PEOPLE OF MI V ABBAS ALI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 20, 2002
Plaintiff-Appellee,
v
No. 229326
Wayne Circuit Court
LC No. 99-009623
ABBAS ALI,
Defendant-Appellant.
Before: Murray, P.J., and Fitzgerald and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree premeditated murder,
MCL 750.316(1)(a). He was sentenced to life imprisonment. Defendant now appeals as of right.
We affirm.
I. Request for a New Attorney
Defendant first argues that the trial court abused its discretion in denying his request to
retain new counsel. We disagree. The substitution of appointed counsel is within the sound
discretion of the trial court. People v Arquette, 202 Mich App 227, 231; 507 NW2d 824 (1993).
Likewise, we review a trial court’s decision whether to grant a continuance for an abuse of
discretion. People v Echavarria, 233 Mich App 356, 368; 592 NW2d 737 (1999). The
determination of whether a trial court abused its discretion in denying a defendant the
opportunity to replace appointed counsel with retained counsel turns on whether there was a
bona fide dispute and whether the defendant’s request was timely brought and not the result of
negligence or a delay tactic. People v Battles, 109 Mich App 487, 490; 311 NW2d 779 (1981);
People v Shuey, 63 Mich App 666, 671, 234 NW2d 754 (1975), citing People v Charles O
Williams, 386 Mich 565, 578; 194 NW2d 337 (1972). Similarly, when reviewing a trial court’s
decision to deny a defendant’s motion for a continuance to obtain another attorney, we consider
the following factors:
(1) whether the defendant is asserting a constitutional right, (2) whether the
defendant has a legitimate reason for asserting the right, such as a bona fide
dispute with his attorney, (3) whether the defendant was negligent in asserting his
right, (4) whether the defendant is merely attempting to delay trial, and (5)
whether the defendant demonstrated prejudice resulting from the trial court’s
decision. [Id. at 369. See also Shuey, supra.]
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Application of the foregoing factors to the instant case reveals that the trial court did not err in
denying defendant’s request to obtain a new attorney.
In this case, the question whether appointed counsel would continue to represent
defendant arose for the first time at a pretrial proceeding, which took place two months before
the start of trial. At that time, defendant’s attorney represented that defendant was satisfied with
appointed counsel, but that defendant’s family wished to retain new counsel for defendant. The
trial court denied the family’s request for new counsel, finding that if defendant was satisfied
with appointed counsel, there was no reason to inquire further. We find no error in the trial
court’s decision. Although it might have been helpful if the trial court had elicited statements
from defendant personally in the matter, we will not presume from this record that appointed
counsel misrepresented defendant’s satisfaction with him, in gross violation of ethical duties of
zealous representation, see Bauer v Ferriby & Houston, PC, 235 Mich App 536, 538; 599 NW2d
493 (1999), and of candor before a tribunal, see MRPC 3.3(a)(1). Accordingly, we find no abuse
of discretion.
The question of substituting defendant’s appointed counsel arose again on the first day of
trial. This time defendant stated on the record that he wanted to fire appointed counsel because
he was not happy with him. The trial court refused to adjourn the trial and denied defendant’s
request. Thereafter, the trial court also denied defendant’s brothers’ request to change
defendant’s attorney after defendant’s brother informed the court that the family changed
defendant’s lawyer. We find no error. Although defendant was asserting his constitutional right
to counsel, there appears to be no legitimate reason for defendant to assert the right. The record
does not indicate that a bona fide dispute existed between defendant and his appointed counsel at
that time, but only that defendant expressed a general dissatisfaction with counsel’s efforts.
However, upon further questioning, defendant expressed agreement to continue with appointed
counsel. Furthermore, because defendant waited until the first day of trial to assert his right, his
request was not timely brought. Instead, we find that defendant was negligent in failing to assert
his right earlier. See Echavarria, supra at 369-370 (trial court did not abuse its discretion in
refusing to allow the defendant to be represented by counsel of his choice where the defendant
was found negligent in waiting until the day of trial to assert his right to counsel). Moreover, the
record indicates that it was defendant’s family members that were insistent about replacing
defendant’s appointed counsel, not defendant. Accordingly, we find that the trial court did not
abuse its discretion in refusing to grant defendant’s last-minute request to retain new counsel.
II. Jury Instructions
Defendant also argues that the trial court’s instructions on the elements of causation for
first-degree and second-degree murder had the effect of directing a verdict of guilty on that
element and shifting the burden of proof, thereby denying defendant a fair trial. However,
defendant failed to object to the jury instructions at trial and in fact, expressed satisfaction with
the instructions as given. Because defendant affirmatively approved the jury instructions, his
waiver extinguished any error on appeal. People v Carter, 462 Mich 206, 215-216; 612 NW2d
144 (2000).
III. Defendant’s Custodial Statement
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Defendant next claims that the trial court erred in declining to rule on the voluntariness of
a statement defendant allegedly made to police while in custody. Before trial, the defense filed a
motion to suppress this statement as involuntary in that the police, through “improper threats and
promises,” induced defendant to sign the statement. At the conclusion of the Walker1 hearing,
the trial court denied defendant’s motion, finding that whether defendant made the statement at
all was not a question of voluntariness, but a question of fact for the jury at trial. However,
defense counsel expressly approved the trial court’s ruling. In fact, defense counsel stated, “I
agree it’s going to have to go before the jury at this point and we’ll have to take it up with them
and it will be a question of fact as to whether he understood [the police officer] and whether that
was something he said or was made up by the officer.” Accordingly, defendant waived his right
to challenge the court’s ruling when he expressly agreed with the trial court’s decision regarding
the handling of the issue. Id. Again, a defendant may not waive objection to an issue before the
trial court and then seek appellate review for his waiver has extinguished any error. Id. at 214215. Because defendant waived the issue, there is no error to review. See id. at 218-219.
