PEOPLE OF MI V STEVEN GREGORY THOMAS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2008
Plaintiff-Appellee,
v
No. 278956
Wayne Circuit Court
LC No. 07-005408-01
STEVEN GREGORY THOMAS,
Defendant-Appellant.
Before: Meter, P.J., and Talbot and Murray, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of felonious assault, MCL 750.82, and
one count each of possession of a firearm during the commission of a felony, MCL 750.227b,
fourth-degree fleeing or eluding a police officer, MCL 257.602a(2), and resisting or obstructing a
police officer, MCL 750.81d(1). He was sentenced to concurrent prison terms of 23 months to 4
years for each felonious assault conviction and one to two years each for the resisting arrest and
fleeing a police officer convictions, to be served consecutively to a two-year term of
imprisonment for the felony-firearm conviction. He appeals as of right. We affirm.
Defendant was convicted of assaulting two repossession agents with a shotgun when the
agents attempted to repossess a van on defendant’s property. Defendant later left in the van,
pursued by the victims and eventually by the police. According to police officers, defendant
failed to yield to an officer’s signal to stop his vehicle. Defendant eventually stopped his van
and was pursued on foot. He was eventually apprehended and, according to police officers,
resisted efforts to be handcuffed and struggled with the officers until he was tasered. After his
arrest, the police took defendant to a hospital for medical treatment, after which he was released.
Approximately a day and a half after he was arrested, defendant gave a statement in which he
admitted obtaining a gun from his house after a tow truck pulled into his driveway and the driver
refused to speak to him to explain what was going on.
Defendant testified at trial that he confronted the two victims with a gun because he
thought they were trying to steal his work tools from his van, but denied pointing the gun at
either victim. Defendant also denied failing to stop for the police or resisting his arrest.
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I. Effective Assistance of Counsel
Defendant argues that trial counsel was ineffective for failing to move to suppress his
police statement on the ground that it was not given voluntarily. We disagree.
Because defendant did not raise an ineffective assistance issue in the trial court, our
review is limited to errors apparent from the record.1 People v Matuszak, 263 Mich App 42, 48;
687 NW2d 342 (2004). To establish ineffective assistance of counsel, defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that the
representation so prejudiced defendant that he was denied a fair trial. People v Pickens, 446
Mich 298, 338; 521 NW2d 797 (1994). Defendant must overcome the presumption that the
challenged action was sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466
NW2d 315 (1991). To establish prejudice, defendant must show that there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different.
People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996). He must also show that the
proceedings that took place were fundamentally unfair or unreliable. People v Rodgers, 248
Mich App 702, 714; 645 NW2d 294 (2001).
The record does not factually support defendant’s argument that his police statement was
not voluntarily made. In People v Tierney, 266 Mich App 687, 707-708; 703 NW2d 204 (2005),
this Court explained:
The right against self-incrimination is guaranteed by both the United
States Constitution and the Michigan Constitution. US Const, Am V; Const 1963,
art 1, § 17; People v Cheatham, 453 Mich 1, 9; 551 NW2d 355 (1996) (opinion
by Boyle, J.). Statements of an accused made during a custodial interrogation are
inadmissible unless the accused voluntarily, knowingly, and intelligently waives
that Fifth Amendment right. . . . The prosecutor must show by a preponderance
of the evidence that the defendant knowingly, intelligently, and voluntarily
waived his Fifth Amendment right. People v Daoud, 462 Mich 621, 634; 614
NW2d 152 (2000). Whether a defendant’s statement was knowing, intelligent,
and voluntary is a question of law, which the court must determine under the
totality of the circumstances. Cheatham, supra at 27. . . . Whether a statement
was voluntary is determined by examining police conduct[.] . . .
This Court reviews de novo the question of voluntariness. People v Sexton (After
Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). . . . However, deference is
given to the trial court’s assessment of the weight of the evidence and the
credibility of the witnesses, id., and the trial court’s findings will not be reversed
unless they are clearly erroneous and leave “this Court with a definite and firm
conviction that a mistake was made.” People v Shipley, 256 Mich App 367, 372373; 662 NW2d 856 (2003). . . .
1
We reject defendant’s suggestion that this case be remanded for an evidentiary hearing.
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In determining voluntariness, the court should consider all the circumstances,
including: “[1] the age of the accused; [2] his lack of education or his intelligence
level; [3] the extent of his previous experience with the police; [4] the repeated
and prolonged nature of the questioning; [5] the length of the detention of the
accused before he gave the statement in question; [6] the lack of any advice to the
accused of his constitutional rights; [7] whether there was an unnecessary delay in
bringing him before a magistrate before he gave the confession; [8] whether the
accused was injured, intoxicated or drugged, or in ill health when he gave the
statement; [9] whether the accused was deprived of food, sleep, or medical
attention; [10] whether the accused was physically abused; and [11] whether the
suspect was threatened with abuse.” People v Cipriano, 431 Mich 315, 334; 429
NW2d 781 (1988). No single factor is determinative. Sexton, supra at 753. “The
ultimate test of admissibility is whether the totality of the circumstances
surrounding the making of the confession indicates that it was freely and
voluntarily made.” Cipriano, supra at 334.
