STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2009
Plaintiff-Appellee,
V
No. 283573
Montmorency Circuit Court
LC No. 07-001722-FC
ROBERT KENNETH BECKER,
Defendant-Appellant.
Before: Hoekstra, P.J., and Bandstra and Servitto, JJ.
PER CURIAM.
Defendant appeals by right his convictions following a jury trial of escape while awaiting
trial, MCL 750.197(2); possession of a firearm during the commission of a felony (felonyfirearm), MCL 750.227b; assault with intent to murder, MCL 750.83; felon in possession of a
firearm, MCL 750.224f; and resisting and obstructing a police officer, MCL 750.81d(1).
Defendant was sentenced to prison terms of two to four years for escape, two years for felonyfirearm, 21 to 35 years for assault with intent to murder, two to five years for felon in possession
of a firearm, and 13 months to two years for resisting and obstructing a police officer. We
affirm.
This case stems from an incident occurring at the Montmorency County Circuit Court.
Upon hearing the jury verdict in a prior case, defendant fled the courtroom and the courthouse
and ran to his vehicle. Defendant pulled a 20-gauge shotgun from his vehicle and pointed it at an
officer who was pursuing him. The officer testified that defendant pulled the trigger, but the
shotgun misfired. Defendant was taken into custody where he was charged with and convicted
of the above-cited offenses.
Following his convictions, defendant filed the instant appeal arguing, among other things,
that there was no reviewable record of the instructions given to the jury. Defendant asserted that,
as a result, he was denied his rights to due process, equal protection, and to an accurate record
for appellate review. Defendant also moved for a remand to the trial court to “settle the record”
with respect to the jury instructions. This Court granted the motion and remanded the matter to
the trial court for “appropriate proceedings to settle the record as to the content of the written
jury instructions on the elements of the charged crimes.” A transcript of the proceedings held to
settle the record was provided to this Court.
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On appeal, defendant first argues that his convictions should be reversed because the
judge was disqualified to hear the case based on personal bias under MCR 2.003(B)(1), (2), and
(6) or, in the alternative, based on the high probability of actual bias. These claims are based
upon the fact that the trial judge witnessed defendant’s escape from the courtroom.
A party must file a motion to disqualify a judge within 14 days after discovering the
ground for disqualification. MCR 2.003(C). The failure to file such a motion may waive the
issue for appeal. See In re Forfeiture of $53, 178 Mich App 480, 497; 444 NW2d 182 (1989).
Waiver extinguishes the underlying error, and the relevant issue generally cannot be appealed.
People v Adams, 245 Mich App 226, 239-240; 627 NW2d 623 (2001).
Here, defendant did not file a motion for judicial disqualification despite the fact that he
had full knowledge of the grounds for disqualification long before the trial began. Clearly, when
defense counsel raised the issue at arraignment, he knew the potential grounds for
disqualification. However, despite this knowledge, defendant did not file a motion for judicial
disqualification. It would be unjust for defendant to have full knowledge of a potential
disqualification issue before a criminal trial has even begun, decline to raise the issue in the
lower court, and then seek redress on appeal after obtaining an unfavorable result at trial. For
these reasons, we consider this issue waived. To allow defendant to proceed on this allegation
of error would contravene the longstanding rule against a party harboring error as an appellate
parachute. Polkton Charter Tp v Pellegrom, 265 Mich App 88, 96; 693 NW2d 170 (2005).
In addition to disqualification under MCR 2.003, in some circumstances due process will
require disqualification because of the high probability of bias, including when the judge has a
pecuniary interest in the outcome of the case, has been the target of personal abuse or criticism
from a party, is enmeshed in other matters involving a party, or has previously participated in the
case as accuser, investigator, factfinder or initial decisionmaker. Armstrong v Ypsilanti Charter
Twp, 248 Mich App 573, 599; 640 NW2d 321 (2001). The “[Michigan Supreme Court] has
examined the issue of judicial disqualification pursuant to the Due Process Clause and has found
that disqualification for bias or prejudice is only constitutionally required in the most extreme
cases.” Cain v Dep’t of Corrections, 451 Mich 470, 498; 548 NW2d 210 (1996).
