PEOPLE OF MI V JEREMY MICHAEL LATSHAW
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 8, 2009
Plaintiff-Appellee,
v
No. 282086
Macomb Circuit Court
LC No. 2007-000201-FH
JEREMY MICHAEL LATSHAW,
Defendant-Appellant.
Before: Zahra, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
After a jury trial, defendant Jeremy Michael Latshaw was convicted of insurance fraud,
MCL 500.4511(1), and conspiracy to commit insurance fraud, MCL 500.4511(2). He appeals as
of right. We affirm. This appeal has been decided without oral argument pursuant to
MCR 7.214(E).
An insurance claim was made for an allegedly “stolen” 1998 Honda Prelude owned by
defendant’s mother in-law, Rosalie Rogers. The car, or what remained of it, was found in a
storage unit leased to Douglas Chatman. According to the prosecution’s theory of the case,
Rogers and defendant conspired to report the car as stolen so that the insurance company would
pay off Rogers’ debt on the vehicle. Apparently with Rogers’ knowledge, defendant took the car
and drove it to Chatman’s storage unit. In return for his help, defendant allegedly received some
parts from the vehicle. To refute the prosecution’s claims, Rogers contended that the vehicle
was stolen from her workplace and that she immediately leased another higher-cost vehicle. She
and defendant maintained that Chatman acted alone in stealing the vehicle.
On appeal, defendant argues that his counsel erred during voir dire by not challenging a
juror for cause.
In order to preserve the issue of ineffective assistance of counsel, a defendant must move
for a new trial or a Ginther1 hearing before the trial court. People v Cox, 268 Mich App 440,
453; 709 NW2d 152 (2005). If the defendant fails to preserve the issue, appellate review is
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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“limited to mistakes apparent on the record.” Id. “If the record does not contain sufficient detail
to support defendant’s ineffective assistance claim, then he has effectively waived the issue.”
People v Marcus Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). Because defendant did
not move for a new trial or a Ginther hearing on this ground before the trial court,2 our review of
his ineffective assistance claim is limited to mistakes apparent on the record. “Whether a person
has been denied effective assistance of counsel is a mixed question of fact and constitutional law.
A judge first must find the facts, and then must decide whether those facts constitute a violation
of the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). We review questions of constitutional law de novo. Id.
Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. In order to overcome this presumption, defendant
must first show that counsel’s performance was deficient as measured against an
objective standard of reasonableness under the circumstances and according to
prevailing professional norms. Second, defendant must show that the deficiency
was so prejudicial that he was deprived of a fair trial such that there is a
reasonable probability that but for counsel’s unprofessional errors the trial
outcome would have been different. [People v McGhee, 268 Mich App 600, 625;
709 NW2d 595 (2005), quoting People v Solmonson, 261 Mich App 657, 663664; 683 NW2d 761 (2004) (internal citations omitted).]
During voir dire, defense counsel asked a potential juror whether he had “any problem
with [the] idea” that an “innocent person may not want to testify at his own trial.” The juror
responded that he did “maybe a little bit.” The juror, who claimed he had gotten into trouble in
the past, apparently felt that speaking on his own behalf made him accept what he had done
wrong and allowed him to “amend it to a certain degree.” After further questioning, the juror
acknowledged that an individual should follow his attorney’s advice. However, he also stated
that he still felt that “you should really defend yourself to a certain degree.” He reiterated that he
felt that “everyone has a right to a fair trial and everything else.” He also indicated that he would
follow the trial court’s instructions and that he did not “judge a book by its cover.” Defense
counsel did not challenge this juror, and he remained on the jury through deliberation.
Generally, a trial attorney’s decisions with respect to prospective jurors are considered
matters of trial strategy, and we decline to evaluate a claim of ineffective assistance of counsel
with the benefit of hindsight. People v Williams, 240 Mich App 316, 331-332; 614 NW2d 647
(2000). In People v Robinson, 154 Mich App 92, 95; 397 NW2d 229 (1986), this Court held that
failure to challenge a juror does not provide a basis for a claim of ineffective assistance of
counsel. The Robinson Court explained, “A reviewing court cannot see the jurors or listen to
their answers to voir dire questions. A juror’s race, facial expression, or manner of answering a
question may be important to a lawyer selecting a jury.” Id. at 94-95. The Robinson Court
2
Defendant moved for a directed verdict or, alternately, for a new trial on the ground that Rogers
was acquitted of the same charges as those for which defendant was convicted. He did not raise
a claim of ineffective assistance. Defendant moved this Court to remand for a Ginther hearing,
but we denied the motion.
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continued, “Our research has found no case in Michigan where defense counsel’s failure to
challenge a juror or jurors has been held to be ineffective assistance of counsel. We cannot
imagine a case where a court would so hold, and we do not so hold in this case.” Id. at 95.
The juror’s statements in this case do not indicate any potential prejudice rising to the
level that trial counsel clearly should have sought to remove the juror from the panel. The
general tenor of the juror’s statements showed that although he would prefer that defendant
testify, he would be willing and able to act objectively in accordance with the trial court’s
instructions. Moreover, the juror’s comments, taken in their entirety, suggested a level of
sympathy toward defendant’s situation that counsel could reasonably have read as advantageous
to his client. Therefore, defendant has not established that his counsel’s actions during jury
selection constituted ineffective assistance.
Defendant also argues that his counsel erred by failing to challenge the admission of
“inadmissible and unfairly prejudicial evidence of [his] prior police contact.” This allegation
involves testimony provided by the investigating detective, Macomb Sheriff Detective Rick
Seldon, concerning his interview with Rogers. Seldon stated that he asked Rogers whether
anyone might have information regarding the theft of her vehicle. Rogers told Seldon that she
was not involved in the theft, but that “her son-in-law [defendant] may be involved because of
his past history . . . with police officers and contact with the law.” During cross-examination,
defense counsel asked Seldon whether the earlier contact concerned defendant’s role as a
prosecution witness against Chatman in an earlier case, in which Chatman was prosecuted for
hiding stolen parts in defendant’s garage. Seldon stated that he knew they were both involved,
“but not the specifics of it.”
The next day, Seldon continued testifying. During redirect examination, the prosecutor
asked him to reiterate what Rogers had told him regarding defendant’s possible involvement in
the theft of her car. Seldon stated that he had some reports indicating that defendant “had some
contact with police a few years ago [regarding] stolen parts in a garage.” During recrossexamination, Seldon acknowledged that he did not know the nature of the police contact, that
defendant was not charged with having stolen property in his garage, and that defendant was
listed as a witness against Chatman in the previous case. Rogers subsequently testified that she
never told Seldon that defendant could have been involved in the theft of her car.
Defendant has failed to establish a claim of ineffective assistance of counsel. “Decisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy, and this Court will not substitute its judgment for that of counsel
regarding matters of trial strategy.” Marcus Davis, supra at 368. Defense counsel’s extensive
cross-examination discredited the thrust of Seldon’s initial statements, challenged his
investigative skills, highlighted his predisposition to find that defendant was involved, painted
defendant as the possible victim of a reprisal by Chatman, and further undermined Chatman’s
credibility. Counsel was not ineffective in this case.
Affirmed.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
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