
A trial court’s determination that a defendant validly waived his or her right to a jury trial
is reviewed for clear error. People v Leonard, 224 Mich App 569, 595; 569 NW2d 663 (1997).
We have reviewed the record of defendant’s waiver and find that under the standards for
waiver of trial by jury set forth by this Court in People v James (After Remand), 192 Mich App
568, 570-571; 481 NW2d 715 (1992), and People v Shields, 200 Mich App 554, 560-561; 504
NW2d 711(1993), defendant’s waiver was made knowingly, intelligently, and voluntarily, and
the court did not clearly err by denying defendant’s untimely request to withdraw such waiver on
the day of trial.
Defendant further contends that her attorney was ineffective for failing to sufficiently
advise her regarding the meaning of her waiver. Allegations pertaining to ineffective assistance
of counsel must first be heard by the trial court to establish a record of the facts pertaining to
such allegations. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). In cases such as
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this, where a Ginther hearing has not been held, review by this Court is limited to mistakes
apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
The record is devoid of any information regarding what defendant’s counsel explained to
her about waiving the right to trial by jury. Thus, defendant has not established an ineffective
assistance of counsel claim. Moreover, a remand for a Ginther hearing would be fruitless where
the record establishes that defendant knowingly, voluntarily and understandingly waived her right
to trial by jury. People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997); People v
Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997).
Next, defendant argues that there was insufficient evidence to support defendant’s
conviction for felonious assault and that the court erred by denying defendant’s motion for
directed verdict of acquittal. Alternatively, defendant contends that the verdict was against the
great weight of the evidence. As part of her arguments, defendant contends that a cane is not a
dangerous weapon.
In reviewing the sufficiency of the evidence in an appeal from a bench trial, we must
determine whether, when viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could find the essential elements of the crime proven beyond a reasonable
doubt. People v Lewis, 178 Mich App 464, 467; 444 NW2d 194 (1989).
Similarly, when reviewing a trial court’s denial of a motion for directed verdict, we
review “the record de novo and consider the evidence presented by the prosecution in the light
most favorable to the prosecution to determine whether a rational trier of fact could find that the
essential elements of the crime charged were proved beyond a reasonable doubt.” People v
Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999).
A trial court’s decision on a motion for new trial based on the great weight of the
evidence is reviewed for an abuse of discretion, and “a trial court may grant a motion for a new
trial based on the great weight of the evidence only if the evidence preponderates heavily against
the verdict so that it would be a miscarriage of justice to allow the verdict to stand.” People v
Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998). In reviewing the motion, an appellate
court may not resolve issues of credibility. Id.
There was ample evidence produced at trial to support defendant’s conviction. Janice
Harvell testified that on the day of the incident, she attempted to move the truck which was
blocking the driveway, but tools were blocking the drive. Wheatley moved the tools, and Harvell
pulled the truck out of the way; she also apologized to defendant. There was testimony that
despite Harvell’s apology and attempt to move the truck, defendant then called Harvell a series of
vulgar names. The evidence further showed that defendant went after Harvell with her four-toed
metal cane walker, striking her on the head. Wheatley positioned himself between the two
woman and attempted to block the blows to Harvell; Wheatley was struck in the arm as a result.
Wheatley did not hit defendant. Defendant’s mother shouted “stop, Paulette” to defendant from
the car. Harvell and Wheatley sought treatment at a hospital and reported the incident to the
police. A police officer testified that he observed a “large swollen bruse” on Wheatley’s arm.
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Additionally, Wheatley testified to the effect that defendant instigated the confrontations
and that Harvell had said or done nothing to provoke defendant. According to Wheatley,
defendant went after Harvell with her cane “cocked” in the air. Wheatley said “you ain’t going to
hit Ms. Harvell with the cane” and blocked the cane. Wheatley may have had a tool in his hands,
but he did not threaten defendant with it. Wheatley did not strike back or say anything during the
attack.
The elements of the offense were proven beyond a reasonable doubt. The elements of
felonious assault are: (1) an assault, (2) with a dangerous weapon, and (3) with the intent to
injure or place the victim in reasonable apprehension of an immediate battery. People v Avant,
235 Mich App 499, 505; 597 NW2d 864 (1999). Furthermore, it is the manner in which an
instrumentality is used and the nature of the act which determines whether an instrumentality is
“dangerous” within the purview of the statute proscribing assault with a dangerous weapon.
People v Kay, 121 Mich App 438, 444; 328 NW2d 424 (1982). Thus, defendant’s unsupported
assertion that a cane simply cannot constitute a dangerous weapon is not well taken on the
victims’ testimony.
