PEOPLE OF MI V QUINCY LAMAR BLAND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May17, 2007
Plaintiff-Appellee,
v
No. 265291
Ionia Circuit Court
LC No. 04-012834-FH
QUINCY LAMAR BLAND,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and Owens, JJ.
PER CURIAM.
After a jury trial, defendant Quincy Lamar Bland was convicted of one count of assault
with intent to do great bodily harm less than murder, MCL 750.84, and was sentenced as a thirdoffense habitual offender, MCL 769.11, to 108 to 240 months’ imprisonment. He appeals as of
right. We remand for further proceedings.
Defendant was incarcerated at the Richard A. Handlon Correctional Facility in Ionia,
Michigan. On October 3, 2004, corrections officer Eric Jefferies issued two citations to
defendant for his conduct. After receiving the second citation, defendant became insolent and
directed profanities at Jefferies. Shortly thereafter, the prisoners were served dinner. After
dinner, the inmates were counted and then were permitted to walk in the hallways and common
areas of the cellblock.
As Jefferies walked down the hallway of the cellblock to return to the officers’ desk, he
was struck in the head from behind.1 Defendant, facing Jefferies, began punching him in the
head and face. Jefferies assumed a fetal position in an attempt to protect himself from the blows,
and was unable to clearly remember the rest of the incident. From his position at the officers’
desk, corrections officer Michael Manley saw defendant strike Jefferies and start beating him in
the head. Manley and another officer, Robert Heuer, ran to the scene. Before they could reach
Jefferies, an inmate identified only as Freeman attacked them. Freeman possessed a weapon
known as a “lock in a sock,” consisting of a heavy object placed inside a sock. After attacking
1
Although Jefferies did not know who caused this initial blow, corrections officer Michael
Manley testified that he saw defendant strike Jefferies from behind.
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the officers, Freeman also assaulted Jefferies, hitting his body with the lock in a sock as
defendant continued to strike Jefferies’ head and neck with his closed fists.
Corrections officers Dennis Beecham and Michael Endres heard a distress call over their
radios and ran to assist. They arrived at the scene to find Jefferies lying in a fetal position on the
ground as defendant, kneeling over him, repeatedly struck him in the head and torso with “fullthrown, hard blows.” Beecham and Endres brought the incident to a halt and removed Manley,
Heuer, and Jefferies from the scene. Jefferies was treated at a local hospital for various injuries,
including facial and scalp lacerations, blunt trauma, a maxillary fracture, and sinus bleeding.
Defendant was charged with assault with intent to do great bodily harm less than murder
(count 1) or, alternately, with assault of a prison employee (count 2), MCL 750.197c.
I. Sufficiency of the Evidence
Defendant argues that the prosecution presented insufficient evidence of his intent to
support his conviction. We disagree. We review de novo claims of insufficient evidence in a
criminal trial. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). We view the
evidence in the light most favorable to the prosecution to determine whether a rational trier of
fact could have found that the essential elements of the crime were proven beyond a reasonable
doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005).
“Assault with intent to commit great bodily harm less than murder requires proof of
(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and
(2) an intent to do great bodily harm less than murder.” People v Parcha, 227 Mich App 236,
239; 575 NW2d 316 (1997). “This Court has defined the intent to do great bodily harm as ‘an
intent to do serious injury of an aggravated nature.’” People v Brown, 267 Mich App 141, 147;
703 NW2d 230 (2005), quoting People v Mitchell, 149 Mich App 36, 39; 385 NW2d 717 (1986).
A rational trier of fact could have found that defendant intended to inflict serious injury
of an aggravated nature on Jefferies. Viewed in the light most favorable to the prosecution, the
evidence demonstrates that defendant attacked Jefferies without provocation, that he repeatedly
used his fists to strike Jefferies with as much force as he could muster, that he targeted Jefferies’
head, that he continued his attack while other corrections officers were warded off by a fellow
prisoner, that he only ceased the attack after Beecham and Endres intervened, and that Jefferies
suffered serious injuries as a result of the attack. This evidence circumstantially suggests that
defendant intended to inflict serious aggravated injury on Jefferies. Brown, supra at 147. See
also People v VanDiver, 80 Mich App 352, 356; 263 NW2d 370 (1977) (concluding that attacks
with “[b]are hands are sufficient” to support a conviction under MCL 750.84). Evidence
regarding defendant’s motive for attacking Jefferies, namely, that Jefferies had disciplined
defendant earlier in the day, is also probative and supports a finding that defendant exhibited the
requisite intent. MRE 401; People v Sabin (After Remand), 463 Mich 43, 68; 614 NW2d 888
(2000) (proof of motive supports a “mens rea” determination).