In this matter, the fact that the judge witnessed defendant’s escape from the courtroom
gave him no more interest in the case than he would have had in any criminal case assigned to
his docket. It was not for the trial court to decide defendant’s guilt or innocence; this was left to
the jury. Presiding over a trial where the judge has had prior contact with the defendant does not
provide the judge with a vested interest. Because this situation does not coincide with the type of
extreme case that would justify a due process disqualification, the trial court was not required to
sua sponte recuse himself.
Defendant next argues that he was denied due process when the trial court provided
written elements of the crimes charged to the jury in lieu of reading them in open court, and
when the trial court failed to make the written instructions a part of the lower court record.
However, defendant was given an opportunity to object to the trial court’s decision on how to
instruct the jury. Instead of objecting or requesting the instructions be read to the jury, defendant
(through counsel) affirmatively agreed with the trial court’s proposed procedure of reading the
general instructions and providing separate pieces of paper to the jury that set forth the elements
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of each crime. This affirmative approval waives this issue for appeal. People v Hall (On
Remand), 256 Mich App 674, 679; 671 NW2d 545 (2003).
Defendant next argues that defense counsel was ineffective for agreeing to the jury
instruction procedure described above. “To establish ineffective assistance of counsel the
defendant must first show: (1) that counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms, and (2) that there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different.”
People v Yost, 278 Mich App 341, 387; 749 NW2d 753 (2008), citing Bell v Cone, 535 US 685,
695; 122 S Ct 1843; 152 L Ed 2d 914 (2002), and People v Toma, 462 Mich 281, 302-303; 613
NW2d 694 (2000). The defendant must overcome the strong presumption that counsel’s
performance constituted sound trial strategy. People v Davis, 250 Mich App 357, 368; 649
NW2d 94 (2002).
Defendant claims that there is no strategic reason for an attorney to agree to a
“constitutionally impermissible” procedure related to something as fundamental as proper
instructions on the elements of the charged and lesser offenses, and also argues that there is no
way to ascertain whether the jury read the instructions while in the jury room. While
traditionally trial courts read the instructions to the jury or read the instructions and provide
written copies of the instructions to the jury, we find no authority for defendant’s claim that the
procedure utilized by the trial court was constitutionally impermissible. It is possible that
defense counsel was of the opinion that giving written instructions to the jury to read would
clarify the instructions and lead to a more advantageous result for defendant. Defendant has not
overcome the strong presumption that defense counsel’s agreement with the procedure utilized
was sound trial strategy.
Defendant next contends that his conviction must be reversed given that the parties were
unable to successfully settle the record regarding the instructions on remand. According to
defendant, because no witness could testify with one hundred percent certainty as to the actual
written instructions given to the jury, the record remains unsettled on this issue and, therefore,
defendant was denied due process. We disagree.
This Court has held that the inability to obtain the transcripts of criminal proceedings may
so impede a defendant's right to appeal that a new trial must be ordered. People v Horton, 105
Mich App 329, 331; 306 NW2d 500 (1981); People v Audison, 126 Mich App 829, 834-835; 338
NW2d 235 (1983). If, however, the surviving record is sufficient to allow evaluation of
defendant's claims on appeal, defendant's right is satisfied. People v Audison, supra, at 834-835.
At the hearing on remand, defendant’s trial counsel testified that he found a set of jury
instructions, in his file on defendant’s case, with his own handwritten notes on them. Counsel
recalled looking at the instructions and reviewing them with the trial judge and the prosecutor,
and agreeing that they could be submitted to the jury, but could not confirm that they were
actually sent to the jury. Counsel testified that he assumed the written instructions were provided
to the jury, but did not independently recall them actually being handed to the jury.
