PEOPLE OF MI V J- VON D BYNUM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2004
Plaintiff-Appellee,
V
No. 248095
Wayne Circuit Court
LC No. 02-014334-01
J-VON D. BYNUM,
Defendant-Appellant.
Before: Meter, P.J., and Wilder and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of armed robbery, MCL 750.529, firstdegree home invasion, MCL 110a(2), unlawfully driving away a motor vehicle, MCL 750.413,
felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b. We affirm. This case is being decided without oral
argument pursuant to MCR 7.214(E).
I. FACTS
The prosecutor’s theory of the case was that defendant and two others forced their way
into an elderly man’s home in Detroit, that defendant took money from the victim’s wallet then
struck him on the head with a gun, and that the three then ransacked the house, taking several
items, then drove away in the victim’s car. The offenders ended up in a serious accident with the
victim’s car, resulting in a fatality. In the hospital after the accident, defendant implicated
himself in the home invasion in a statement to a police officer, and further admitted that a gun
was involved.
Appellate counsel argues that the trial court abused its discretion in denying defendant’s
motion for appointment of substitute defense counsel, and in denying a motion for a mistrial.
Defendant, in his brief in propria persona, adds the assertion that trial counsel was
constitutionally ineffective.
II. SUBSTITUTION OF COUNSEL
A. Standard of Review
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A trial court’s decision on a motion to substitute defense counsel is reviewed for an abuse
of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). Substitution is
warranted “only upon a showing of good cause and where substitution will not unreasonably
disrupt the judicial process.” People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991).
“Good cause exists where a legitimate difference of opinion develops between a defendant and
his appointed counsel with regard to a fundamental trial tactic.” Id.
B. Analysis
Appellate counsel states that trial counsel’s laxity in obtaining hospital records
constituted a legitimate difference of opinion regarding a fundamental trial tactic, and argues that
those records would have better allowed both the court and the jury to understand the conditions
under which defendant made his statement to the police officer.
This argument does not bring to light a disagreement, however. Trial counsel reported
that he had subpoenaed the records in question, but that the hospital had “some sort of
breakdown” and could not produce them. Defendant does not dispute this account, and trial
counsel did indeed cross-examine the police witness who took defendant’s statement over
defendant’s condition at the time. Appellate counsel fails to show any difference of opinion on a
fundamental trial tactic and as a result, appellate counsel fails to show that the court abused its
discretion in declining to order substitution of trial counsel on the morning of trial.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
“In reviewing a defendant’s claim of ineffective assistance of counsel, the reviewing
court is to determine (1) whether counsel’s performance was objectively unreasonable and (2)
whether the defendant was prejudiced by counsel’s defective performance.” People v Rockey,
237 Mich App 74, 76; 601 NW2d 887 (1999). Concerning the latter, the defendant must show
that the result of the proceeding was fundamentally unfair or unreliable, and that but for
counsel’s poor performance the result would have been different. People v Messenger, 221 Mich
App 171, 181; 561 NW2d 463 (1997). Defendant did not move for a new trial or a Ginther1
hearing below; thus, this Court’s review of this issue is limited to mistakes apparent on the
record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
B. Analysis
Defendant continues the argument that defense counsel performed deficiently for failure
to obtain his hospital records. However, defendant offers no reason to suppose that the court or
prosecutor would have had better success in causing the hospital to find lost records than defense
counsel had with his own subpoena. Defendant’s speculation in this regard does not support a
claim of ineffective assistance. Defendant fails to show that defense counsel erred in the matter,
or that the proceedings were fundamentally unfair. Messenger, supra.
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Defendant also contends that defense counsel had failed to consult with him. Defendant
cites authority for the proposition that failure to investigate and present favorable witnesses can
constitute ineffective assistance, then argues that counsel’s failure to obtain and introduce a
photograph of the deceased denied him a fair trial. Defendant implies that production of a
photograph of the deceased would have encouraged the jury to consider that the deceased, not
defendant, participated in the home invasion. However, that similarity in weight and height was
attested to and described at trial. Defendant’s plain statement to the police putting himself
among the perpetrators of the home invasion shows this argument to be a strained one.
Defendant has failed to show attorney error that caused him prejudice. Messenger, supra.
IV. MISTRIAL
A. Standard of Review
Trial counsel moved for a mistrial after many of the details of the fatal car accident had
come to the jury’s attention. This Court reviews a lower court’s decision on a motion for a
mistrial for an abuse of discretion. People v Haywood, 209 Mich App 217, 228; 530 NW2d 497
(1995). “A mistrial should be granted only for an irregularity that is prejudicial to the rights of
the defendant, and impairs his ability to get a fair trial.” Id. (citations omitted).
B. Analysis
Before trial, the understanding of the trial court and the parties was that few of the details
of the accident would be brought out. The trial court acknowledged, however, that things might
change as trial progressed. Then, on the first day of trial, the complainant testified that the police
called him to report, “‘we found your car . . . one dead, two in the hospital.’” The court promptly
advised the witness not to volunteer information. On the second day, the prosecutor, recalling
that one of the charges was unlawfully driving away, stated an intention to bring out some of the
circumstances of the accident. The trial court allowed her to do so, but stated that this should not
include mention that someone died in the accident.
An officer with the Detroit Police described “a vehicle flipped over on 96 and
“Fullerton,” with four males in the car, and identified defendant as the driver. A fire fighter
described finding defendant in a burning vehicle. Defense counsel himself finally elicited that
someone had died in the accident.
That defendant was found situated as the driver of the car that was stolen on the occasion
in question obviously bore directly on the question of defendant’s participation in the crimes
charged, especially unlawfully driving away. That the accident involved a fatality was part of
the overall context, and thus evidence to that effect was not a prejudicial irregularity. A jury is
entitled to learn the complete story of the matter in issue. People v Sholl, 453 Mich 730, 742;
556 NW2d 851 (1996). Moreover, as the trial court pointed out, the dramatic and tragic details
of the accident had the potential to evoke sympathy from the jury, which could have worked to
defendant’s advantage. For these reasons, defendant fails to show that the trial court abused its
discretion in denying the motion for a mistrial.
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Affirmed.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Bill Schuette
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