II. Failure to Take Defendant’s Plea
Defendant next argues that the trial court erred when it declined to take defendant’s plea
the day before trial because, he claims, the judge contradicted his previous statement to defense
counsel, made in an ex parte phone conversation, that he would take defendant’s plea at the
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hearing scheduled on July 26, the day before trial. We review a trial court’s decision to accept or
reject a plea agreement for an abuse of discretion. People v Grove, 455 Mich 439, 460; 566
NW2d 547 (1997). An abuse of discretion occurs when the trial court’s decision is outside the
range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003).
In November 2004, the prosecutor offered defendant a plea agreement in which
defendant would plead guilty to assault with intent to do great bodily harm less than murder in
exchange for a ten-year maximum sentence, with no habitual offender enhancement. In July
2005, defense counsel contacted the prosecutor to negotiate this offer, but the prosecutor would
not vary the terms. On July 19, 2005, defendant told his counsel that he would not accept the
offer at that time, but his counsel told him that he would contact the prosecutor and judge to see
if they would still permit defendant to accept the offered plea agreement at the July 26, 2005,
hearing.
Defense counsel stated that on July 19, soon after meeting with defendant, he called the
prosecutor to request that defendant have until July 26 to accept the plea agreement. Defense
counsel claimed that the prosecutor told him that he would agree to the time extension if the
court also agreed. Defense counsel then stated that he called the judge’s chambers to leave a
message with his secretary regarding his request for the extension. The judge answered the
phone and, according to defense counsel, “indicated that [defendant] could take the plea [on
July 26].”
The prosecutor admitted that he had at least three communications with defense counsel
concerning the plea agreement in July 2005. According to the prosecutor, in the first
conversation defense counsel told him that he planned to discuss the terms of the plea agreement
with defendant, in the second conversation defense counsel told him that defendant “needed
some time to think about” the plea agreement, and in the third conversation defense counsel told
him that “the court had left open a plea date” on July 26, apparently for defendant to accept the
plea agreement. The prosecutor noted, “it was my understanding that we would have some sort
of decision from the inmate [regarding whether he would accept the plea agreement] prior than
two days before trial,” but admitted that the parties’ misunderstanding regarding whether
defendant could accept the plea agreement on July 26 was likely the result of a
“miscommunication” for which he accepted responsibility. He also noted that he had not been
“necessarily opposed” to permitting defendant to accept the plea agreement when defense
counsel contacted him on July 19. Instead, the prosecutor contested defendant’s attempt to
accept the plea agreement on July 26 because defendant had been given over six months to
accept the offer, well past the deadline established in the scheduling order, and in the absence of
an indication that defendant would accept the offer, the prosecutor’s office had spent significant
time in the previous week preparing for trial.
This does not appear to be an instance in which either party acted in bad faith. During
this exchange, neither party directly disputed the other party’s version of events or accused the
other party of being less than forthright regarding his understanding of the sequence of events
involved in the plea and time extension negotiations. In particular, the prosecutor did not dispute
defense counsel’s assertion that defendant was informed that he could accept the plea agreement
on July 26; he merely stated that his understanding was that defendant would accept or reject the
plea offer at some point prior to two days before trial.
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Notably, the trial court record does not contain an order extending the time period in
which defendant could accept the plea agreement, nor does defense counsel provide evidence
from the record to support his assertions that the trial court judge told him in an ex parte
conversation on July 19 that defendant could accept the plea agreement on July 26. However,
the judge did not respond or otherwise comment on the record regarding defense counsel’s
claims that this ex parte conversation occurred, although he would have known if defense
counsel’s assertions that they engaged in an ex parte communication were true. Accordingly, a
question of fact exists regarding whether the judge agreed in an ex parte communication with
defense counsel to take defendant’s plea on July 26.
