PEOPLE OF MI V TIMOTHY ARTHUR SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 22, 2002
Plaintiff-Appellee,
v
No. 232659
Oakland Circuit Court
LC No. 98-163231-FH
TIMOTHY ARTHUR SMITH,
Defendant-Appellant.
Before: Murphy, P.J., and Markey and R. S. Gribbs*, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of four counts of third-degree
criminal sexual conduct, MCL 750.520d(1)(a), involving two young girls. Defendant was
sentenced to concurrent terms of ten to fifteen years’ imprisonment. We affirm.
Defendant’s first issue on appeal is whether the trial court erred in not admitting a
statement into evidence after the prosecution had rested and the complainant, who wrote the
statement, had been dismissed. This Court reviews a trial court’s decision regarding the
admissibility of evidence for an abuse of discretion. People v Schutte, 240 Mich App 713, 715;
613 NW2d 370 (2000).
The trial court ruled that the written statement was inadmissible unless defendant could
lay a proper foundation for its admission and that the statement, which was a surprise to the
prosecution and not disclosed until after the prosecution rested, could not be authenticated by the
complainant’s mother. Defense counsel did not lay the proper foundation for its admission when
the complainant was on the stand and the trial court noted that the prosecution no longer had the
opportunity to call an expert. Defendant does not challenge the trial court’s ruling that the
statement could not be authenticated without the complainant, but argues that the statement is
relevant and material, and that he should have been allowed to recall the complainant in order to
authenticate it.
Defendant knew about the statement, allegedly written months prior to trial, when the
complainant was on the stand. The complainant admitted that she had written a statement
because she was doing everything she could to try to rebuild a relationship with her mother, who
*
Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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was defendant’s girlfriend, but testified that she was “not going to sit up here and lie for her so
she can be happy.” The complainant testified in detail about the sexual activity with defendant,
and her testimony was corroborated by the other complainant who witnessed it before being
assaulted herself. Defense counsel indicated that he had no further questions of the complainant
and did not object to her dismissal, but attempted to admit the written statement on the next day
of trial. The prosecutor had never seen the statement. Under these circumstances, the trial court
did not abuse its discretion in refusing to let defendant admit the statement after the prosecution
rested.
Defendant also argues that the jury should have been instructed on fourth-degree criminal
sexual conduct, a cognate lesser included offense of third-degree sexual conduct. Our Supreme
Court recently resolved this issue in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002),
and concluded that MCL 768.32(1), only permits instruction on necessarily included lesser
offenses, not cognate lesser offenses. Id. 355. Because fourth-degree criminal sexual conduct is
a cognate lesser offense of third-degree criminal sexual conduct, and not a necessarily included
lesser offense, the trial court did not err in refusing to give the instruction.
Next, defendant argues in propria persona that trial counsel failed to provide him with
effective assistance of counsel. Because defendant failed to preserve this issue for review by
moving for a new trial or evidentiary hearing in the trial court, our review is limited to the
existing record. People v Watkins, 247 Mich App 14, 30; 634 NW2d 370 (2001).
To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that, but for
defense counsel’s errors, there was a reasonable probability that the result of the proceeding
would have been different. People v Pickens, 446 Mich 298; 521 NW2d 797 (1994). A
defendant must demonstrate that counsel’s performance was objectively unreasonable and so
prejudicial as to deprive him of a fair trial, and must also overcome the presumption that the
challenged action might be considered sound trial strategy. Id. A defense attorney is afforded
great discretion in trying a case, especially with regard to trial strategy and tactics. Pickens,
supra, 446 Mich 325. That the strategy counsel chose ultimately failed does not constitute
ineffective assistance of counsel. Id.
Defendant claims his trial counsel failed to provide effective assistance by failing to
obtain the statement purportedly written by the complainant upon learning of it, failing to turn
over the statement to the prosecution before it rested, and by failing to impeach the complainant
with the letter.
Defendant has not overcome the presumption that counsel’s actions were reasonable or
shown that any alleged defects detrimentally affected the result of the trial. People v Fike, 228
Mich App 178, 181; 577 NW2d 903 (1998). Defense counsel excused the complainant after she
responded to his questions about the letter by reasserting that defendant sexually assaulted her.
Her responses may have affected defense counsel’s decision to introduce the letter at that time.
Defense counsel may have decided, as a matter of trial strategy, not to give the complainant
further opportunity to emphasize her testimony about the sexual assault. The appellate court
does not substitute its judgment for counsel’s judgment regarding trial strategy. People v
Kevorkian, 248 Mich App 373, 414; 639 NW2d 291 (2001). In any event, defendant has failed
to show a reasonable probability that the result of the proceeding would have been different had
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the statement been admitted. The complainant’s friend testified she saw defendant and the
complainant having intercourse. This testimony corroborated the complainant’s version of the
events. Defendant’s ineffective assistance of counsel claim is unsupported by the record.
Finally, defendant argues in propria persona that his appellate counsel failed to provide
him with effective assistance of counsel for failing to raise the issue of trial counsel’s ineffective
assistance. Where, as here, appellate counsel has pursued an appeal as of right and raised
nonfrivolous claims, the defendant must make a testimonial record in the trial court in
connection with a claim of ineffective assistance of appellate counsel. People v Reed, 198 Mich
App 639, 647; 499 NW2d 441 (1993). In this case, defendant failed to make a record in the trial
court, and therefore, our review is limited to the existing record. The same standards that apply
to a claim of ineffective assistance of trial counsel also apply to a claim of ineffective assistance
of appellate counsel. Id.
Nothing in the record supports defendant’s claim that appellate counsel’s performance
fell below an objective standard of reasonableness. The failure to assert all arguable claims is
not sufficient to overcome the presumption that counsel functioned as a reasonable appellate
attorney in selecting the issues presented. Reed, supra, 198 Mich App 646. In light of our
finding that trial counsel was not ineffective, defendant was not prejudiced by appellate
counsel’s failure to raise an ineffective assistance issue. Defendant has not overcome the
presumption that he received effective assistance of appellate counsel.
Affirmed.
/s/ William B. Murphy
/s/ Jane E. Markey
/s/ Roman S. Gribbs
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