PEOPLE OF MI V MATHEW LUKE WOLFE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 8, 2009
Plaintiff-Appellee,
v
No. 286700
Ingham Circuit Court
LC No. 07-001595-FH
MATHEW LUKE WOLFE,
Defendant-Appellant.
Before: M. J. Kelly, P. J., and K. F. Kelly and Shapiro, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of interfering with electronic
communications, MCL 750.540(5)(a), and domestic assault and battery, second offense, MCL
750.81(3).1 We affirm.
I. Basic Facts
This matter involves an altercation between defendant and the victim, his former
girlfriend. Allegedly, defendant pushed and grabbed the victim with both hands, threw her to the
ground, and kicked her in the stomach several times. Officers were called to the residence and
defendant was arrested and charged. Before trial, defendant sent the victim several letters in
which he asked that she refuse to testify or that she deny that he struck her, and also admitted to
breaking her cell phone during the incident.
On the first day of trial, defense counsel was present during voir dire and presented an
opening statement to the jury. The prosecution then proceeded with its case and produced two
witnesses, including the victim and Matthew Salmon, one of the officers who responded to the
residence. While cross-examining the victim, defense counsel revealed defendant’s probation
status in an attempt to impeach the victim’s credibility. Concerned that a mistrial would be
necessary because of the prejudicial nature of defense counsel’s question, the trial court excused
the jury from the courtroom and asked defense counsel whether defendant would concur in a
mistrial. The following colloquy then occurred:
1
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
-1-
THE COURT:
[Defense counsel, you] discussed the matter with
your client and it’s your client’s desire to do what?
DEFENSE COUNSEL:
He would like to continue with the trial.
DEFENDANT:
Per se [sic].
THE COURT:
Sir, you have an attorney.
DEFENSE COUNSEL:
Per se [sic]. He’d like to continue per se [sic].
The trial court continued:
THE COURT:
I note that [defendant] has requested that he be
permitted to defend himself; is that correct?
DEFENSE COUNSEL:
That’s correct, Your Honor.
THE COURT:
Well, that’s denied. He has an attorney. So long as
you’re here to assist him in his presentation of his
defense. Now, do you wish to question witnesses,
sir?
DEFENDANT:
Yes, Your Honor.
THE COURT:
Any problem with that, [prosecutor]?
PROSECUTOR:
You know, Judge, I guess I’d have a concern as whether or
not that in itself would be prejudicial, that halfway during
the trial he–I mean, he starts–
THE COURT:
Well, if I prepare an instruction or give the jury an
instruction that [defendant] has now decided he wishes to
pursue his own defense and that [defense counsel] is here to
assist him in presentation of that defense, would there be a
problem?
PROSECUTOR:
No, Your Honor.
THE COURT:
Okay. [Defense counsel], you’ll have to stay on to assist
the gentleman in asking questions.
The trial court then called the jury back into the courtroom and informed the jurors that
defendant had chosen to “pursue his own defense” and that defense counsel would “stay on to
assist [defendant] in doing that . . . .” The trial court did not inform defendant that he was
waiving his Sixth Amendment right to counsel, did not make any explicit findings that defendant
was knowingly, intelligently, and voluntarily asserting his right to self representation, and did not
otherwise explain to defendant the dangers of self representation.
-2-
After that, defendant proceeded to cross-examine the victim. Defendant brought out
testimony that tended to impeach the victim’s credibility and was consistent with the defense
theory of the case, including the fact that her memory had been impaired by her medication and
also by the fact that she was intoxicated when the altercation occurred. In addition, defendant
established that her trial testimony was inconsistent with her testimony from the preliminary
examination. In the process of cross-examining the victim, defendant twice sought and was
granted permission to speak with counsel.2 Defendant then cross-examined officer Salmon, who
admitted that he never spoke to the victim and did not observe any visible bruising on her.
On the second day of trial, defense counsel informed the trial court that defendant wanted
counsel to resume his original role as defense counsel, which the trial court permitted. The
prosecution presented an additional witness, the other officer who responded to the residence,
Stephanie Bokovoy. Defense counsel cross-examined officer Bokovoy and presented two
witnesses for the defense, including defendant. Defense counsel then gave a closing argument
and the trial court provided the jury with instructions, to which defense counsel did not object.
The jury returned a verdict of guilty on both counts.
Subsequently, defendant moved for a new trial on the basis that the trial court’s failure to
obtain a valid waiver of defendant’s Sixth Amendment right to counsel constituted a structural
error requiring automatic reversal. The trial court disagreed and denied the motion. It reasoned
that “defendant did a better job than [defense counsel.]” This appeal followed.
II. Right to Counsel
Defendant raises the same argument he raised in his motion for a new trial and posits that
because he was deprived of counsel without a valid waiver during a critical stage of the
proceedings he is entitled to automatic reversal. While we agree that the trial court’s failure to
obtain a valid waiver constitutes error, see People v Anderson, 398 Mich 361, 367-368’ 247
NW2d 857 (1976); MCR 6.005(D), we disagree with defendant’s contention that this error was a
structural error that requires reversal. We review constitutional questions de novo. People v
Billings, 283 Mich App 538, 541; ___ NW2d ___ (2009).
