PEOPLE OF MI V CLAUDE EDWARD MORRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 3, 2008
Plaintiff-Appellee,
v
No. 277148
Wayne Circuit Court
LC No. 06-008211-01
CLAUDE EDWARD MORRIS,
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of second-degree murder, MCL
750.317, assault with intent to commit murder, MCL 750.83, and possession of a firearm during
the commission of a felony, MCL 750.227b. Defendant was sentenced to 15 to 30 years’
imprisonment for the murder and assault convictions, and two years’ imprisonment for the
felony-firearm conviction. We affirm.
I. Basic Facts
Defendant was seen walking in a residential area of Detroit several times one day. He
spoke with the victims twice during this time and left the area. In the evening, defendant
returned carrying a gun. He shot one victim, who was sitting in the driver’s seat of his truck,
twice in the head at close range, killing him. Defendant then shot the other victim, who was
sitting on the back bumper of another truck, twice in the chest, and this victim survived. At trial,
defendant asserted that he had never spoken to either of the victims. Defendant explained that he
was walking home from a gas station when some men approached him and one man pushed him.
Defendant claimed that the men attempted to rob him, and he shot them.
II. Waiver of Right To Jury Trial
Defendant argues that his jury trial waiver was coerced because he was never informed of
the nature of the right he was relinquishing and was simply handed a waiver form and instructed
to sign it. We disagree. We review for clear error a trial court’s determination regarding the
validity of a defendant’s waiver of his right to a jury trial. People v Leonard, 224 Mich App 569,
595; 569 NW2d 663 (1997); see also People v Williams, 275 Mich App 194, 196-197; 737
NW2d 797 (2007).
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At the outset, we note that defendant relies on an ex parte affidavit attached to his
appellate brief. However, this document is not part of the lower court record and constitutes an
improper expansion of the record on appeal. MCR 7.210(A)(1); People v Eccles, 260 Mich App
379, 384 n 4; 677 NW2d 76 (2004). Therefore, we will not consider this affidavit in resolving
the issues raised in this appeal.
A criminal defendant is guaranteed the right to a jury trial. US Const, Ams VI, XIV;
Const 1963, art 1, § 20. A criminal defendant may, with the prosecutor’s consent and the trial
court’s approval, waive this right and “be tried before the court without a jury.” MCR 6.401.
MCR 6.402(B), which governs the waiver of a jury trial, provides as follows:
Before accepting a waiver, the court must advise the defendant in open
court of the constitutional right to trial by jury. The court must also ascertain, by
addressing the defendant personally, that the defendant understands the right and
that the defendant voluntarily chooses to give up that right and to be tried by the
court. A verbatim record must be made of the waiver proceeding.
There is a presumption that the waiver was knowing, voluntary, and intelligent if the record
shows that the trial court complied with the court rule. People v Mosly, 259 Mich App 90, 96;
672 NW2d 897 (2003).
Before the trial in the instant case began, defense counsel indicated that he had an
opportunity to speak with defendant and defendant understood that he had an absolute right to a
jury trial. Defense counsel further asserted that defendant understood that the effect of waiving
that right meant that the trial court, instead of a jury of 12 people from the community, would
decide his guilt or innocence. Defense counsel stated that defendant had executed the waiver
form. When questioned by the trial court, defendant indicated that he wished to waive his right
to a jury trial and it was his signature that appeared on the waiver form. Defendant denied that
he had been threatened or given promises to get him to surrender his rights. Because the trial
court advised defendant of his right to a jury trial and ascertained that he understood that right
and voluntarily relinquished it, the trial court complied with the court rule, and defendant has
failed to overcome the presumption that his waiver was knowing, voluntary, and intelligent. See
Mosly, supra at 96. The trial court did not commit clear error in accepting defendant’s waiver of
his right to a jury trial.
III. Ineffective Assistance of Counsel
Defendant raises several allegations of ineffective assistance of counsel. We are not
persuaded that counsel was ineffective.
“‘Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.’” People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004),
quoting People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Because no Ginther1
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People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973).
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hearing has been conducted, our review is limited to mistakes apparent on the record. People v
Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
To establish that counsel was ineffective, defendant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness and counsel’s representation so
prejudiced defendant that it deprived him of a fair trial. People v Pickens, 446 Mich 298, 302303; 521 NW2d 797 (1994); People v Moorer, 262 Mich App 64, 75-76; 683 NW2d 736 (2004).
