PEOPLE OF MI V ANDRE L HENRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 27, 2002
Plaintiff-Appellee,
v
No. 236328
Wayne Circuit Court
LC No. 00-012158
ANDRE L. HENRY,
Defendant-Appellant.
Before: Bandstra, P.J., and Murphy and Griffin, JJ.
PER CURIAM.
Defendant appeals as of right his conviction, following a bench trial, of third-degree
fleeing and eluding, MCL 257.602a(3)(a). Defendant was sentenced to three years’ probation
with one year in jail. We affirm. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
I. BASIC FACTS
The only witnesses to take the stand in the bench trial were a state trooper and defendant.
The trooper testified that he had been on patrol just after midnight when he stopped at a stoplight
and glanced over to see defendant’s vehicle, which had extensive damage to the passenger side.
Defendant’s vehicle was a 1985 Ford Mustang. The make of defendant’s car and the extensive
damage aroused suspicion in the trooper because fifteen minutes earlier the trooper had heard a
report of a hit and run accident in the area involving a Mustang.
The trooper began following defendant’s vehicle, and defendant’s car then accelerated,
although the trooper was unsure if defendant was attempting to flee at that point, or if defendant
even noticed the patrol car. As the patrol car neared defendant’s vehicle, the trooper turned on
his emergency lights, and defendant extinguished his lights and made a hard left turn into a
vacant lot. The Mustang then returned to the street, where the trooper picked up the pursuit and
activated the patrol car’s siren. Defendant’s Mustang attained speeds of almost seventy miles an
hour in an area with a twenty mile per hour limit. Defendant did not stop and continued to flee,
driving in a very reckless manner, including the failure to stop at stop signs, cutting corners,
driving on sidewalks and lawns, and almost striking parked vehicles.
Eventually, the Mustang slowed and circled an area of town after blowing a couple of
tires. The trooper then witnessed defendant placing his arms over his head as to surrender, but
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the Mustang was still coasting, and defendant made gestures indicating that he could not stop.
After defendant’s vehicle slowed, but was still moving, the trooper angled his patrol car against
the Mustang’s front bumper and pushed it into the curb and onto the sidewalk, where the
Mustang finally came to a stop. The trooper testified that defendant did not make any other
gestures earlier in the chase. Defendant was arrested without incident after his vehicle was
stopped.
On cross-examination, the trooper indicated that he did not initially activate his lights or
siren, and that prior to nudging the Mustang to the sidewalk at the end of the pursuit, his patrol
car came into physical contact with the Mustang twice during the pursuit. Additionally,
defendant told the trooper after the chase that he did not have brakes on the Mustang and that the
vehicle had been stuck in first gear. Finally, the trooper testified that his partner, who had also
been in the patrol car during the pursuit and was an endorsed witness, was terminated two days
before trial. The prosecutor noted that based on the circumstances, he could not get the trooper’s
partner to court to testify. The trial court indicated that it would basically instruct itself on the
adverse witness instruction with regard to the missing officer.
Defendant then testified and admitted to hitting a parked car just prior to the pursuit,
which resulted in damage to his Mustang. Thereafter, defendant thought he was being chased
by someone, though not the police, connected to the car he had struck, and all defendant could
see were bright lights coming up to the rear of his car. Eventually, defendant realized he was
being pursued by what appeared to be a police vehicle with a red light on top. However,
defendant believed that it was a “fake” police car because there was only a red light and not red
and blue lights like on Detroit police cruisers, and because when defendant slowed down, the
“police” vehicle struck his Mustang about seven times. Defendant became scared and continued
driving, worrying that he was going to be robbed or shot, and he then tried to drive in the
direction of the Tenth Precinct for assistance and safety, which is near where the actual pursuit
ended. Defendant claimed that he had no brakes, and that he could not slow down by
downshifting because he could not shift into first gear. He eventually realized that real police
were pursuing him because of the siren that was activated late in the pursuit, and defendant
signaled to the police that he was trying to stop but could not.
The trial court found defendant guilty of fleeing and eluding police, and it found that
defendant did not believe he was being chased by “fake” police, but was simply fleeing to get
away because of the earlier accident.
II. ANALYSIS
A. Ineffective Assistance of Counsel - Disqualification of Trial Judge
Defendant first argues that he was denied effective assistance of counsel where his
attorney fail to move for the disqualification of the trial judge after defendant had offered to
plead guilty to fleeing and eluding before the same judge. We disagree.
In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court,
addressing the basic principles involving a claim of ineffective assistance of counsel, stated:
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To justify reversal under either the federal or state constitutions, a
convicted defendant must satisfy the two-part test articulated by the United States
Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
(1994). “First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel
was not performing as the ‘counsel’ guaranteed by the Sixth Amendment.”
