PEOPLE OF MI V VINCENT CLAUDE ELLIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 23, 2002
Plaintiff-Appellee,
v
No. 230943
Wayne Circuit Court
LC No. 99-011813
VINCENT CLAUDE ELLIS,
Defendant-Appellant.
Before: White, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
Defendant was convicted after a bench trial of assault with intent to do great bodily harm,
MCL 750.84, and felony-firearm, MCL 750.227b. He was sentenced to 3½ to 10 years for the
assault, and a mandatory consecutive two-year term for the felony-firearm conviction. The
judgment of sentence was thereafter amended to order the sentence be served consecutively to an
existing sentence. Defendant appeals as of right, and we affirm.
Defendant first argues that his waiver of his right to a jury trial was invalid because it was
not voluntary, intelligent and understandingly made. We disagree. Whether the trial court
properly determined that a defendant validly waived his right to a jury trial is reviewed for clear
error. People v Taylor, 245 Mich App 293, 305 n 2; 628 NW2d 55 (2001); People v Leonard,
224 Mich App 569, 595; 569 NW2d 663 (1998). However, to the extent the issue may involve
an interpretation of the law, or application of the constitutional standard to uncontested or
properly determined facts, appellate review is de novo. People v LeBlanc, ___ Mich ___; ___
NW2d ___ (Docket No. 118774, issued 3/12/02) slip op at 4-5; People v Attebury, 463 Mich
662, 668; 624 NW2d 912 (2001).
The written waiver of jury trial signed by defendant in this case exceeded the
requirements of MCL 763.3(1). Not only did the written waiver contain the substance of the
required statutory language, but it also contained the attestation of defendant that he executed the
waiver after “having an opportunity to consult with counsel.” Further, the waiver contains the
following statement above the signature of defendant’s counsel: “I have advised the above named
defendant of his constitutional right to a trial by jury.” An attorney’s signature constitutes a
certification that he or she has read the document and that, to the best of his or her knowledge,
information, and belief formed after reasonable inquiry, the document is well grounded in fact.
MCR 2.114(D).
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Defendant’s waiver of jury trial in this case also fulfilled the requirements of MCL
763.3(2), which provides, in pertinent part, that “the waiver of trial by jury shall be made in open
court after the defendant has been arraigned and has had opportunity to consult with legal
counsel.” Here, defendant was represented by counsel and acknowledged his waiver in open
court with counsel present. See People v Pasley, 419 Mich 297, 302-303; 353 NW2d 440
(1984); People v Braxton, 91 Mich App 689, 690-691; 283 NW2d 829 (1979). Thus, the record
demonstrates compliance with MCR 6.402(A), which provides, in part, “The court may not
accept a waiver of trial by jury until after the defendant [] has been offered an opportunity to
consult with a lawyer.”
Further, the record confirms that the trial court complied with MCR 6.402(B), which
provides:
Before accepting a waiver, the court must advise the defendant in open court of
the constitutional right to trial by jury. The court must also ascertain, by
addressing the defendant personally, that the defendant understands the right and
that the defendant voluntarily chooses to give up that right and to be tried by the
court. A verbatim record must be made of the waiver proceeding.
In the present case, the trial court inquired of defendant as follows:
The Court:
What is your full name?
Defendant:
Vincent Ellis.
The Court:
Raise your right hand for me. Do you solemnly swear or affirm
that the testimony you will give in these proceedings will be the truth, so help
you God?
Defendant:
Yes.
The Court:
How old are you?
Defendant:
Thirty-six.
The Court:
How far have you gone in school?
Defendant:
I got a GED.
The Court:
You understand that you have a constitutional right to have a jury
trial, is that correct?
Defendant:
Yes, sir.
The Court:
Am I correct in understanding that you do not want a jury to decide
this case, but you would rather have a judge decide it?
Defendant:
Yes.
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The Court:
Jury?
Is that your signature on that document entitled Waiver of Trial by
Defendant:
Yes.
The Court:
Did you read it and understand it?
Defendant:
Yes.
The Court:
I will accept the document and I will place it in the court file.
The record in this case establishes a voluntary, intelligent and understanding waiver by
defendant of his constitutional right to trial by jury. Defendant’s reliance on federal appellate
case law is misplaced because the holdings of the federal cases cited are based on supervisory
authority, not on constitutional requirement. United States v Rodriquez, 888 F2d 519, 526-527
(CA 7, 1989); United States v Martin, 704 F2d 267, 273-274 (CA 6, 1983); United States v
Delgado, 635 F2d 889, 890 (CA 7, 1981). Indeed, these courts note that lesser procedures than
the trial court employed here would satisfy the Constitution. “Lesser (even no) warnings do not
call into question the sufficiency of the waiver so far as the Constitution is concerned.”
Rodriquez, supra, 527. “There is no constitutional requirement that a court conduct an on the
record colloquy with the defendant prior to the jury trial waiver.” Martin, supra, 274.
Further, the cases from this Court relied on by defendant are also distinguishable because
in those cases, the statute was not complied with either because a written waiver was not signed
by the defendant or because the waiver was not placed on the record in open court. See People v
Delahanty, 173 Mich App 487; 434 NW2d 431 (1988) (no signed waiver; waiver imposed as
penalty for failing to appear at jury selection held invalid); People v Marcellis, 105 Mich App
662; 307 NW2d 402 (1981) (signed waiver was not made as part of the record in open court and
did not apply to habitual proceeding); and People v Edwards, 51 Mich App 403; 214 NW2d 909
(1974) (no signed written waiver). Further, defendant’s argument is not supported by People v
James, 184 Mich App 457; 458 NW2d 911 (1990), vacated and remanded 437 Mich 988; 469
NW2d 294 (1991), because the alleged deficiency of the trial court’s fact finding was determined
sufficient after remand, People v James (After Remand), 192 Mich App 568, 570; 481 NW2d 715
(1992). Also, this Court specifically rejected defendant’s argument that the trial court should
advise a defendant that a jury verdict must be unanimous. James (After Remand), supra, 571.