Regarding the prejudice requirement, defendant must show 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); Moorer, supra at 75-76. “[T]he defendant must
overcome the presumption that the challenged action might be considered sound trial strategy.”
People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).
Originally, defendant was scheduled to be tried before a jury, and his initial lead counsel
began conducting jury selection. Co-counsel, who was more experienced with capital murder
cases and jury trials, initially assisted by “sitting second chair”. The trial court observed that
lead counsel was not quite comfortable with voir dire and struggled with her questions to the
veniremembers. The trial court learned that it was lead counsel’s first capital murder trial and
indicated that it was willing to adjourn the trial to afford her additional time to prepare. Because
co-counsel had been absent for a portion of voir dire, he was not prepared to assume the role as
lead counsel with the panel that had been selected at that point and requested an adjournment.
Co-counsel became defendant’s lead counsel, and defendant’s original lead counsel agreed to
continue representing defendant in a secondary capacity. Defendant indicated that he wanted her
to continue to assist with his defense and he had no objection to co-counsel assuming the lead
counsel role. Several months later, defendant waived his right to a jury trial, and the trial court
conducted a bench trial, during which defendant’s former lead counsel questioned some of the
witnesses.
Defendant first claims that defense counsel was ineffective in coercing defendant to
waive his right to a jury trial and that making this decision at the last minute was not a
reasonable strategy. Given our determination, supra, that the trial court properly determined that
defendant’s waiver was knowing, voluntary, and intelligent, defendant has failed to show that the
waiver was coerced or counsel was ineffective in advising defendant to waive his right to a jury
trial.
Defendant also argues that, because his original lead counsel was allowed to question
witnesses after relinquishing her role as lead counsel, his right to a fair trial was prejudiced.
Defendant asserts that the trial court recognized that his initial lead counsel was not able to
adequately represent defendant. Defendant mischaracterizes the trial court’s comments. The
trial court never stated that defendant’s initial lead counsel was “in way over her head” or unable
to adequately represent defendant. Rather, the trial court merely observed her lack of experience
and, given the seriousness of the charges against defendant, offered her the opportunity to have
additional time to prepare for trial.
Further, defendant has failed to illustrate how counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. See Pickens, supra at
302-303; Moorer, supra at 75-76. Although defendant insists that allowing his original counsel
to question some witnesses was prejudicial, defendant fails to identify any error that
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demonstrates prejudice. An appellant may not simply announce a position or assert an error and
leave it to this Court to “discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” People v Kevorkian, 248 Mich App 373, 388-389; 639 NW2d 291 (2001), quoting
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Therefore, defendant has failed to
overcome the presumption that counsel was effective in questioning witnesses. See LeBlanc,
supra at 578.
Defendant asserts that there is a “strong likelihood that [he] was sentenced on incorrect
information” and his sentence could theoretically be too harsh because counsel failed to review
his presentence investigation report (PSIR) before sentencing and defendant was not given a
chance to verify the information contained therein. A defendant is entitled to be sentenced on
the basis of accurate information, People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006),
and be given an opportunity to review his PSIR before sentencing, Morales v Parole Bd, 260
Mich App. 29, 46; 676 NW2d 221 (2003); see also MCL 777.14(5). Counsel indicated on the
record at sentencing that she and defendant had reviewed the PSIR and the information contained
therein was accurate. Further, defendant has failed to identify any errors in the PSIR or articulate
how any errors would have a determinative effect on his sentence. See People v McAllister, 241
Mich App 466, 474-475; 616 NW2d 203 (2000) (stating that, if inaccuracies in the PSIR would
have no determinative effect on the defendant’s sentence, any error in the trial court’s failure to
respond to allegations of inaccuracies is harmless). An appellant may not simply announce a
position or assert an error and leave it to this Court to “discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for authority either to
sustain or reject his position.” Kevorkian, supra at 388-389, quoting Mitcham, supra at 203.
Therefore, defendant has failed to overcome the presumption that counsel was effective. See
LeBlanc, supra at 578. Further, we are not persuaded that it is necessary to remand for a Ginther
hearing on any of defendant’s ineffective assistance of counsel challenges.
Affirmed.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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