According to the detective who took defendant’s statement, defendant stated that he
could not read or write, so the detective, in the presence of another officer, read defendant his
rights. Defendant thereafter signed the advice of rights form. Defendant then gave a statement,
which the detective wrote out and read to defendant. Defendant signed the statement, which
consisted of the following:
I was working on my house when a tow truck pulled up. I went outside
and spoke to the tow truck driver. He refused to speak with me. I went inside the
house and got my shotgun because the driver refused to speak with me and I
didn’t know what was going on.
The driver backed out of the driveway, still not explaining to me what was
going on. I put the gun back into the house and drove off in my van. The police
tried to stop me and I was scared.
Although there was evidence that defendant was injured during his arrest, he was
promptly taken to a hospital, treated for his injuries, and released. Defendant’s statement was
not given until almost two days after he was arrested. The record does not support a causal
connection between defendant’s treatment at the time of his arrest and the giving of his
statement. See People v Wells, 238 Mich App 383, 389-390; 605 NW2d 374 (1999). Further,
although defendant claimed at trial that he was still distraught when he gave his statement, there
is no evidence that any police misconduct or coercion was used to obtain the statement.
Defendant emphasizes that he is unable to read or write, but the record discloses that the officer
verbally read defendant his rights and that defendant signed the advice of rights form before he
gave a statement. In sum, there is no support in the record for defendant’s claim that his
statement was not voluntarily given. Accordingly, there is no basis for concluding that defense
counsel was ineffective for failing to seek suppression of the statement. Counsel is not required
to file a futile motion. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
Furthermore, defendant was not prejudiced by the admission of his statement. Defendant
admitted at trial that the majority of the statement was accurate. The only portion that he
identified as inaccurate was the part indicating that he had been working on his house when the
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tow truck pulled up. Defendant claimed that he instead told the detective that he was preparing
to go to work before the tow truck arrived. This minor discrepancy was immaterial to the
determination regarding whether defendant committed the charged offenses.
Because
defendant’s trial testimony was largely cumulative of his statement, there is no reasonable
probability that the outcome of the trial would have been different if the statement had been
suppressed. See People v McRunels, 237 Mich App 168, 184-185; 603 NW2d 95 (1999).
II. Defendant’s Choice of Counsel
Next, defendant argues that he was deprived of his right to be represented by counsel of
his choice. At trial, defendant was represented by attorney Sharon Woodside. Because
defendant never objected to Woodside’s representation at trial, or complained that he was not
being represented by an attorney of his choice, this issue is not preserved. Therefore, our review
is limited to plain error that affected defendant’s substantial rights. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).
Defendant originally retained attorney David Braxton to represent him. Braxton
represented defendant at the preliminary examination, but, with defendant’s consent, two other
attorneys represented defendant at the next two hearings because Braxton had been hospitalized
and was unable to appear. A third attorney, Woodside, represented defendant at trial because of
Braxton’s continuing incapacity. Notably, Woodside also represented defendant at two pretrial
conferences dating back to one month before trial. Although defendant never consented on the
record to Woodside’s representation, he never objected or voiced any disagreement with her
representation either.2
At the root of the Sixth Amendment’s right to counsel is the right of a defendant to select
counsel of his own choosing. United States v Gonzalez-Lopez, 548 US 140, 147-148; 126 S Ct
2557, 2563; 165 L Ed 2d 409 (2006). Therefore, a defendant who does not require the
appointment of counsel has the right to choose who will represent him. Id. at 144. A violation
of a defendant’s right to counsel is established when the defendant is erroneously prevented from
being represented by his lawyer of choice, regardless of the quality of representation he may
receive from another lawyer. Id. at 148. However, the right is not absolute and may be
circumscribed in different ways. Wheat v United States, 486 US 153, 159; 108 S Ct 1692; 100 L
Ed 2d 140 (1988). Trial courts maintain the authority to establish criteria for lawyers who
appear before them, and may remove a defendant’s attorney based on “gross incompetence,
physical incapacity, or contumacious conduct.” People v Coones, 216 Mich App 721, 728-729;
550 NW2d 600 (1996); see also Wheat, supra at 159.
In this case, the record discloses that defendant’s original retained attorney, Braxton, was
unavailable because of physical incapacity. More significantly, there is no indication in the
record that the trial court interfered with defendant’s choice of counsel. Woodside stated on the
2
Defendant’s reliance on MCR 6.005(E) is misplaced. That rule addresses a trial court’s
obligation to advise a defendant of the right to counsel where the defendant decides to waive the
assistance of counsel. Because defendant never waived his right to counsel, the rule is not
applicable.