IV. Ineffective Assistance of Counsel
Last, defendant argues that he was denied the effective assistance of counsel based on
three errors. We disagree. Because defendant’s motion to remand for an evidentiary hearing
based on ineffective assistance of counsel was denied, this court’s review is limited to mistakes
apparent on the existing record. People v Avant, 235 Mich App 499, 507; 597 NW2d 864
(1999); People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989).
The constitutional right to counsel is a right to the effective assistance of counsel. People
v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). In order for this Court to reverse an
otherwise valid conviction due to the ineffective assistance of counsel, the defendant must
establish that his counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms, and that the representation so prejudiced the defendant that,
but for counsel’s error, the result of the proceedings would have been different. People v Noble,
238 Mich App 647, 662; 608 NW2d 123 (1999), citing People v Pickens, 446 Mich 298, 302303; 521 NW2d 797 (1994); People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” Id. Furthermore, the defendant must overcome a strong presumption that the
assistance of counsel was sound trial strategy, because this Court will not second-guess counsel
regarding matters of trial strategy, even if counsel was ultimately mistaken. People v Rice (On
Remand), 235 Mich App 429, 444-445; 597 NW2d 843 (1999). Nor will it assess counsel’s
competence with the benefit of hindsight. Id. at 445.
Defendant first claims he was denied the effective assistance of counsel when his trial
counsel acquiesced in the trial court’s ruling regarding the voluntariness of defendant’s
statement. Even assuming that the trial court erred in failing to address the voluntariness of
defendant’s statement2 and that trial counsel was deficient in agreeing with the trial court’s
1
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
2
The issue whether a statement has been made at all and a determination as to the voluntariness
with which a statement was signed are two separate matters. People v Neal, 182 Mich App 368,
(continued…)
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erroneous ruling, we are not persuaded that, but for counsel’s error, the result of the proceedings
would have been different. Noble, supra. Indeed, we hold that the use of defendant’s statement
at trial did not prejudice him in that it did not affect the outcome of the proceedings. The
evidence of defendant’s guilt was overwhelming independent of his statement. Two
eyewitnesses directly implicated defendant in the attack on the victim. In fact, defendant
admitted to one of the witnesses that he had “sliced [the victim’s] stomach.” Thus, the
prosecutor’s case was not at all dependent on defendant’s partially conflicting statements to the
police. Further, the jury heard defendant’s denials concerning the veracity of the statement
attributed to him, and was instructed to decide for itself whether defendant made the statement,
and if so how much weight to afford it. Because the use of that statement at trial did not result in
prejudice to defendant, we therefore conclude that the matter does not support a claim of
ineffective assistance of counsel.
Defendant next argues that trial counsel’s failure to raise defendant’s invocation of his
right to remain silent as a ground to suppress the custodial statement constituted ineffective
assistance of counsel.3 Because we previously determined that the admission of defendant’s
statement did not prejudice him, a claim of ineffective assistance of counsel on this ground must
also fail.
Defendant also asserts he was denied the effective assistance of counsel when his trial
counsel failed to object to the instructions on causation. First, “jury instructions are to be read as
a whole, not extracted in a piecemeal fashion.” People v Dabish, 181 Mich App 469, 478; 450
NW2d 44 (1989). Additionally, imperfect instructions do not require reversal “if they fairly
presented the issues to be tried and sufficiently protected the defendant’s rights.” People v
Perez-DeLeon, 224 Mich App 43, 53; 568 NW2d 324 (1997) (citations omitted). In this case,
when read as a whole, the jury instructions adequately protected defendant’s rights and did not
shift the burden of proof or have the effect of directing a verdict on the element of causation.
Because we conclude that the instructions, taken as a whole, should have steered the jury away
from any erroneous treatment of the element of causation for murder, we conclude that trial
counsel’s failure to object or seek clarification at trial did not constitute ineffective assistance of
counsel.
(…continued)
371; 451 NW2d 639 (1990). The former being a question of fact to be decided by the trier of
fact. Id. However, “where . . . a defendant claims that he involuntarily signed a statement and
that the statement was fabricated by police, . . . the trial court must determine, assuming the
defendant made the statement, whether he did so voluntarily.” Id. at 372. If it is found that the
defendant voluntarily made the statement, the defendant is free to argue that the police fabricated
it, but if the statement was involuntarily made, it is inadmissible, regardless of the defendant’s
claim that he never actually made it. Id.
3
It should be noted that defendant does not argue that the trial court erred in admitting
defendant’s statement when the police failed to “scrupulously honor” defendant’s invocation of
his right to remain silent, but only that counsel was ineffective in failing to raise such an
argument as grounds for suppression of the statement. Therefore, this Court will only address
the issue as it relates to ineffective assistance of counsel.
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Affirmed.
/s/ Christopher M. Murray
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
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