PEOPLE OF MI V JOSEPH ERBY FREEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 15, 2008
Plaintiff-Appellee,
v
No. 272252
Ionia Circuit Court
LC No. 05-013109-FC
JOSEPH ERBY FREEMAN,
Defendant-Appellant.
Before: Donofrio, P.J., and Sawyer and Murphy, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions of assault with intent to murder, MCL
750.83, and two counts of assault with intent to do great bodily harm less than murder, MCL
750.84. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 50 to 75 years’
imprisonment for the assault with intent to murder conviction and to 6 to 10 years’ imprisonment
for the other convictions, the sentences to be served concurrently. We affirm. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
Defendant’s convictions arise from an incident that occurred on October 3, 2004, while
he was incarcerated at the Hanlon Correctional Facility. Defendant and another inmate at the
facility, Quincy Bland, brutally attacked a corrections officer, Eric Jefferies. Defendant used a
padlock concealed inside a sock to beat Jefferies on and about the head. Defendant struck two
other corrections officers who came to Jefferies’ aid, Robert Heuer and Michael Manley, with
the lock-and-sock device, and indicated to them that he and Quincy intended to kill Jefferies.
Defendant also threatened two additional responding officers with the device. Dismantled pieces
of a padlock bearing defendant’s inmate number were found in the unit’s card room, to which
defendant and Quincy had retreated following the assault. Jefferies sustained numerous injuries
to his head, face, and mouth, including a potentially serious maxilla fracture. Heuer and Manley
also sustained several injuries requiring medical treatment.
On appeal, defendant first argues that the trial court abused its discretion in denying his
request for the appointment of substitute counsel. This Court reviews a trial court’s decision
regarding substitute counsel for an abuse of discretion. People v Traylor, 245 Mich App 460,
462; 628 NW2d 120 (2001). No abuse of discretion occurs when the trial court chooses an
outcome that falls within the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003).
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“ ‘An indigent defendant is guaranteed the right to counsel; however, he is not entitled to
have the attorney of his choice appointed simply by requesting that the attorney originally
appointed be replaced.’ ” People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). A
substitution of appointed counsel will be granted only where there is a showing of good cause
and the substitution will not unreasonably disrupt the judicial process. Traylor, supra at 462.
“ ‘Good cause exists where a legitimate difference of opinion develops between a defendant and
his appointed counsel with regard to a fundamental trial tactic.’ ” Mack, supra at 14.
Defendant’s vague and generalized claims concerning the inadequacies of appointed
counsel do not demonstrate the existence of a difference of opinion concerning a fundamental
trial tactic. See Traylor, supra at 463. Defendant stated that counsel had failed to file motions
on his behalf, but he asserted no bases for these (unspecified) motions. Counsel was not required
to file frivolous motions, and his decision not to file certain motions “clearly falls within the
categories of professional judgment and trial strategy that are matters entrusted to the attorney”
and did not warrant appointment of substitute counsel. Traylor, supra at 463. Similarly,
counsel’s “rephrasing” of defendant’s questions for witnesses and his decisions regarding how or
whether to challenge the prosecution’s evidence constituted matters of trial strategy and did not
constitute legitimate bases for substitution of appointed counsel. Mack, supra at 14.
Furthermore, although defendant complained below that trial counsel had failed to obtain rulings
on several motions, counsel had successfully sought adjournment of those motions pending
further discovery, and the trial court ultimately ruled on the motions; thus, defendant suffered no
prejudice. See Traylor, supra at 463. Nor did defendant’s unsubstantiated allegations that trial
counsel was “unprepared” constitute good cause to appoint substitute counsel. See id.
Defendant next argues that counsel’s failure to secure the testimony of several alibi
witnesses by timely filing a notice of alibi defense denied him his right to the effective assistance
of counsel. A defendant claiming ineffective assistance of trial counsel is required to make a
motion in the trial court for a new trial or for a Ginther1 hearing in order to preserve the issue for
review. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19
(2000). Because defendant failed to move for a new trial or an evidentiary hearing below, his
ineffective assistance of counsel claim is limited to the existing record. People v Thomas, 260
Mich App 450, 456; 678 NW2d 631 (2004).
