PEOPLE OF MI V CLEO P GILES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 27, 2001
Plaintiff-Appellant,
V
No. 223414
Wayne Circuit Court
LC No. 89-004522
CLEO P. GILES,
Defendant-Appellee.
Before: K.F. Kelly, P.J., and Hood and Zahra, JJ.
PER CURIAM.
The prosecution appeals by leave granted from an order granting defendant relief from
his convictions of first-degree murder, MCL 750.316, assault with intent to commit murder,
MCL 750.83, assault with intent to commit armed robbery, MCL 750.89, and possession of a
firearm during the commission of a felony, MCL 750.227b. The trial court granted defendant a
new trial on the basis of its finding that defendant was denied the effective assistance of counsel
at trial. We reverse.
I. FACTS
Defendant testified during his bench trial that he shot George Young during the course of
a drug transaction. James Lovejoy also suffered six gunshot wounds during the incident. Young
died at the scene, but Lovejoy recovered from his wounds. Defendant suffered two gunshot
wounds during the exchange of gunfire. While hospitalized for his injuries and under police
guard, defendant made a statement to the police.1 In his statement, defendant claimed that two
men had “pulled me over” and, when defendant tried to run away, one of the men grabbed him
and shot him. In a subsequent struggle, defendant took a gun out of the other car and shot the
man.
Defendant retained Charles Campbell as counsel shortly before his trial. Although
Campbell entered his appearance four days before trial and had a conflicting trial scheduled for
defendant’s trial date, he failed to request an adjournment. Instead, Neil Leithauser stood in for
Campbell as defendant’s trial counsel over defendant’s objection. Although the trial court
1
Because defendant was unable to move his hands, he did not sign his statement of rights form
or his statement, as reduced to writing by the interrogating officer.
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expressed anger that Campbell had entered his appearance and failed to request an adjournment
when he had a scheduling conflict, the court permitted Leithauser to proceed after Leithauser
represented he was familiar with the case and prepared to go forward with the trial. Leithauser
did not challenge the admissibility of defendant’s statement to the police and it was admitted into
evidence at defendant’s trial. Defendant was convicted following a bench trial.
II. PROCEDURAL HISTORY
Defendant’s first appeal of his convictions, filed May 25, 1990, was dismissed for lack of
progress. Thereafter, defendant filed a motion for relief from the trial court’s judgment in
propria persona before the Detroit Recorder’s Court. The Recorder’s Court denied defendant’s
motion and, on June 26, 1996, defendant filed an application for leave to appeal the Recorder’s
Court order. In lieu of granting defendant leave to appeal, this Court remanded the case to the
circuit court for appointment of counsel to file a motion for relief from the trial court’s judgment
pursuant to MCR 6.500 et seq. On August 6, 1999, defendant filed a motion for relief from his
conviction. The trial court granted defendant’s motion, finding that defendant had good cause
for failing to raise the issues previously because his appellate counsel had failed to pursue his
case on appeal, causing it to be dismissed for lack of progress. The trial court also concluded
that defendant’s trial counsel committed errors when he (1) failed to request a Walker2 hearing
challenging the admissibility of defendant’s statement, and (2) failed to request an adjournment.
The court concluded that defendant’s counsel’s error entitled defendant to a new trial. The
prosecution now appeals by leave granted.
III. STANDARD OF REVIEW
A defendant is entitled to post-appeal relief from a judgment if he can establish
entitlement to the relief, demonstrate good cause for any failure to raise the issues where they
could have been raised in a prior appeal, and establish that the defendant suffered actual
prejudice from the alleged irregularities supporting the claim for relief. MCR 6.508(D). To
demonstrate “actual prejudice” in a trial, a defendant must show that either “but for the alleged
error, the defendant would have had a reasonably likely chance of acquittal,” or “the irregularity
was so offensive to the maintenance of a sound judicial process that the conviction should not be
allowed to stand regardless of its effect on the outcome of the case.” MCR 6.508(D)(3)(b)(i) and
(iii). We review claims for relief from judgment for an abuse of discretion.
The prosecution contends that the trial court abused its discretion when it granted
defendant a new trial on the basis of ineffective assistance of counsel. In particular, the
prosecution contends that defendant failed to establish that there was any “irregularity” in his
trial because the record reveals that defendant’s trial counsel was prepared for trial and that the
decision not to move for a Walker hearing was a matter of trial strategy.3 In general, we review a
2
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
3
The prosecution does not challenge the trial court’s conclusion that defendant had good cause
for his failure to raise the issue of ineffective assistance in a prior appeal. MCR 6.508(D)(3).
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trial court’s decision to grant a new trial for an abuse of discretion. People v Mechura, 205 Mich
App 481, 483; 517 NW2d 797 (1994); People v Davis, 199 Mich App 502, 515; 503 NW2d 457
(1993). Where the reasons given by the trial court for granting a new trial are inadequate or not
legally recognized, the trial court abused its discretion. People v Leonard, 224 Mich App 569,
580; 569 NW2d 663 (1997); People v Bart (On Remand), 220 Mich App 1, 15; 558 NW2d 449
(1996). When reviewing a claim of ineffective assistance of counsel, effective assistance is
presumed, and a “defendant bears a heavy burden of proving otherwise.” People v Noble, 238
Mich App 647, 661-662; 608 NW2d 123 (1999). A defendant must not only demonstrate that
counsel’s performance was deficient, but also that he was prejudiced by the deficiency. Id.
