PEOPLE OF MI V RICHARD RIVERA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 13, 2001
Plaintiff-Appellant,
v
No. 228988
Wayne Circuit Court
LC No. 94-002448
RICHARD RIVERA,
Defendant-Appellee.
Before: Sawyer, P.J., and Griffin and O’Connell, JJ.
PER CURIAM.
The prosecutor appeals by leave granted the trial court’s order granting defendant relief
from judgment pursuant to MCR 6.508. We reverse.
At approximately 8:00 p.m. on February 16, 1994, officers from the Detroit Police
Department were preparing to execute a search warrant at 2514 Woodmere in Detroit. While
conducting surveillance on the home, the police observed defendant, wearing a San Jose Sharks
jacket, leave the home and get into a gray Lincoln Continental. The police proceeded to follow
defendant to a nearby address on Waterman in Detroit. After five minutes defendant returned to
his vehicle and drove back to the home on Woodmere. Ten minutes later, when the police
knocked on the door of the Woodmere home to announce their presence, defendant was
apprehended attempting to exit through the back door of the house. When the police searched
the premises, they found a paper bag containing a kilo of cocaine underneath the San Jose Sharks
jacket and two bags of marijuana in a bread basket in the kitchen.1 In an upstairs bedroom the
police also discovered miscellaneous paperwork in defendant’s name, along with a list of names
and amounts owing and a scale. Subsequent fingerprint analysis revealed defendant’s fingerprint
on the paper bag containing cocaine. At trial, the prosecutor also presented the testimony of
Rafael Fernandez, who testified that in February 1994 defendant gave him $19,000 toward the
purchase of a kilo of cocaine.2 Fernandez further indicated that on February 16, 1994, he met
1
Three other adults and a child were also in the home when police executed the search warrant.
Defendant later acknowledged that the marijuana belonged to him.
2
According to Fernandez, defendant was to pay him the remaining $6,000 toward the total
purchase price of $25,000 at a later date.
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defendant in an apartment complex on Waterman in Detroit where he gave defendant a kilo of
cocaine.
On February 2, 1996, following a five-day trial, a jury convicted defendant of possession
with intent to deliver over 650 grams of cocaine, MCL 333.7401(2)(a)(i), and possession of
marijuana, MCL 333.7403(2)(d). The trial court sentenced defendant to the mandatory term of
life imprisonment for the possession with intent to deliver conviction and thirty days to one year
imprisonment for the possession of marijuana conviction. This Court affirmed defendant’s
convictions and our Supreme Court denied leave to appeal. People v Rivera, unpublished
opinion per curiam of the Court of Appeals, issued October 3, 1997 (Docket No. 193560), lv den
458 Mich 873 (1998). Defendant filed a motion for relief from judgment in 1999, which the trial
court granted on July 20, 2000.
The thrust of the prosecutor’s argument on appeal is that the trial court erred in granting
defendant relief from judgment because defendant did not fulfill the good cause requirement set
forth in MCR 6.508(D), which provides in pertinent part:
The defendant has the burden of establishing entitlement to the relief
requested. The court may not grant relief to the defendant if the motion
***
(3) alleges grounds for relief, other than jurisdictional defects, which
could have been raised on appeal from the conviction and sentence or in a prior
motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim
for relief. As used in this subrule, “actual prejudice” means that,
(i) in a conviction following a trial, but for the alleged error, the defendant
would have had a reasonably likely chance of acquittal . . . . (emphasis supplied).
We review a trial court’s grant of a motion for relief from judgment for an abuse of
discretion. People v Ulman, 244 Mich App 500, 508; 625 NW2d 429 (2001).3 The trial court
granted relief from judgment on the basis of her findings that the court presiding over
defendant’s trial erred in refusing to instruct the jury on the lesser included offense of possession
of cocaine. The trial court further found that defendant received ineffective assistance of counsel
3
An abuse of discretion occurs when a decision is “so violative of fact and logic that it evidences
a perversity of will, a defiance of judgment, or an exercise of passion or bias.” People v Torres
(On Remand), 222 Mich App 411, 415; 564 NW2d 149 (1997) (citation omitted).