Strickland, supra at 687. In so doing, the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy. Id. at
690. “Second, the defendant must show that the deficient performance prejudiced
the defense.” Id. at 687. To demonstrate prejudice, the defendant must show the
existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. Because the
defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Our review is limited to the record because no Ginther1 hearing occurred. People v
Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997).
The following colloquy occurred directly before trial:
Defense Counsel.
[T]here’s been a plea agreement reached in this case. My
client’s pleading guilty to fleeing and eluding, your Honor.
Trial Judge. Well, I will accept the plea, but I’m not going to accept the
agreement, because I don’t know anything about this case. So, if you want to
plea, you can plead unconditionally. I’m going to reserve the Court’s right to
give a sentence that’s appropriate to the facts, and I’m not really familiar with
them. So, I can’t sign that, in the blind like that. You can take him back and
think about it for awhile. But no, I can’t go along with a promise on
something I don’t know anything about. If he wishes to plead, he can.
Defendant then decided to proceed with trial. We find no basis for reversal. There is
nothing in the record reflecting a bias by the trial judge against defendant despite the aborted
guilty plea. People v Cocuzza, 413 Mich 78, 83; 318 NW2d 465 (1982). The trial court’s actions
in quickly concluding the trial after the presentation of witnesses with no argument from the
prosecutor did not reveal a bias, but simply revealed the court’s belief that defendant was guilty
based on the strong evidence of guilt and the highly questionable defense. Moreover, there is
nothing in the record reflecting defense counsel’s reasons for not moving for disqualification.
Therefore, defendant has failed to overcome the strong presumption that counsel’s actions were a
matter of sound trial strategy. Additionally, we find no prejudice.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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B. Adverse Inference - Missing Witness
Defendant argues that the trial court impermissibly negated any possible benefit to
defendant by failing to properly consider the adverse inference that arose with regard to the
officer who failed to testify. We disagree.
CJI2d 5.12 provides:
[The officer] is a missing witness whose appearance was the responsibility
of the prosecution. You may infer that this witness’s testimony would have been
unfavorable to the prosecution’s case.
After the trial court found defendant guilty, defense counsel asked if the court took into
consideration the adverse witness instruction. The court replied that it had taken the instruction
into consideration, and when defense counsel then stated that the court was required to accept
that the testimony would be favorable to defendant, the court replied:
No, Mr. Najar [defense counsel]. What you’re saying that, if you take an
adverse instruction you tell the jury that if a witness were here, his testimony
would be adverse to the People’s case. And I’m saying, fine. And if he had come
in and testified adversely to the People’s case, I would not believe him. I believe
what the officer, who was live here said, was the truth. That your client was
doing 70 miles an hour, flattened two of his tires, and went across three vacant
lots, and back onto the street at that rate of speed. He was not afraid that there
was any phony cops after him, or anybody that was out to hurt him. He was
trying to get away from the police. And no matter how many adverse
instructions, or who came in here and said something different, that is what the
Court would have found.
The trial court committed no error because CJI2d 5.12 clearly provides that the trier of
fact “may” infer that the testimony would have been unfavorable, not that it must infer. The trial
court, in essence, did not make an unfavorable inference considering the strong evidence against
defendant and the highly questionable defense proffered by defendant. We find no error.
Moreover, assuming error, it was harmless considering the evidence of guilt. MCL 769.26;
People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).
C. Validity of Jury Waiver
Finally, defendant argues that the waiver of his right to a jury trial was invalid because
the record does not reflect that it was made knowingly and understandingly, where there was no
explanation of the differences between a jury trial and a bench trial. We disagree.
The trial court’s determination that a defendant validly waived the right to a jury trial is
reviewed for clear error. People v Leonard, 224 Mich App 569, 595; 569 NW2d 663 (1997).
MCR 6.402(B) 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
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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. . . .
At a hearing prior to trial, the trial court questioned defendant concerning his decision to
waive the right to a jury trial.
Q. Mr. Henry, Mr. Najar advises the court that you wish to waive your rights to a
jury trial and have the case heard by the court. Is that what you wish to do?
A. Yes.
Q. And you have a right to have a jury trial. You want to waive that right?
A. Yes.
Q. You’ve discussed your rights with Mr. Najar?
A. Yes.
Q. Anybody threaten you in any way or promise you anything to get you to
waive your rights?
A. No, sir.
Q. Okay. This is what you wish to do?
A. Yes.
The trial court found that the waiver was knowingly and voluntarily made. Additionally,
defendant signed a written waiver, in compliance with MCL 763.3, that expressly acknowledged
his constitutional right to a jury trial and his decision to be tried by a judge.
There is nothing in the record to reflect that defendant did not make a knowing and
voluntary waiver. Moreover, a trial court is not required to explain the differences between a
jury trial and a bench trial. Leonard, supra at 596. Defendant fails to cite any law to the
contrary.
Affirmed.
/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Richard Allen Griffin
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