A. Structural Error
Because there is no dispute between the parties that defendant’s waiver of his right to
counsel was ineffective, we must consider whether the error is nonstructural, such that it is
subject to a harmless error analysis, or structural. See People v Willing, 267 Mich App 208, 223;
704 NW2d 472 (2005). Structural errors require automatic reversal, whereas nonstructural errors
require proof beyond a reasonable doubt that the error was harmless. People v Duncan, 462
Mich 47, 51; 610 NW2d 551 (2000); People v Anderson (After Remand), 446 Mich 392, 404406; 521 NW2d 538 (1994). As this Court stated in Willing, supra at 224:
2
It is unclear from the record whether defendant spoke with counsel on both occasions. And,
aside from these incidents, there is no indication on the record that defense counsel had any other
involvement during this portion of the proceedings.
-3-
It is well established that a total or complete deprivation of the right to counsel at
a critical stage of a criminal proceeding is a structural error requiring automatic
reversal. While the harmless error doctrine is not entirely inapplicable to
ineffective waivers of the right to counsel, it has been limited to cases in which
the effect of the deprivation of counsel does not “pervade the entire proceeding” .
. . . [Footnote omitted.]
Stated differently, to be deemed a structural error, the deprivation of counsel must be (1) total or
complete, (2) at a critical stage of the proceedings, and (3) must contaminate the entire
proceeding. As this Court has previously concluded, the assistance of a standby counsel
constitutes a “total deprivation of counsel” because counsel, in this advisory capacity, is not
responsible for directing the defendant’s defense and is not “counsel” within the meaning of the
Sixth Amendment. Id. at 227-228. And, generally, critical stages include those proceedings that
occur after the initiation of adversarial judicial proceedings, Anderson (After Remand), supra at
402, and “that [hold] significant consequences for the accused,” Bell v Cone, 535 US 685, 696;
122 S Ct 1843; 152 L Ed 2d 914 (2002).
Here, defense counsel took on a purely advisory role for approximately half of the
complainant’s testimony and for all of officer Salmon’s testimony. Defendant was left
unrepresented during these critical stages of the proceedings, which included the testimonies of
two of the prosecution’s three witnesses and which was defendant’s only chance to develop
testimony from the complainant and officer Salmon consistent with his defense theory. Further,
during the testimonies of these two witnesses, defendant was at risk of having inculpatory and
unfairly prejudicial evidence admitted against him, which an attorney, trained in the rules of
evidence, could have potentially prevented the jury from hearing. Thus, it is plain that defendant
suffered a complete deprivation of counsel at a critical stage of the criminal proceeding.
Having concluded that defendant was completely deprived of counsel during a critical
stage of the proceeding, we must determine whether the effect of that deprivation contaminated
the entire proceeding. In other words, if the evil caused by the Sixth Amendment violation is
limited, such that the entire proceeding is not infected by the violation, then application of the
harmless error test is appropriate. See Satterwhite v Texas, 486 US 249, 257; 108 S Ct 1792; 100
L Ed 2d 284 (1988); People v Murphy, 481 Mich 919, 921-923; 750 NW2d 582 (2008)
(Markman, J., concurring). Such an inquiry necessarily requires us to examine and determine the
scope of the error’s effect on the proceedings.
In the present matter, although defendant was totally deprived of counsel at a critical
stage in the trial, defendant has not identified, or even argued, how this error contaminated the
entire proceedings. Rather, during cross examination of the victim, defendant elicited testimony
consistent with counsel’s defense theory—mainly, that the victim’s testimony should not be
believed over defendant’s testimony because the victim had previously lied regarding the
incident and that her memory was affected by medication and alcohol. In addition, defendant
succeeded in casting doubt on officer Salmon’s testimony by establishing that Salmon did not
observe any injuries on the victim. Significantly, however, defendant has not identified any
defenses that he lost, or testimony that should have been developed in support of such defenses,
as a result of his deprivation of counsel. In such circumstances, we cannot conclude that
defendant’s in propria persona examination of the two witnesses involved a necessary or
inevitable impact on the subsequent proceedings, such that the denial of counsel constituted
-4-
structural error. Accordingly, because the Sixth Amendment violation did not undermine the
entire criminal proceeding, and thus was not a structural error, we will apply the harmless error
test.
B. Harmless Error
As noted, the harmless error test requires proof beyond a reasonable doubt that the error
was harmless. Anderson (After Remand), supra at 405-406. This inquiry requires us to assess
the error in the context of all the other evidence presented and determine whether “there is no
reasonable possibility that the evidence complained of might have contributed to the conviction.”
Id. (quotation marks and citation omitted).
Applying this test, we find that the error was harmless. We reach this conclusion after a
review of the record evidence, which reveals that the jury was faced with the task of resolving a
credibility contest between the prosecution’s witnesses and defendant’s witnesses. The verdict
indicates that the jury believed the victim’s testimony over defendant’s testimony. The jury’s
finding of guilt is supported by additional documentary evidence that corroborated the victim’s
version of events. Specifically, letters defendant had written to the victim were admitted into
evidence, in which defendant admitted to breaking her cell phone and in which he asked her to
refuse to testify or to say that he never hit her. And, defendant’s prior domestic assault
conviction was also admitted into evidence. Further, the testimony elicited while defendant was
representing himself was not obviously and unfairly prejudicial to the extent that it contributed to
the jury’s verdict. Rather, the testimony elicited by defendant was beneficial to his defense.
Thus, in light of the overwhelming evidence in support of defendant’s guilt, we conclude that
defendant’s deprivation of counsel did not contribute to the jury’s verdict and the error was
harmless.
Affirmed.
/s/ Michael J. Kelly
/s/ Kirsten Frank Kelly
/s/ Douglas B. Shapiro
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