The question whether this ex parte communication occurred is probative of whether the
trial court abused its discretion when it prohibited defendant from accepting the plea offer on
July 26. If the judge did not agree in an ex parte communication to take the plea on July 26, then
the trial court acted within its discretion when it refused to take defendant’s plea, because
defendant attempted to enter the plea after the deadline established by the scheduling order. A
trial court has the discretion to reject a tardy plea agreement proffered in violation of a
scheduling order. Grove, supra at 469. There is “no absolute right to have a guilty plea
accepted.” Id. at 470 (citation omitted). Assuming the judge did not agree to take defendant’s
plea in the ex parte communication with defense counsel, the trial court did not abuse its
discretion when it chose not to take defendant’s plea. The court’s scheduling order set a deadline
for the submission of any plea agreements. Defendant did not indicate a willingness to accept
the offer until over six months after this deadline expired. Given this passage of time and the
court’s authority to manage its docket, the court’s decision under these circumstances would be
within “the range of reasonable and principled outcomes.”2
However, if the judge told defense counsel that he would permit defendant to accept the
plea agreement on July 26, then the trial court abused its discretion when it refused to take the
plea on that date. If the judge told defense counsel that he would take defendant’s plea if it were
given by July 26, then defendant had the right to take the judge at his word and wait until this
time to enter the plea. Although the trial court has the discretion to accept or reject a plea offered
in violation of the scheduling order, Grove, supra at 469, it does not have the discretion to
communicate to a party its decision to permit the late acceptance of a plea agreement and then
renege on this decision without warning. Under these circumstances, the trial court’s decision
not to take defendant’s plea would constitute an abuse of discretion, and we would direct the trial
court to give defendant the opportunity to accept the plea agreement.
2
Defendant argues that the policies of docket control and eliminating unjustified delay and
expense are not furthered in this case because the trial was succinct, the number of witnesses
low, and a trial would have been avoided by accepting his plea. Similar concerns of docket
management and elimination of delay and expense were addressed by our Supreme Court in
Grove when it affirmed a trial court’s exercise of discretion to reject a defendant’s plea. See
Grove, supra at 464-470. The Grove Court reasoned that the trial court’s rejection of a plea
offered “the day before trial” furthered these policies, id. at 470-471, presumably by encouraging
criminal defendants to timely accept or reject plea bargains according to applicable scheduling
orders.
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Accordingly, the resolution of the question of fact regarding whether the trial court
agreed, in an ex parte communication with defense counsel on July 19, to permit defendant to
accept the plea agreement at the July 26 hearing is necessary to determine whether the trial court
abused its discretion when it refused to take the plea on this date. Therefore, we remand to the
trial court for a factual finding regarding whether this ex parte communication occurred. If this
communication did not occur, then the trial court acted within its discretion when it chose not to
take defendant’s plea. If this communication occurred, however, the trial court’s failure to abide
by its earlier agreement to take defendant’s plea on July 26 constitutes an abuse of discretion,
entitling defendant to an opportunity to accept the plea agreement.
Finally, we note that, although ex parte communications between a judge and counsel
regarding a case before the court are not permitted under MRPC 3.5, the prosecutor did not
allege that either the judge or defense counsel committed misconduct by engaging in this
communication. Further, this does not appear to be a situation in which defense counsel
attempted to engage in an ex parte communication with the judge for a malicious purpose or to
obtain a tactical advantage. Notably, defense counsel apparently did not attempt to directly
communicate with the judge, but allegedly talked with the judge regarding the plea agreement
because the judge happened to answer the main phone line to his chambers. We do not question
that the parties and court believed that they were merely expediting the process of negotiating the
extension of time for entering the plea agreement by relying on oral, ex parte conversations to
communicate their positions instead of undertaking the more time-consuming process of making
a record.