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that
counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by
the Sixth Amendment; i.e., that his performance fell below an objective standard of
reasonableness, and (2) that the deficient performance prejudiced the defense; i.e., that but for
counsel’s errors, there is a reasonable probability that the result of the proceeding would have
been different. Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674
(1984); People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002).
This Court will not second guess counsel’s trial tactics. People v Dixon, 263 Mich App
393, 398; 668 NW2d 308 (2004). Trial counsel’s failure to call a particular witness is presumed
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People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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to be sound trial strategy. People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997). “[T]he
failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense.” Dixon, supra. A substantial defense is one that might have
made a difference in the outcome of the trial. People v Kelly, 186 Mich App 524, 526; 465
NW2d 569 (1990).
Defendant has failed to demonstrate that he was deprived of a substantial defense by
counsel’s failure to secure the testimony of the proposed alibi witnesses. The trial court noted
several times that defendant’s attempts to obtain interviews of these (and more than 100 other)
inmates were unsubstantiated by any indication that they had any relevant information. The
record contains no indication that any of the proposed witnesses saw the assault take place or that
they would testify in accordance with defendant’s alibi theory. Indeed, several of the testifying
officers reported that they did not see any other inmates in the area of the assault; further, the
cells in the immediate area of the incident were secured units, and an inmate in one of those cells
would not have been able to see anything going on in the hall, other than what he could see
through his food slot or the crack under the door. Defendant presented absolutely no evidence
regarding the whereabouts of the proposed witnesses at the time of the occurrence or their ability
to provide any useful testimony. In light of the identification of defendant as the assailant by
several witnesses and the additional strong evidence against him, he cannot establish that the
proposed witnesses’ testimony would have made a difference in the outcome of the trial or that
he was prejudiced by counsel’s alleged deficient performance.
Defendant next claims that he was denied his constitutional right to a speedy trial. We
review defendant’s claim by balancing the following factors: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the
defendant. Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972); People v
Williams, 475 Mich 245, 261-262; 716 NW2d 208 (2006).
The delay in this case was approximately 18 months. Following a delay of 18 months or
more, prejudice is presumed. Williams, supra at 262. “Under the Barker test, a ‘presumptively
prejudicial delay triggers an inquiry into the other factors to be considered in the balancing of the
competing interests to determine whether a defendant has been deprived of the right to a speedy
trial.’ ” Id., quoting People v Wickham, 200 Mich App 106, 109-110; 503 NW2d 701 (1993).
Turning to the second Barker factor, this Court considers the time spent adjudicating
motions filed by defendant, as well as adjournments requested by defense counsel. People v
Cain, 238 Mich App 95, 113; 605 NW2d 28 (1999). Delays inherent in the court system, such as
the two-and-one-half-month delay between defendant’s October 2004 arrest and the filing of the
felony information in January 2005, although technically attributable to the prosecution, “are
given a neutral tint and are assigned only minimal weight in determining whether a defendant
was denied a speedy trial.” Wickham, supra at 111. Although trial was scheduled to begin on
April 21, 2005, the parties stipulated to a dismissal on the basis of the MDOC’s failure to comply
with the court’s discovery orders; thus, the three-month delay between the filing of the
information and the April 6, 2005, dismissal without prejudice is equally attributable to
defendant and the prosecution. The five-month delay between the dismissal and the
prosecution’s reinstatement of the charges on September 9, 2005, is not attributed to either party,
because there was no charge pending against defendant during that time. Wickham, supra at 111.
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The remaining eight months of delay are largely attributable to adjournments granted at
defendant’s request and litigation of his various motions. The scheduled January 11, 2006, trial
date was adjourned at defendant’s request for the purpose of continuing discovery. Several
defense motions were reserved at his request pending further discovery. Two weeks before the
rescheduled trial date of March 22, 2006, defendant again obtained an adjournment and
reservation of his motions for the purpose of continuing discovery, and trial was rescheduled for
May 3, 2006. It is evident that none of the delay following the reinstatement of charges is
attributable to the prosecution.