The trial court found the victims’ testimony more credible than that of defendant, and this
Court will not interfere with that conclusion. Questions of credibility and intent should be left to
the trier of fact. Avant, supra, 235 Mich App at 506. Furthermore, all conflicts in the evidence
must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569
NW2d 641 (1997). There was sufficient evidence in this case to support each of the elements of
the offense, including the court’s finding that defendant did in fact use the cane as a weapon and
the finding that defendant was not merely acting in self-defense.
Based upon a de novo review of the same evidence described above and considering the
evidence presented by the prosecution in a light most favorable to the prosecution, we conclude
that a rational trier of fact could find that the essential elements of the crime charged were proven
beyond a reasonable doubt. See Mayhew, supra, 236 Mich App at 124. Accordingly,
defendant’s motion for a directed verdict was properly denied.
Moreover, in this case, the evidence did not “preponderate[] heavily against the verdict,”
nor would it be “a miscarriage of justice to allow the verdict to stand.” Gadomski, supra, 232
Mich App at 28. Thus, defendant is not entitled to a new trial on the ground that the verdict was
against the great weight of the evidence.
Finally, defendant argues that counsel was ineffective for failing to object to the
admission of alleged hearsay testimony, specifically regarding what defendant’s mother had said,
and by failing to investigate and produce a helpful known res gestae witness, namely, defendant’s
mother.
In order to establish that defendant’s right to effective assistance of counsel is sufficient
to justify reversal of an otherwise valid conviction, defendant must show: (1) that counsel’s
representation fell below an objective standard of reasonableness, (2) that there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different,
and (3) that the result of the proceeding was fundamentally unfair or unreliable. Mitchell, supra,
454 Mich at 156; Messenger, supra, 221 Mich App at 181. Judicial scrutiny of trial counsel’s
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performance must be highly deferential. Strickland v Washington, 466 US 668; 104 S Ct 2052;
80 L Ed 2d 674 (1984). Defendant must overcome the presumption that the challenged action or
omission could conceivably be considered sound trial strategy under the circumstances. Id. at
694-695.
Defendant claims that counsel was ineffective for failing to object to two specific
portions of testimony regarding a statement her mother made during the physical altercation. We
disagree.
According to both Harvell and Wheatley, defendant’s mother yelled at defendant to
“stop” during a startling event or condition, that is, during the physical confrontation that
occurred between Harvell and defendant. The statement which both victims testified to was
admissible as an excited utterance under MRE 803(2), which allows statements otherwise
excludable as hearsay as evidence. Thus, defendant has not shown how counsel’s failure to
object to the statement constitutes ineffective assistance.
Next, defendant asserts that counsel was ineffective for failing to “investigate and
produce” defendant’s mother. According to defendant, counsel failed to explain to the court that
her mother was hospitalized and could not appear. At sentencing, defendant’s retained counsel
informally requested a Ginther hearing and moved for a new trial, which was denied.
As the trial court explained, this trial was adjourned on two occasions in order to
accommodate witnesses. Trial was adjourned for almost three weeks so that defendant’s mother
could testify and defendant was directed to have her mother appear on July 10, 1998. When the
July 10 trial date arrived, defendant asked the court to adjourn the matter a third time because
defendant, displeased with her appointed counsel, had allegedly retained another attorney and
wanted her new attorney to replace her appointed counsel. Having received no notice that a new
attorney had been retained, and having adjourned the trial on two previous occasions, the court
denied defendant’s last-minute request to postpone trial again. Defendant did not indicate that
her mother would be unavailable to testify, despite the fact that the court specifically stated that
trial had been adjourned so that defendant’s mother could testify on that date. In fact, defendant
said nothing whatsoever about her mother even though she carried on a relatively long discussion
with the court about her reasons for wanting the third adjournment. The court specifically asked
defense counsel, “[D]o you have your witness present, sir?” to which counsel simply responded
“[n]o, Your Honor, but the defendant will be testifying.” Immediately thereafter defendant spoke
directly with the court and made no mention of her mother or of her current contention that her
mother was hospitalized. At sentencing, the court stated that no reason had been put forth for the
witness’ absence; nor had anyone asked for the court’s assistance in producing the witness.
Neither defendant nor her counsel ever indicated that the mother was “being a hostile witness” or
that “she was unavailing herself to court.”
Because a Ginther hearing has not taken place, this Court’s review is limited to a review
of the record. Especially in light of defendant’s curious failure to even mention her mother’s
absence during her dialogue with the court, the record, which is wanting of any evidence
regarding why the mother did not appear to testify or to what she would have testified, does not
support defendant’ claim of ineffective assistance of counsel. As in Hurst, supra, 205 Mich App
at 641, the record is devoid “of information that might help this Court review the possible
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effectiveness” of a strategy which utilized this witness’ testimony. Thus, defendant has not
overcome the presumption that counsel’s failure to produce the mother was sound trial strategy,
and a remand is not in order. Accordingly, both of defendant’s ineffective assistance of counsel
claims fail.
Affirmed.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
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