PEOPLE OF MI V JERRY FARLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 6, 2007
Plaintiff-Appellee,
v
No. 272782
Wayne Circuit Court
LC No. 06-003781-01
JERRY FARLEY,
Defendant-Appellant.
Before: Cavanagh, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions of discharge of a firearm intentionally
aimed without malice, MCL 750.234, felon in possession of a firearm, MCL 750.224f, and
possession of a firearm during the commission of a felony, second offense, MCL 750.227b,
entered after a bench trial. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant was convicted as a result of an altercation wherein his stepson was wounded in
the leg. Defendant’s wife testified that defendant and her son engaged in a physical fight, and
that defendant shot her son.
The spousal privilege provides that a spouse may not be examined in a criminal
prosecution brought against the other spouse without the consent of the testifying spouse, unless
certain conditions exist. MCL 600.2162(2).1
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Counsel must have made errors so serious that he was not performing as the “counsel”
guaranteed by the federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20;
People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Counsel’s deficient performance
must have resulted in prejudice. To demonstrate the existence of prejudice, a defendant must
1
A prior version of MCL 600.2162(2) placed waiver of the privilege in the hands of the spouse
against whom criminal proceedings had been brought, instead of in the hands of the testifying
spouse. 182 PA 2000 amended the statute, and placed the decision with the testifying spouse.
-1-
show a reasonable probability that but for counsel’s error, the result of the proceedings would
have been different. Id. at 600.
Defendant argues that he was denied the effective assistance of counsel because counsel
failed to assert the privilege to prevent his wife from testifying against him. Defendant
emphasizes that his wife provided the only direct testimony that he possessed a gun2 and
contends that if his wife had not been permitted to testify, it is reasonably probable that the result
of the proceedings would have been different.
Defendant’s argument is based on MCL 600.2162(2) as it read prior to being amended.
However, the decision to testify is held by the testifying spouse. Defendant has pointed to
nothing in the record that demonstrates that his wife would have refused to waive the privilege if
given the opportunity to do so. Counsel is not required to raise a meritless objection. People v
Kulpinski, 243 Mich App 8, 27; 620 NW2d 537 (2000). Defense counsel did not render
ineffective assistance. People v Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
2
This statement is not accurate. The victim testified that defendant possessed a gun, and shot
him with it.
-2-
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