The prosecutor testified that she believed, with 90-95% certainty, that the instructions
found in defense counsel’s file were those that were provided to the jury (with the exception of
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one instruction containing defense counsel’s notes). The prosecutor specifically recalled going
over the elements of the charged crimes with the trial judge and defense counsel.
The trial judge testified that the jury instructions setting forth the elements of the charged
offenses were not read in open court, but were provided in written form to the jurors. The nowretired trial judge testified that he used this procedure in every criminal trial that he presided over
during his 18 years on the bench. According to the trial judge, a clerk typed up the elements for
each offense, using the Criminal Jury Instructions. In preparation for the hearing, the trial judge
testified that he called the clerk who prepared the instructions for him for the last 15 or 16 years
of his career and asked her to retrieve the list of elements used in defendant’s trial. The judge
testified that the instructions would have been kept in a separate office file that he maintained for
every case that went to verdict or in a file that the clerk kept containing lists of the elements of
criminal charges. The trial judge testified that he compared the list provided by the clerk to the
charges contained on defendant’s jury verdict form, and the list matched defendant’s charges.
To the best of the trial judge’s recollection, the instructions provided to him were exactly the
same as those that were provided to the jury at defendant’s trial.
The clerk, Ms. LaMarre, testified that the written instructions she provided to the trial
judge were retrieved from her computer. Ms. LaMarre testified that when she received the
request, she retrieved defendant’s verdict form, which she had saved on her computer, then
looked up the offenses listed on the verdict form from a folder stored on her computer entitled
“elements of the offense.”
The record reflects that the trial judge and each counsel recalled reviewing written
instructions concerning the elements of each offense. Defense counsel produced written
instructions from his file that he had no reason to believe were not a copy of those that were
provided to the jury. The trial judge, after requesting the written instructions that were used in
defendant’s case from a clerk at the court, compared them to the verdict form used in defendant’s
case and opined that they were the instructions he provided to the jury. The clerk testified that
the instructions she provided to the trial judge were those that appeared on her computer and
were used in defendant’s case. Defendant having offered no real argument that any instructions
other than those produced at the remand hearing were provided to the jury, the record was
sufficiently settled so as to allow evaluation of defendant's claims on appeal. Audison, supra, at
834-835.
Next, defendant claims that the written jury instructions provided by the trial judge at the
remand hearing, as well as those that were provided to the jury at trial, contained an erroneous
instruction as to the felony firearm offense and that this conviction must therefore be reversed.
We disagree.
The written jury instructions provided to the jury concerning the elements of the offense
of possession of a firearm at the time of commission or attempted commission of a felony
(felony firearm) read as follows:
The Defendant is also charged with the separate crime of possessing a firearm at the time
he committed the crime of Assault With Intent To Murder. To prove this charge, the Prosecutor
must prove each of the elements beyond a reasonable doubt:
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1.
That at the time the Defendant committed a felony*, he knowingly carried or
possessed a firearm.
*Assault With Intent to Murder, Assault With Intent to Do Great Bodily Harm, and Assault With
a Dangerous Weapon are all felonies.
CJI2D 11.34, the standard jury instruction concerning felony firearm provides:
(1) The Defendant is also charged with the separate crime of possessing a firearm at the
time [he/she] committed [or attempted to commit] the crime of _________.
(2) To prove this charge, the prosecutor must prove each of the following elements
beyond a reasonable doubt:
(3) First, that the defendant committed [or attempted to commit] the crime of ________,
which has been defined for you. It is not necessary, however, that the defendant be convicted of
that crime.
(4) Second, at the time the defendant committed [or attempted to commit] that crime
[he/she] knowingly carried or possessed a firearm.
