PEOPLE OF MI V SAM JUNIOR IVY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 27, 2007
Plaintiff-Appellee,
v
No. 271789
Genesee Circuit Court
LC No. 06-011762-FC
SAM JUNIOR IVY,
Defendant-Appellant.
Before: Murray, P.J., and Hoekstra and Wilder, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree home invasion, MCL
750.110a(2), and was sentenced to 95 months to 20 years in prison. Defendant appeals as of
right. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Defendant argues that he was denied the effective assistance of counsel. He asserts that
his attorney had no sound trial strategy in allowing the entire transcript of his interrogation to be
presented to the jury. We disagree.
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Review of a
claim of ineffective assistance involves a determination (1) whether counsel’s performance was
objectively unreasonable, and (2) whether the defendant was prejudiced by the defective
performance. Id. To establish prejudice, a defendant must show that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been different.
People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). Decisions on what evidence to
present or witnesses to call are presumed to be matters of trial strategy. Rockey, supra. We will
not substitute our judgment on matters of trial strategy, nor will we assess counsel’s performance
with the benefit of hindsight. Id.
Defendant maintains that the videotape buttressed the credibility of Sir Antonio Crockett,
who testified that he, defendant, and two other men broke into George Thomas’ home, that
Thomas was assaulted, and that they stole Thomas’ money. Thomas was able to identify only
Crockett as being among the perpetrators. Crockett was permitted to plead to a charge of
unarmed robbery in exchange for his testimony against defendant. During his interrogation,
defendant admitted that he was present during the incident. However, he said that he believed
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that he and the others were going to Thomas’ house so that Crockett could borrow some money,
and that he left when he saw Thomas being assaulted. At another point, defendant said that he
“chickened out.”
During defendant’s interrogation, the officer indicated that a deal would be given to those
persons who admitted involvement and expressed remorse. He subsequently said that everyone
was getting a polygraph, and that he would know who was lying and who was not lying. In
conjunction with this statement, the officer indicated that he had control of giving defendant a
break until those administering the polygraph got involved, and that he would give a break to
those who talked with him. Defendant argues that since the jury knew that Crockett ultimately
got a deal and expressed remorse on the stand, the jury might have deduced that Crockett passed
a polygraph, thereby bolstering his credibility. Defendant asserts that any strategy involved with
showing the videotape was unreasonable and constituted ineffective assistance. Defense counsel
explained that he wanted the jury to see the entire videotape because defendant ultimately
acknowledged his presence, but otherwise consistently maintained his innocence. Counsel
wanted to contrast Crockett as an opportunist who, unable to credibly maintain that he was not
present at the scene, chose instead to blame others and repeatedly changed his story.
Defense counsel aptly impeached Crockett, bringing out that Crockett’s testimony was in
part inconsistent with his preliminary examination testimony, which was also inconsistent with
his initial statement to the police. There was no testimony that Crockett passed a polygraph. It
appears that the defense strategy of discrediting Crockett was successful, because the jury
acquitted defendant of armed robbery and possession of a firearm during the commission of a
felony, notwithstanding the fact that Crockett testified that defendant had a gun and was actively
involved in the robbery itself. The jury apparently believed that defendant was telling the truth.
Defendant claims that regardless of the acquittals, the jury had to believe Crockett’s
claim that defendant knew of the plan to rob Thomas in order to convict him of first-degree
home invasion. See MCL 750.110a(2). However, defendant admitted during the interrogation
that he entered the home, but then said that he “chickened out.” At another point, defendant said
that he did not know that an armed robbery was planned, and that he left when he saw the victim
being assaulted. Based on defendant’s statement that he “chickened out,” the jury could have
inferred that defendant had unlawful intent upon entry. Even if the videotape had been redacted
to omit references to polygraphs, there is no indication that counsel could have prevented the
jury from learning of defendant’s admission. The jury apparently rejected Crockett’s version of
events, but convicted defendant of first-degree home invasion based on defendant’s own
admission. Counsel’s strategy of discrediting Crockett was successful. Defendant’s claim of
ineffective assistance, based on the manner in which counsel chose to prove Crockett’s lack of
credibility, must fail.
Affirmed.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
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