III. Prosecutorial Misconduct
Defendant next argues that the prosecutor’s various references to the “undisputed”
evidence during closing argument violated his Fifth Amendment privilege against selfincrimination. In particular, defendant contends that the prosecutor’s argument that the evidence
was unrefuted would be proper only if someone other than defendant could have contradicted the
evidence. He reasons that, because the prosecutor’s comments during oral argument related to
the evidence of his intent and he was the only individual competent to testify regarding his
intent, he was impermissibly denied his privilege against self-incrimination. We disagree.
Because defendant’s counsel failed to challenge the prosecution’s closing argument at
trial, this issue is unpreserved. We review unpreserved constitutional error for plain error
affecting defendant’s substantial rights. People v Pipes, 475 Mich 267, 278; 715 NW2d 290
(2006). To establish plain error, a defendant must demonstrate that “(1) error occurred, (2) the
error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the
defendant.” Id. at 279. If plain error is established, “reversal is only warranted ‘when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings . . . .’” Id.,
quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
A prosecutor’s comments must be examined in context, and their propriety depends on
the particular facts of the case. People v Callon, 256 Mich App 312, 330; 662 NW2d 501
(2003). Prosecutors are generally afforded “great latitude” in their closing arguments. People v
Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). The Fifth Amendment right against selfincrimination precludes prosecutors from commenting on a defendant’s failure to testify. People
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v Fields, 450 Mich 94, 108-109; 538 NW2d 356 (1995). Regardless, “[a] prosecutor’s argument
that inculpatory evidence is undisputed does not constitute improper comment.” Callon, supra at
331. Further, “[i]t is permissible for a prosecutor to observe that the evidence against the
defendant is uncontroverted or undisputed even if the defendant has failed to call corroborating
witnesses.” People v Godbold, 230 Mich App 508, 521; 585 NW2d 13 (1998).
Defendant fails to demonstrate that the prosecutor denied him either a fair trial or
otherwise violated his right against self-incrimination by repeatedly referring to the evidence as
“unrefuted.” The prosecutor’s argument proceeded in three phases: discussion of count 1,
discussion of count 2, and a general summary of his case. When presenting his argument
regarding count 1, the prosecutor made various specific remarks concerning the “undisputed”
evidence. He argued that it was “unrefuted” that defendant “punched” Jefferies “over, and over,
and over, and over, and over again in the face and head.” He argued that the attack itself
occurred “beyond a reasonable doubt” and had not been refuted. And he argued that it was
“unrefuted” that Jefferies did not want to be “punched in the face.” None of these statements
concern defendant’s intent in committing the assault. Rather, they concern the actual
circumstances of the assault, as described by various prosecution witnesses. Defendant’s
suggestion that these comments related to his “intent” is inaccurate. Regardless, defendant could
have offered evidence besides his own testimony (such as the testimony of Freeman or of an
inmate or another corrections officer who might have witnessed the attack) to contradict the
prosecution’s witnesses on this matter.
Defendant did not dispute that all elements of count 2, assault of a prison employee, were
established. Further, because defendant was convicted on count 1, he was not convicted of this
offense. Accordingly, the propriety of the prosecutor’s statements concerning the “unrefuted”
nature of the evidence supporting a conviction on count 2 is irrelevant because defendant was not
prejudiced by these comments.
Defendant construes the two remaining portions of the prosecution’s argument as
commenting on his intent. At the close of his argument regarding count 1, the prosecutor argued
as follows:
[T]he proof is unrefuted for that charge. Count one, assault with intent to
do great bodily harm less than murder. It’s unrefuted. Whatever Freeman did has
no bearing. Absolutely zero bearing. What defendant did has every single
bearing in this trial. Only what he did has bearing. And what he did was
repeatedly try to harm Eric Jefferies. And when he saw the opportunity that the—
the Jeffer—excuse me, Freeman was holding off the other officers, he continued.
And not once did he offer any sort of compassion, help, human kindness to that
man. Not once. That’s proven beyond a reasonable doubt, it’s unrefuted.
At the close of his entire presentation, the prosecutor summarized his argument and its most
salient points as follows:
It’s not a movie. It’s not ‘Saving Private Ryan’, it’s not an actor getting
up tonight, getting off the floor, being okay. This is real life. This was real
violence. This was not a depiction. Eric Jefferies suffered. He still suffers. He’s
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got post traumatic stress. And we all can look over and see the person who
caused his suffering, on purpose. He’s sitting right there.