As pointed out by defendant, the instruction provided to the jury differs from the standard
criminal jury instruction as to the offense elements of felony firearm. However, when given the
opportunity to review the instructions and object to the same, defense counsel expressed
satisfaction with the instructions. While a party who forfeits a right might still obtain appellate
review for plain error, a party who waives a known right cannot seek appellate review of a
claimed deprivation of the right. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
A party waives review of the propriety of jury instructions when he approves the instructions at
trial. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). Because defendant
affirmatively approved of the instructions as given, he has waived any review of the propriety of
the same. However, regardless of defense counsel’s failure to object, it would be impossible for
this Court to assign error when the missing portion of the standard criminal jury instruction
involved the jury’s obligation to find that the defendant committed or attempted to commit the
underlying felony and, in the instant matter, the jury was advised of the elements of the
underlying felony and found defendant guilty of the underlying felony.
Finally, relying on People v Dunbar, 264 Mich App 240, 251-255; 690 NW2d 476
(2004), defendant argues that the trial court erred in imposing attorney fees without indicating
that it had considered defendant’s ability to pay. However, Dunbar was recently overruled on
the very point now argued. People v Jackson, 483 Mich 271, 290; 769 NW2d 630 (2009):
Thus, we conclude that Dunbar was incorrect to the extent that it held that
criminal defendants have a constitutional right to an assessment of their ability to
pay before the imposition of a fee for a court-appointed attorney. With no
constitutional mandate, Dunbar’s presentence ability-to-pay rule must yield to the
Legislature’s contrary intent that no such analysis is required at sentencing. See
MCL 769.1k and 769.1l.
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The Jackson Court also noted, “for purposes of an ability-to-pay analysis, we have
recognized a substantive difference between the imposition of a fee and the enforcement of that
imposition.” Jackson, supra at 291-292. Jackson further noted that:
Indeed, whenever a trial court attempts to enforce its imposition of a fee for a
court-appointed attorney under MCL 769.1k, the defendant must be advised of
this enforcement action and be given an opportunity to contest the enforcement on
the basis of his indigency. Thus, trial courts should not entertain defendants’
ability-to-pay-based challenges to the imposition of fees until enforcement of that
imposition has begun. [Id. at 292 (emphasis omitted).]
Finally, Jackson concluded, “MCL 769.1l inherently calculates a prisoner’s general ability to pay
and, in effect, creates a statutory presumption of nonindigency.” Id at 295. An “imprisoned
defendant bears a heavy burden of establishing . . . extraordinary financial circumstances”
sufficient to overcome this presumption. Id.
On February 5, 2008, on a form approved by the Supreme Court Administrative Office,
the court ordered enforcement of the fee imposition, which included attorney fees. In accordance
with MCL 769.1l, the court ordered the following:
2. For payment toward the obligation, the Department of Corrections shall collect
50% of all funds received by the defendant over $50.00 each month.
3. If the amount withheld at any one time is $100.00 or less, the Department of
Corrections shall continue collecting funds from the defendant’s prisoner account
until the sum of the amounts collected exceeds $100.00, at which time the
Department of Corrections shall remit that amount to this court . . . .
Although defendant filed an affidavit of indigency along with his request for an
appointed appellate attorney, he has not contested his ability to pay the imposed fees.
Thus, we resolve this issue as did Jackson:
In this case, the trial court did not err by imposing the fee for his courtappointed attorney without conducting an ability-to-pay analysis. Further, it did
not err by issuing the remittance order under MCL 769.1l because defendant is
presumed to be nonindigent if his prisoner account is only reduced by 50 percent
of the amount over $50. However, if he contests his ability to pay that amount, he
may ask the trial court to amend or revoke the remittance order, at which point the
trial court must decide whether defendant’s claim of extraordinary financial
circumstances rebuts the statutory presumption of his nonindigency. [Jackson,
supra, 483 Mich at 298-299.]
Defendant also argues that the amount charged for attorney fees did not bear any
relationship to the actual cost of attorney services in the case. Defendant cites no authority for
this position, nor argues what a reasonable rate for this case would be. An appellant may not
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merely announce a position and leave it up to this Court to discover the basis for the argument.
DeGeorge v Warheit, 276 Mich App 587, 594-595; 741 NW2d 384 (2007).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Deborah A. Servitto
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