Accordingly, a defendant must show that, but for his counsel’s mistake, the factfinder would not
have convicted him. People v Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994); People v
Snider, 239 Mich App 393, 424; 608 NW2d 502 (2000).
In order to establish that Leithauser was ineffective for lack of preparation, and thus for
his failure to request an adjournment, defendant must demonstrate that Leithauser’s failure to
prepare for trial resulted in counsel’s failure to present a defense or challenge to the evidence that
might have made a difference in the outcome of the trial. See People v Stanaway, 446 Mich 643,
687-688; 521 NW2d 557 (1994); People v Caballero, 184 Mich App 636, 640, 642; 459 NW2d
80 (1990). The mere fact that Leithauser may have been ill prepared is irrelevant if the lack of
preparation did not result in an error that prejudiced defendant. See People v Truong, 218 Mich
App 325, 339; 553 NW2d 692 (1996); Caballero, supra at 642.
IV. ANALYSIS
The only substantive error that defendant argues caused him prejudice was Leithauser’s
failure to challenge defendant’s statement by way of a Walker hearing. The prosecution
contends that it was a matter of trial strategy for Leithauser to choose to not make a losing
motion to suppress defendant’s statement to police. This Court will not substitute its judgment
for a defendant’s trial counsel regarding matters of trial strategy. People v Rice (On Remand),
235 Mich App 429, 445; 597 NW2d 843 (1999). Further, the prosecution contends that
defendant is not entitled to relief from judgment, even if the failure to request a Walker hearing
was not a matter of trial strategy, because the failure to suppress defendant’s statement to police
did not result in prejudice to defendant. We shall assume, without deciding, that there existed no
sound trial strategy for defense counsel’s failure to move for a Walker hearing. We nonetheless
conclude that this failure by defense counsel did not result in error that actually prejudiced
defendant.
The trial court noted other compelling reasons to disregard defendant’s explanation that
he only intended to purchase drugs from Lovejoy and had no intention of robbing or shooting
Lovejoy and Young. The court did not believe defendant’s claim that he shot Young while
Young was lying on top of him because the autopsy report refuted close-range firing. The court
further found improbable the theory that defendant and his brother, armed with an assault rifle
and handgun respectively, merely intended an inconspicuous drug buy. The court specified that
it found Lovejoy’s account of the events most credible. Moreover, the court observed that the
closed briefcase, which defendant testified contained $60,000, lay empty at the scene. The court
stated:
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It is significant to the court, as fact finder, that anyone would have removed such
a large sum of money from the briefcase and left it at the scene when it would
have been far less conspicuous to take the briefcase with the money in it. The
court finds the testimony of the defendant, Giles, to the effect that the briefcase
contained $60,000.00 cash to be unworthy of credit, and rejects it.
The court made clear that “[t]here were numerous reasons to reject Giles testimony,” and
determined that defendant intended to rob Lovejoy and Young when he went to the arranged
meeting and formed the intent to kill them in the course of the robbery. We conclude that the
empty briefcase found at the scene was extremely persuasive circumstantial evidence that
defendant carried an assault rifle because he planned to rob Lovejoy and Young, then used the
gun when the robbery went badly. Because of the circumstantial evidence of defendant’s guilt
and his otherwise undermined credibility, we cannot conclude that the admission of defendant’s
statement caused him any actual prejudice. Simply put, even if defendant’s statement was not
admitted during the trial, the balance of trial proofs left defendant with no reasonable likelihood
of acquittal.4
Moreover, we have thoroughly reviewed the trial transcripts and we find no merit in
defendant’s general allegation that Leithauser failed to “test the prosecution’s case.” It appears
that defendant’s trial counsel made appropriate objections throughout the record. Defendant
suggests no basis on which his trial counsel could have challenged the gun residue testing.
Therefore, this Court must presume that counsel’s stipulation to the residue analysis was a matter
of trial strategy. Rice, supra at 445. Because defendant was not denied the effective assistance
of counsel by Leithauser’s failure to challenge defendant’s statement, and neither defendant nor
the trial court identify any other error resulting from counsel’s lack of preparation, the trial
court’s decision to grant defendant a new trial was not supported by adequate reasons and,
therefore, was an abuse of discretion. Leonard, supra; Bart, supra.5
4
Nor do we conclude that the irregularity alleged by defendant was so offensive to the
maintenance of sound judicial process that the conviction must be vacated.
5
Defendant argues, for the first time on appeal, that he was denied his constitutional right to
have counsel of his own choosing. We have discretion to review unpreserved constitutional
issues. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People v Grant, 445
Mich 535, 547; 520 NW2d 123 (1994). However, this Court will not consider issues raised in a
reply brief on appeal, where defendant failed to file a cross-appeal. MCR 7.212(G); Check
Reporting Services, Inc v Michigan Nat’l Bank, 191 Mich App 614, 628; 478 NW2d 893 (1991).
Furthermore, the issue is also precluded from review because it is outside the scope of the
prosecution’s application for leave to appeal. MCR 7.205(D)(4). Therefore, the issue of whether
defendant was denied his right to counsel of his own choosing is not properly before this Court.
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Reversed.
Judge Kelly concurs in result only.
/s/ Harold Hood
/s/ Brian K. Zahra
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