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because trial counsel did not request the instruction or object to its omission. Similarly, the court
found that appellate counsel was ineffective for failing to raise the issue on appeal. The trial
court also concluded that defendant’s right against self-incrimination was violated by the
admission of evidence concerning defendant’s refusal to answer certain questions during
questioning by the police, and made similar findings of ineffective assistance of counsel in this
regard.
The prosecutor first contends that the trial court erred in basing its decision to grant relief
from judgment on the omission of the simple possession instruction because defendant forfeited
this issue by expressing his satisfaction with the jury instructions. The prosecutor further
observes that defendant did not raise this issue on appeal. In contrast, defendant argues that the
ineffective assistance of trial and appellate counsel excuses defendant’s failure to raise the issue
on appeal or in a prior motion.
As a preliminary matter, we agree with the prosecutor that defendant waived any
challenge to the jury instructions when trial counsel expressed satisfaction with the instructions
as given. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).4 Trial counsel’s waiver
of any error therefore precluded defendant from raising the issue on appeal. Id. at 209. In the
same vein, we do not share the trial court’s view that trial counsel’s waiver of the issue and
appellate counsel’s failure to raise the issue on appeal amounted to ineffective assistance of
counsel. Consequently, the trial court erred in concluding that defendant had good cause for not
raising the issue in the trial court and on appeal. Good cause as contemplated by MCR
6.508(D)(3)(a) may be established by proving the ineffective assistance of trial and appellate
counsel. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995) (Boyle, J.). Because a
Ginther5 hearing was not held on this issue6 our review is limited to errors apparent from the
record. People v Knapp, 244 Mich App 361, 385; 624 NW2d 227 (2001).
Defendant does not dispute that this issue was not properly raised in the trial court or on
appeal. Defendant claims (1) that appellate counsel was ineffective for failing to raise this issue
on appeal, and (2) that trial counsel was ineffective for failing to request the disputed jury
4
Notably, halfway through the trial court’s instructions to the jury, when the jury had left the
courtroom, the trial court inquired whether both sides were satisfied with the instructions as
given. Trial counsel replied “I’m satisfied with the thoroughness, and indeed the manner of
delivery, along with the effectiveness of your art of persuasion. It’s going across quite well.” At
the conclusion of the instructions, trial counsel once again stated his satisfaction with the
instructions as given.
5
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
6
A review of the record reveals that after defendant filed a motion alleging ineffective assistance
of counsel, this Court remanded for an evidentiary hearing on the issue whether counsel failed to
properly raise the defense of entrapment at trial. People v Rivera, unpublished order of the Court
of Appeals, entered February 12, 1997 (Docket No. 193560). However, because the trial court
subsequently determined that the witness who testified against defendant was not working with
the authorities at the time of defendant’s arrest, the trial court declined to hold a hearing on the
issue.
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instruction. “To excuse this double procedural default defendant must ‘show that [trial]
counsel’s performance fell below an objective standard of reasonableness, and that the
representation so prejudiced . . . defendant as to deprive him of a fair trial.’ ” Reed, supra at 390,
quoting People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994); see also People v Toma,
462 Mich 281, 302; 613 NW2d 694 (2000). To satisfy the prejudice requirement, defendant
must show a reasonable probability that, but for counsel’s errors, the outcome of the proceedings
would have been different. Toma, supra at 302-303.
