PEOPLE OF MI V STEVEN SHAYA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 18, 2004
Plaintiff-Appellant,
v
No. 245877
Wayne Circuit Court
LC No. 01-008591
STEVEN SHAYA,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Jansen and Talbot, JJ.
PER CURIAM.
Defendant was convicted of false pretenses over $20,000, MCL 750.218(5)(a).
Defendant was sentenced to five years’ probation and ordered to pay $80,500 in restitution.
Defendant moved for a new trial based on ineffective assistance of counsel and prosecutorial
misconduct, and the trial court granted a new trial on both bases. We reverse and remand.
The prosecution’s first issue on appeal is that the trial court erred in granting defendant’s
motion for a new trial based on ineffective assistance of counsel without first conducting an
evidentiary hearing. We agree.
We review a trial court’s decision regarding a motion for a new trial for an abuse of
discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). In order to determine
whether the trial court abused its discretion, we are required to examine the reasons given by the
trial court for granting a new trial. People v Jones, 236 Mich App 396, 404; 600 NW2d 652
(1999). We will find an abuse of discretion if the reasons given by the trial court do not provide
a legally recognized basis for relief. Id.
Defendant filed a motion for a new trial arguing ineffective assistance of counsel and
prosecutorial misconduct. Defendant claims that his trial counsel was ineffective because his
trial counsel possessed a letter written by the supervising building inspector which refutes the
fact that defendant obtained a Certificate of Acceptance by false pretenses, but failed to present
the letter at trial. The trial court granted defendant’s motion on the basis of ineffective assistance
of counsel without holding an evidentiary hearing.
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 the deficient
performance prejudiced the defense so as to deny defendant a fair trial.” People v Smith, 456
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Mich 543, 556; 581 NW2d 654 (1998), citing People v Pickens, 446 Mich 298, 338; 521 NW2d
797 (1994); see also Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984). “The defendant must overcome a strong presumption that counsel’s assistance
constituted sound trial strategy. Second, the defendant must show that there is a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been different.”
People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994), citing Strickland, supra, at 689695. A defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel, and to the extent that his claim depends of facts not of record, it is
incumbent on him to make a testimonial record at the trial court level. People v Hoag, 460 Mich
1, 6; 594 NW2d 57 (1999).
It is apparent from a reading of the record that defense counsel’s theory was not that the
certificate was in fact valid, but, rather, that defendant was not the party responsible for the
fraud. Furthermore, the prosecution argued to the jury that it was not critical whether the
certificate was forged because defendant had verbally misrepresented that the job was complete,
when in fact it was not, and that this misrepresentation was enough to meet the requirements of
false pretenses.
In any event, we find that it remains unclear why the inspector wrote the letter. One
theory presented on appeal was that the letter was written as a safe guard to cancel the certificate
in the event that one had been legitimately issued. If this is the case, defense counsel may have
chosen not to inquire about the letter because he was aware of how the inspector would have
responded. Because it is unclear from the record whether defense counsel was ineffective, the
trial court, at the very least, should have conducted an evidentiary hearing to determine the facts
behind the allegations before granting defendant’s motion for a new trial. In the absence of an
evidentiary hearing, to clarify the circumstances surrounding the letter in question and to
determine whether the performance of defendant’s trial counsel fell below an objective standard
of reasonableness, Smith, supra at 556, in a manner that was prejudicial to the extent there is a
reasonable probability it changed the outcome of the proceedings, Stanaway, supra at 687, we
find that the trial court abused its discretion in granting defendant’s motion for a new trial. See
Cress, supra at 691; Jones, supra at 404.
The prosecutor next argues that the trial court erred in granting defendant’s motion for a
new trial based on prosecutorial misconduct. We agree.
A criminal defendant has a due process right of access to certain information possessed
by the prosecution. People v Lester, 232 Mich App 262, 281; 591 NW2d 267 (1998), citing
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). “In order to establish a
Brady violation, a defendant must prove (1) that the state possessed evidence favorable to the
defendant, (2) that the defendant did not possess the evidence and could not have obtained it with
the exercise of reasonable diligence, (3) that the prosecution suppressed the favorable evidence,
and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the proceedings would have been different.” Lester, supra, at 281.
The trial court’s finding of prosecutorial misconduct was based on the premise that the
prosecution knew of evidence, the letter written by the inspector, suggesting that the certificate
was authentic and did not present that evidence to the jury. The prosecutor, however, noted at
the hearing on defendant’s motion for a new trial, that both he and defense counsel had a copy of
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this letter, and defendant did not refute this assertion. Furthermore, the letter was addressed to
defendant and defendant made no indication that he did not receive the letter. Nonetheless, it is
questionable whether the outcome of the proceedings would have been different had the letter
been introduced, as the purpose of the letter was never ascertained. The letter could have been
written merely as a safeguard to cancel the certificate in the event that one had been issued. But,
without further explanation, we can only speculate regarding why the letter was written.
Because defendant has failed to meet the necessary requirements set forth in Brady, supra, he
has failed to show that the prosecutor committed misconduct. Again, without an evidentiary
hearing to clarify the circumstances surrounding the letter, the trial court abused its discretion in
granting defendant’s motion for a new trial on the basis that the prosecution committed
misconduct in failing to present the letter to the jury.
Reversed and remanded to the trial court for an evidentiary hearing regarding defendant’s
motion for a new trial.
/s/ E. Thomas Fitzgerald
/s/ Kathleen Jansen
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