This Court’s opinions subsequent to James I, supra, confirm that the jury waiver in this
case was adequate and that the trial court made a sufficient finding that it was the voluntary,
intelligent and understanding choice of defendant. People v Gist, 188 Mich App 610; 470 NW2d
475 (1991); People v Reddick, 187 Mich App 547, 549-550; 468 NW2d 278 (1991). Moreover,
in People v Shields, 200 Mich App 554, 560-561; 504 NW2d 711 (1993), this Court also rejected
the claim that the trial court should engage in a colloquy with the defendant to determine if any
threats or promises may have induced the waiver of jury trial.
In summary, the trial court complied with the statute and court rule, and properly
concluded that defendant’s waiver of jury was voluntary, intelligent and understanding. No more
is required. The trial court did not clearly err by accepting defendant’s waiver of jury trial.
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Next, defendant claims that he was denied a fair trial when the trial court did not direct a
verdict of not guilty on the principal charge of assault with intent to commit murder and that
insufficient evidence was presented to sustain his conviction for the lesser included offense of
assault with intent to commit great bodily harm less than the crime of murder. We disagree.
As to the assault with intent to murder charge, any error in failing to grant a directed
verdict would be harmless. In People v Edwards, 171 Mich App 613, 619; 431 NW2d 83
(1988), this Court concluded that “an erroneous denial of a directed verdict is rendered harmless
when the judge, sitting as the trier of fact, ultimately convicts the defendant of a lesser offense
for which sufficient evidence has been adduced.” Here, the court convicted defendant of the
lesser offense of assault with intent to do great bodily harm.
Defendant’s argument that insufficient evidence was presented to sustain his conviction
of assault with intent to do great bodily harm is without merit. The elements of an assault with
intent to do great bodily harm are (1) an attempt or threat with force or violence to do corporal
harm to another (an assault), and (2) an intent to do great bodily harm less than murder. People v
Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). Sufficient evidence was adduced at
trial, when viewed in the light most favorable to the prosecution, from which a rational factfinder
could conclude that all of the elements of the offense of assault with intent to commit great
bodily harm were proven beyond a reasonable doubt.
In the present case, a rational factfinder, viewing the evidence in the light most favorable
to the prosecution, could have found that defendant intended to seriously wound the pursuing
police officer so that he could escape, and that defendant intentionally aimed and fired one .40
caliber round from a semi-automatic pistol (the same type of gun that police officers use) at close
range while the officer was in a vulnerable position on top of a fence. Thus, there was sufficient
evidence for a rational trier of fact to have concluded that all of the elements of the offense of
assault with intent to commit great bodily harm were proved beyond a reasonable doubt. While
defendant offers a different account, the trial court specifically found the testifying police officer
to be credible. After a bench trial, this Court will not resolve witness credibility anew. People v
Jackson, 178 Mich App 62, 64-65; 443 NW2d 423 (1989); People v Daniels, 172 Mich App
374, 378; 431 NW2d 846 (1988).
Defendant also claims he was denied a fair trial when his trial counsel presented
testimony and argument that defendant had prior convictions and was on parole at the time of the
instant offenses. Defendant’s claim is without merit.
Under the two-pronged test to determine if counsel’s performance fell below the
constitutional standard, a defendant must show that counsel's performance was deficient
according to prevailing professional norms, and that there is a reasonable probability that but for
counsel’s unprofessional errors the trial outcome would have been different. People v Toma, 462
Mich 281, 302-303; 613 NW2d 694 (2000); People v Pickens, 446 Mich 298, 312-313; 521
NW2d 797 (1994).
On this record, it is patent from both the questions asked by counsel and from his closing
argument that he was pursuing trial strategy. Defense counsel and defendant used defendant’s
parole status to explain why defendant ran from the police and why he did not throw away the
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gun he had (because he “didn’t want to catch another case”). Further, defense counsel used
defendant’s parole status through his questions to argue defendant would not have risked
shooting at the officer.
Moreover, in closing argument defense counsel used defendant’s parole status to buttress
defendant’s credibility in this case, which was in essence a one-on-one credibility contest. The
theory of the defense was that defendant was a street-wise former convict who would not risk
shooting at a police officer and that the officer was a rookie police officer who overreacted to an
accidental discharge. Defense counsel specifically argued that defendant is a “street guy” who
had been very “candid” about having “priors.” This strategy was reasonable and “falls within the
wide range of reasonable professional assistance” that could have been rendered in this case.
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 LEd 2d 674 (1984). The fact that
the strategy counsel pursued was unsuccessful does not mean he was ineffective. People v
Williams, 240 Mich App 316, 332; 614 NW2d 647 (2000).
Further, the present case was a bench trial, and the trial court is presumed to have
adhered to its duty not to draw improper inferences. People v Hawkins, 245 Mich App 439, 452;
628 NW2d 105 (2001); In re Forfeiture of $19,250, 209 Mich App 20, 31; 530 NW2d 759
(1989).
Affirmed.
/s/ Helene N. White
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
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