In evaluating claims of ineffective assistance of counsel, we recognize the well-settled
principle that counsel’s actions are presumed to be the product of sound trial strategy. Id. at 302;
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Nor will we second-guess
counsel’s performance with the benefit of hindsight. Id. at 76-77. This same deferential standard
of review is applicable to claims alleging ineffective assistance of appellate counsel. People v
Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
In the present appeal, defendant has failed to overcome the presumption that trial
counsel’s failure to request an instruction on the lesser included offense was a legitimate strategic
tactic. Toma, supra at 302. Initially, we note that counsel’s decisions regarding instructions on
lesser included offenses are generally considered matters of trial strategy. People v Sardy, 216
Mich App 111, 116; 549 NW2d 23 (1996); People v Robinson, 154 Mich App 92, 94; 397 NW2d
229 (1986). A key factor underlying the defense theory at trial was that defendant, although
present in the home where the police executed the search warrant, did not possess the cocaine
seized. Defendant further disclaimed any participation in the packaging or acquisition of the
cocaine. On this record, it is clear that trial counsel’s decision to not seek an instruction on the
lesser included offense of possession of cocaine was strategically motivated, because such an
instruction would have been at odds with defendant’s theory of the case.7
Likewise, we are not persuaded that defendant was deprived of the effective assistance of
appellate counsel. In our view, appellate counsel’s failure to raise the jury instruction issue on
appeal is not indicative of deficient performance given trial counsel’s clear waiver of the issue in
the lower court. Carter, supra at 209.8 Further, appellate counsel may have correctly discerned
that trial counsel’s decision regarding the jury instruction was a matter of trial strategy. In any
event, because defendant did not demonstrate good cause for failing to raise the jury instruction
issue on appeal, the trial court abused its discretion in granting defendant relief from judgment on
this basis.
7
In support of his motion for relief from judgment in the trial court, defendant appended the July
20, 1999 affidavit of his trial counsel. In the affidavit, executed three years after trial, trial
counsel indicated that his failure to seek an instruction on the lesser included offense was not the
product of trial strategy. The presentation of this affidavit is not dispositive in our inquiry
however, because “[t]he reasonableness of counsel’s performance is to be evaluated from
counsel’s perspective at the time of the alleged error and in light of all the circumstances. . . .”
Reed, supra at 391, quoting Kimmelman v Morrison, 477 US 365, 381; 106 S Ct 2574; 91 L Ed
2d 305 (1986) (emphasis supplied).
8
“[W]aiver extinguishes any error and precludes [the] defendant from raising it on appeal.”
Carter, supra at 209.
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The prosecutor also contends that the trial court abused its discretion in holding that relief
from judgment was warranted because evidence concerning defendant’s invocation of his right to
remain silent was admitted at trial. During the prosecutor’s direct examination of the officer who
questioned defendant after he was given his Miranda9 rights, the following colloquy occurred:
Q.
[C]an you read for us, please, starting with the first question, the exact
question and answer format as it was said, and as you took it down, of Mr.
Rivera?
A.
The first question I asked Mr. Rivera is: “What were you doing at 2514
Woodmere when the police arrived?” His answer is: “Smoking marijuana and
drinking beer.” Ques—do you want me to go straight through, Mr. Rollstin?
Q.
Please do.
A.
Question number two was: “Where do you live?” His answer was:
“Two, zero, one, nine Cabot.” Question number three: “Do you ever spend the
night at 2514 Woodmere?” Answer: “Yes, quite frequently.” The next question
is: “Why did you run when you heard the police?” His answer: “I didn’t run.”
Question: “How much cocaine did you have at 2514 Woodmere?” His answer:
“I didn’t know about any cocaine. To tell the truth, I’d rather put no comment.”
Next question: “You didn’t see anybody enter 2514 Woodmere with cocaine?”
His answer was: “No, sir.” The next question: “Whose marijuana was found at
2514 Woodmere?” His answer: “It was mine.” The next question: “Who drives
the Lincoln rented from Budget?” His answer: “Connie was driving it. I believe
she drove it over here.” Question: “Do you sell cocaine?” Answer: “No, sir.”
Next question: “Why don’t you live with your wife?” Answer: “I have no other
statement to make.”
Q.
At that point, what did you do, in terms of making—or continuing to
question Mr. Rivera?
A.
I stopped asking questions at his request.10
Defendant does not dispute that he failed to preserve this issue by raising a timely
objection, nor was it raised on direct appeal. However, defendant maintains that he has
demonstrated good cause sufficient to excuse his failure to raise the issue on appeal because he
was subject to ineffective assistance of counsel.
A defendant’s post-Miranda silence is generally not admissible at trial “because it would
violate the right to due process to so impeach a defendant who may have been relying on the
9
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
10
Similarly, in his closing address to the jury, the prosecutor made reference to defendant’s
refusal to answer certain questions posed by the police officer.