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record that she was brought into the case because of Braxton’s health problems. Although
defendant asserts that he did not consent on the record to Woodside’s representation, Woodside
was not an appointed attorney and there is no indication that the trial court compelled Woodside
to represent defendant against defendant’s wishes. Further, defendant never asked that the trial
be adjourned or delayed to enable him to proceed with Braxton or another attorney of his
choosing. For these reasons, defendant has not established that his right to counsel of his choice
was violated.
In addition, nothing in the record supports defendant’s claim that he was denied the
effective assistance of counsel merely because he was represented by different attorneys
throughout this case. As explained elsewhere in this opinion, there is no merit to defendant’s
specific claims of ineffective assistance of counsel, and defendant does not explain what else his
attorneys should have done differently.
III. Defendant’s Standard 4 Brief
Defendant raises three additional issues in a supplemental brief filed pursuant to Supreme
Court Administrative Order No. 2004-4, Standard 4, none of which have merit.
He first argues that his attorney was ineffective for not moving to quash the information.
However, defendant does not contend that the evidence at trial was insufficient to support each
of his convictions. Where sufficient evidence is presented at trial to convict the defendant, a
magistrate’s erroneous decision to bind the defendant over for trial is rendered harmless. People
v Libbett, 251 Mich App 353, 357-358; 650 NW2d 407 (2002). Evidence was presented that
defendant aimed a loaded shotgun toward both victims and threatened them. He thereafter failed
to heed an officer’s signal to stop his vehicle and fought with the officers when they attempted to
place him under arrest. The evidence was sufficient to prove each of the charged crimes. See
People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007) (felonious assault), People v
Nichols, 262 Mich App 408, 410; 686 NW2d 502 (2004) (resisting an officer), People v Avant,
235 Mich App 499, 505; 597 NW2d 864 (1999) (felony-firearm), and People v Wood, 276 Mich
App 669, 670-671; 741 NW2d 574 (2007) (fleeing or eluding). Defendant has not demonstrated
that counsel was ineffective for failing to file a motion to quash.
Defendant also asserts that defense counsel was ineffective for failing to call Orlando
Jones as a witness at the preliminary examination. At trial, Jones testified that defendant never
pointed his gun at the victims and, also, attempted to ask the victims what they were doing on his
property, but they did not respond. Even if Jones had testified in this manner at the preliminary
examination, his testimony would not have precluded a bindover, but would have only
established the presence of a factual dispute to be resolved by the trier of fact at trial. People v
Greene, 255 Mich App 426, 443-444; 661 NW2d 616 (2003).
Further, contrary to defendant’s assertion, any defect in the arrest warrant or complaint
did not affect the trial court’s jurisdiction over this matter. See People v Burrill, 391 Mich 124,
133-134; 214 NW2d 823 (1974). Accordingly, defendant was not prejudiced by counsel’s
failure to challenge the arrest warrant or complaint.
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Defendant also argues that counsel was ineffective for not requesting an instruction on
specific intent for the felonious assault charges and for not requesting an instruction on defense
of property. We disagree.
“The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and
(3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.” People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007) (internal citation and
quotation marks omitted). Specific intent is not an element of felonious assault; the prosecution
need only prove “the general criminal intent to commit an unlawful act necessary for simple
assault.” People v Joeseype Johnson, 407 Mich 196, 227-228; 284 NW2d 718 (1979). Further,
as plaintiff points out, deadly force or the endangerment of human life may not be used to defend
property such as the van. People v Shaffran, 243 Mich 527, 528-529; 220 NW 716 (1928);
People v Doud, 223 Mich 120, 130-131; 193 NW 884 (1923). Because defendant has failed to
show that a specific intent of defense of property instruction was applicable, we conclude that
counsel was not ineffective for failing to request these instructions.
Finally, defendant argues that the trial court erred by failing to give a supplemental
instruction in response to a jury note concerning the elements of felonious assault, and
erroneously foreclosed the jury from rehearing requested testimony. Because defendant did not
object to the trial court’s handling of either of these matters, we review these issues for plain
error affecting defendant’s substantial rights. People v Hill, 257 Mich App 126, 151-152; 667
NW2d 78 (2003).