I have proven to you through each and every witness, unrefuted, each and
every witness, all the elements of count one, assault with intent to do great bodily
harm—intent. Doesn’t have to, just try. Less than murder. And assault on a
prison employee.
I put the case before you. I put the case before you with all the evidence
that I have submitted to you, and I ask you to do what the evidence shows. I ask
you to hold the person who did this predatory attack responsible, guilty for each
and every one of his actions. For count one, for count two. I ask you to do that
because the evidence asks you to do that.
In both statements, the prosecution argued that evidence established each element
necessary for the jury to convict defendant for committing assault with intent to commit great
bodily harm. The prosecutor made the first remark when discussing both Freeman and
defendant’s conduct. Besides making a general assertion that the evidence established each
element of count 1, the prosecutor did not discuss defendant’s intent when assaulting Jefferies.
The prosecutor made the second remark in the context of making a general statement arguing
that the prosecution had met its burden of proof. Again, he did not specifically refer to
defendant’s intent when assaulting Jefferies when making this comment. These were general
statements asserting that the prosecution had met its burden of proof. Given the broad latitude
afforded prosecutors in closing argument, Bahoda, supra at 282, these comments cannot be said
to have concerned defendant’s intent.3
IV. Presence of Handcuffs and Leg Restraints
Finally, defendant argues that he was denied a fair trial because the trial court presented
him to the jury in handcuffs and leg restraints and chose to keep him in leg restraints throughout
the trial. We disagree. Because the trial court record does not indicate that defense counsel
requested that defendant’s handcuffs and leg restraints be removed before defendant was initially
presented to the jury, the question whether this initial interaction between defendant and the jury
was proper is unpreserved. Further, defense counsel requested that defendant’s handcuffs, but
not his leg irons, be removed. Accordingly, defendant’s claim that the trial court erred when it
required that his leg irons remain on for the duration of the trial is also unpreserved. Because
defendant failed to raise these issues below, we review for plain error affecting defendant’s
substantial rights. Pipes, supra at 278-279.
3
Moreover, jurors are presumed to follow a court’s instructions. People v Graves, 458 Mich
476, 486; 581 NW2d 229 (1998). If any error occurred in this case, it would have been mitigated
by the following instructions given by the trial court to the jury: “[D]efendant has the absolute
right not to testify. When you decide the case, you must not consider that fact, that he did not
testify. It must not affect your verdict in any way.”
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“Freedom from shackling is an important component of a fair trial.” People v Dixon, 217
Mich App 400, 404; 552 NW2d 663 (1996). Although freedom from shackling is rooted in a
defendant’s due process rights, Deck v Missouri, 544 US 622, 626-629; 125 S Ct 2007; 161
L Ed 2d 953 (2005), “[t]he right of a defendant to appear at trial without any physical restraints
is not absolute.” People v Banks, 249 Mich App 247, 256; 642 NW2d 351 (2002). Restraints
are permitted “to prevent the escape of the defendant, to prevent the defendant from injuring
others in the courtroom, or to maintain an orderly trial.” Dixon, supra at 404.
Although defendant apparently was in handcuffs and leg irons during voir dire, the
prospective jurors were informed, and the parties did not dispute, that defendant was incarcerated
at the time he committed the assault on Jefferies and remained incarcerated at the time of trial.
Further, the parties did not dispute that defendant assaulted Jefferies; the only issue disputed at
trial was whether he intended to commit great bodily harm at the time of the assault. In addition,
testimony from a corrections officer assigned to transport defendant to court demonstrated that
defendant was a security threat. On the basis of this information, the trial court could have
reasonably concluded that defendant demonstrated a lack of respect for authority and had a
tendency toward violence, see id. at 405, and, therefore, that he posed a threat to others in the
courtroom and to general courtroom “order.” Accordingly, the trial court did not plainly err
when it failed to order removal of defendant’s handcuffs and leg irons before voir dire or to order
removal of defendant’s leg irons for the duration of the trial.
Remanded for further proceedings consistent with this opinion.
jurisdiction.
We do not retain
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Donald S. Owens
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