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governmental assurance that his silence would not be used against him.” People v Sholl, 453
Mich 730, 737; 556 NW2d 851 (1996), citing Doyle v Ohio, 426 US 610, 617-618; 96 S Ct 2240;
49 L Ed 2d 91 (1976). Further, it is improper for the prosecutor to comment on the defendant’s
silence where, following Miranda warnings, the defendant answers several questions, but
subsequently invokes his right to remain silent with regard to others. People v McReavy, 436
Mich 197, 219 n 23; 462 NW2d 1 (1990).
After a thorough review of the record, we are unable to conclude that trial counsel’s
performance in relation to the admission of this evidence was objectively unreasonable.
Defendant once again has failed to overcome the presumption that counsel’s actions are
reasonably attributed to trial strategy. Toma, supra at 302. In a slightly different context, our
Supreme Court has observed that trial counsel’s decision regarding whether or not to raise an
objection is considered “a quintessential example of trial strategy.” Reed, supra at 400.
That trial counsel’s decision to not object was a matter of trial strategy is best
demonstrated by a review of his conduct in context. Specifically, during cross-examination of
the police officer, trial counsel elicited testimony regarding defendant’s refusal to answer specific
questions posed by the police officer. Trial counsel therefore elicited the same information that
was initially brought forth during direct examination of the police officer. It appears that trial
counsel may have refrained from objecting to the admission of this evidence during direct
examination because he planned to vigorously attack the police officer’s recitation of defendant’s
statement on cross-examination.11 Trial counsel may also have decided not to object to the
prosecutor’s reference to defendant’s silence because he did not want to risk drawing the jury’s
attention to the matter. See Reed, supra at 400. Whatever trial counsel’s motivation may have
been, it is not for this Court to second-guess matters of trial strategy with the benefit of hindsight,
even if a decision later proves to be incorrect. Rockey, supra at 76-77; People v Rice (On
Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).12
Moreover, we are not persuaded that appellate counsel’s failure to raise this unpreserved
issue on appeal amounted to ineffective assistance of counsel. Appellate counsel may have also
correctly discerned that trial counsel’s failure to object to the admission of the evidence was the
product of trial strategy. Further, defendant has failed to rebut the presumption that “appellate
counsel’s decision regarding which claims to pursue was sound appellate strategy.” Hurst, supra
at 642; see also Reed, supra at 391 (“[A]ppellate counsel’s decision to winnow out weaker
arguments and focus on those more likely to prevail is not evidence of ineffective assistance.”)
(citation omitted).
11
Trial counsel may also have concluded that the admission of testimony of defendant’s
invocation of his right to silence in reference to questioning about his marital living arrangements
was not harmful, given that it was not a central issue at trial. See e.g. Sholl, supra at 738 n 5.
12
See also People v Hackett, 460 Mich 202, 217-218; 596 NW2d 107 (1999) (holding that
prosecutor’s reference to the defendant’s nonconstitutionally protected silence was harmless error
where the defendant, during cross-examination, used the silence in a “rehabilitative way.”).
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Additionally, the trial court’s grant of relief from judgment was improper because
defendant did not meet his burden of demonstrating “actual prejudice from the alleged
irregularities that support the claim for relief.” MCR 6.508(D)(3)(b). As set forth in MCR
6.508(D)(3)(b)(i), actual prejudice “means that in a conviction following a trial, but for the
alleged error, the defendant would have had a reasonably likely chance of acquittal.” We are
confident that no such “reasonably likely chance of acquittal” existed in the instant case in spite
of the alleged errors. The prosecutor brought forth ample evidence to convince the jury of
defendant’s guilt. This evidence included the incriminating surveillance of defendant’s activities
by the police, Fernandez’ testimony describing defendant’s purchase of a kilo of cocaine,
fingerprint analysis which revealed defendant’s fingerprint on the package of cocaine, and the
discovery of equipment typically used in the distribution of drugs with defendant’s personal
items. On this record, we are not persuaded that an acquittal of the charged offenses was
reasonably likely based on the alleged errors.
Reversed
/s/ David H. Sawyer
/s/ Richard Allen Griffin
/s/ Peter D. O’Connell
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