When a jury asks for supplemental instructions on a specific issue, the trial court need
only instruct the jury on that issue. People v Katt, 248 Mich App 282, 311; 639 NW2d 815
(2001), aff’d 468 Mich 272 (2003); People v Parker, 230 Mich App 677, 681; 584 NW2d 753
(1998). Here, contrary to defendant’s claim, the record discloses that the trial court responded to
the jury’s inquiry regarding the elements of felonious assault. After discussing the matter with
the attorneys, the court instructed the jury that it was not necessary that a weapon be pointed at a
victim in order to establish an assault. The court also reread its earlier instruction defining the
elements of felonious offense. Defendant does not contend that the substance of the trial court’s
supplemental instructions was inaccurate. Accordingly, we find no plain error.
Defendant additionally argues that the trial court erroneously responded to the jury’s
request to rehear certain testimony. In response to the jury’s request, the trial court instructed the
jury as follows:
All right. You may be seated, folks. Thank you. We got your note a little
while ago. We had to take care of some other things and talk about your note a
little bit. You asked to see the Defendant’s testimony in order to make a final
determination on one of the five counts.
You cannot see the Defendant’s testimony. We cannot have a transcript of
his testimony prepared and clearly that’s not something that can be done
instantaneously anyway. It takes quite a bit of time for that. Usually when we
run into this sort of a problem what we do is we have the Court Reporter read
back his testimony. That’s the only thing that we can do.
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Now, Mr. Thomas was on the stand for a good hour and a half so the read
back would take at least an hour and a half. I can’t do it today. I can’t do it
tomorrow.
I can’t do it Monday, but it can be done Tuesday morning starting at nine
o’clock[;] I can carve out an hour and a half or two of our time to have his
testimony read back to you if that’s what you think you have to have.
Now, let me remind you that there are twelve of you, twelve sets of ears
listening to that man’s testimony a couple of days ago, twelve of you presumably
taking notes about what his testimony was.
I would urge you to search your collective memories and your notes to try
to resolve any doubts you have about what he said or didn’t say. Twelve of you
working on this ought to achieve some consensus about what his testimony was.
So I’m going to send you back into the jury room to continue your
deliberations at least for another twenty minutes or so today and if you’re unable
to conclude the matter without a read back then I’m going to have you come back
Tuesday morning and we’ll have testimony read back and then you can go back
into deliberations.
That’s the best I can do. We are extremely busy tomorrow. I cannot take
two hours out of our court time tomorrow for a read back because we all have to
sit here and stop everything else and the Court Reporter, of course, has to sit there
and read it back and I just can’t do it tomorrow and Monday morning I’m
scheduled -- I’ve got two other jury trials on the docket that I’ve got to deal with
and I can’t do it Monday. I can do it Tuesday.
So continue your deliberations for another twenty minutes or so and if
you’re unable to resolve this we’ll send you home for the next three or four days
and you can come back Tuesday, okay.
The jury was thereafter able to reach a verdict without having to rehear defendant’s testimony.
When a jury requests that testimony be read back, both the reading and the extent of the
reading is a matter within the sound discretion of the trial court. People v Howe, 392 Mich 670,
675; 221 NW2d 350 (1974). The trial court’s decision is reviewed for an abuse of discretion.
See id. at 677. Under MCR 6.414(J),3 the trial court must exercise its discretion to ensure
fairness and deny unreasonable requests. However, the court must also not refuse a reasonable
request. Id.; People v Carter, 462 Mich 206, 210-211; 612 NW2d 144 (2000). The court may
order the jury to continue deliberations without the requested testimony, as long as the court does
3
As of August 5, 2008, certain judges, under a pilot project, are to use different specific
procedures concerning jury questions. See Supreme Court Administrative Order No. 2008-2.
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not foreclose the possibility of having the testimony reviewed at a later time. MCR 6.414(J);
Carter, supra at 211.
In this case, the trial court asked the jurors to continue deliberating because it was unable
to immediately provide the requested testimony, but it never foreclosed the jurors from rehearing
the testimony. On the contrary, while it urged the jurors to rely on their collective memories to
achieve some consensus about defendant’s testimony, it also gave the jurors the option of
adjourning deliberations if they determined that the requested testimony was necessary to reach a
verdict. Accordingly, there was no plain error.
We also find no merit to defendant’s claim that the trial court’s instructions were unduly
coercive. A defendant does not have the right to have a jury rehear testimony. Carter, supra at
218. Also, because this was not a situation involving a deadlocked jury, it was not necessary that
the court instruct the jury in accordance with CJI2d 3.12 or ABA Standard 5.4. See People v
Pollick, 448 Mich 376, 381-382; 531 NW2d 159 (1995), and People v Rouse, 272 Mich App
665, 669-670; 728 NW2d 874 (2006), rev’d 477 Mich 1063 (2007). Moreover, the fact that the
trial court was willing to adjourn deliberations, if necessary, to accommodate the jury’s request
to rehear defendant’s testimony indicated that its instructions were not coercive. Defendant has
failed to establish plain error.
Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Christopher M. Murray
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