We disagree with defendant’s suggestion that he is not responsible for the delay resulting
from the adjournments that he requested because they were based, “at least in part,” on the
MDOC’s failure to turn over various records. To the extent that the MDOC did not produce the
information defendant sought, there is simply no basis for holding the prosecution responsible
for the MDOC’s conduct. Defendant was seeking information that was not within the
prosecution’s control or possession. See People v Leo, 188 Mich App 417, 427; 470 NW2d 423
(1991) (“The prosecutor’s office is not required to undertake discovery on behalf of a
defendant.”). Moreover, the record reveals that the prosecution and the MDOC did everything
possible to comply with defendant’s discovery requests, which, as the trial court noted, were
little more than a “fishing expedition.” On the whole, it is apparent that more than half the 18month period of delay is attributable to defendant and that the balance of the delay was not
substantially the fault of the prosecution. Cain, supra at 113.
The third factor, whether defendant asserted his right to a speedy trial, also weighs
against defendant. Defendant repeatedly obtained adjournments of his speedy trial motion,
thereby directly causing the additional delay and resulting in the motion not being addressed
until the day before trial. See People v Collins, 388 Mich 680, 693-694; 202 NW2d 769 (1972)
(“[the defendant’s] failure to assert a demand for speedy trial [until the day before trial] was of
his own choosing and as a result of his own activity and must be weighed heavily against him.”).
Turning to the fourth Barker factor, “[t]here are two types of prejudice which a defendant
may experience, that is, prejudice to his person and prejudice to the defense.” Collins, supra at
694. Defendant does not assert that he suffered prejudice to his person, as he was already
incarcerated for a different offense. Instead, defendant argues that his ability to present an alibi
defense was hampered by his not having the assistance of counsel or an investigator during the
five-month period between the dismissal of the original charges and their reinstatement.
However, there is absolutely no record evidence—despite much wrangling below over the
necessity of a private investigator to interview 180 inmates and over the MDOC’s responsibility
to provide information regarding those inmates—demonstrating the existence of an alibi defense
or that any of the inmates in question had any knowledge of the subject events, let alone any
exculpatory knowledge. Defendant’s vague and unsupported assertion that the assistance of
counsel or an investigator following dismissal of the original charges was crucial to his alibi
defense is not sufficient to establish prejudice. A lengthy delay, without more, does not rise to
the level of prejudice. See Williams, supra at 264.
Although the 18-month delay in this case is presumptively prejudicial, the trial court did
not err in ruling that defendant was not denied his right to a speedy trial. The majority of the
delay is directly attributable to defendant, whose repeated requests for adjournments resulted in
his speedy-trial motion being considered only the day before trial. Defendant has failed to
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demonstrate that the delay was injurious to his defense. Accordingly, the trial court properly
denied his motion to dismiss.
Defendant’s final argument on appeal is that resentencing is required because the trial
court adopted the recommendation of the MDOC in its presentence investigation report (PSIR).
Defendant contends that because the MDOC employed the victims in this case, a “conflict of
interest” exists based on the MDOC’s role in recommending defendant’s sentence. Because
defendant did not preserve this issue by raising it below, it is reviewed for plain error affecting
his substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People
v McLaughlin, 258 Mich App 635, 669-670; 672 NW2d 860 (2003).
As required by MCL 771.14, an MDOC probation officer prepared a PSIR containing the
relevant sentencing guidelines information and a recommended sentence based on those
guidelines. “A sentencing judge must use a presentence report.” People v Hemphill, 439 Mich
576, 579; 487 NW2d 152 (1992), citing MCL 771.14(1); MCR 6.425(A). A defendant may not
waive this legislative requirement. Hemphill, supra at 580. The trial court, having reviewed the
information set forth in defendant’s PSIR, imposed the recommended minimum sentence of 50
years’ imprisonment, a sentence well within the guidelines’ minimum range of 22.5 to 75 years.
“If the trial court’s sentence is within the appropriate guidelines range, the Court of Appeals
must affirm the sentence unless the trial court erred in scoring the guidelines or relied on
inaccurate information in determining the defendant’s sentence.” Babcock, supra at 261; see
MCL 769.34(10).
Defendant does not dispute that his sentence fell within the guidelines range; nor does he
contend that the guidelines were improperly scored, that the PSIR contained inaccurate
information, or that the trial court, which was solely responsible for imposing sentence, harbored
bias against him. Consequently, his claim is “outside the limited scope of review” provided for
by MCL 769.34(10), McLaughlin, supra at 671, and he has failed to establish plain error that
affected his substantial rights, id. at 670.
Affirmed.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ William B. Murphy
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