PEOPLE OF MI V MICHAEL FRANK BASSIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 2, 2010
Plaintiff-Appellee,
v
Nos. 290473; 295012
Oakland Circuit Court
LC No. 2008-221501-FC
MICHAEL FRANK BASSIN,
Defendant-Appellant.
Before: WILDER, P.J., and CAVANAGH and SAAD, JJ.
PER CURIAM.
In Docket No. 290473, defendant appeals as of right his jury trial convictions of assault
with intent to murder, MCL 750.83, and first-degree home invasion, MCL 750.110a(2).
Defendant was sentenced, as a second habitual offender, MCL 769.10, to 17 ½ to 30 years’
imprisonment for each conviction. In Docket No. 295012, following the trial court’s grant of
defendant’s motion for resentencing, defendant appeals as of right the judgment of sentence from
his resentencing, where he was sentenced, as a second habitual offender, to 200 months to 30
years’ imprisonment for his assault with intent to murder conviction and 100 months to 30 years’
imprisonment for his first-degree home invasion conviction. We affirm.
Defendant first argues that the trial court erred by not considering the relevant factors
when denying his request to represent himself at trial. Defendant contends that this failure
denied him his right of self-representation. We disagree.
Generally we review a trial court’s factual findings surrounding a defendant’s waiver of
his Sixth Amendment right to counsel for clear error. People v Russell, 471 Mich 182, 187; 684
NW2d 745 (2004). However, if the ruling involves an issue of law or constitutional question,
review is de novo. Id.
Federal and state law guarantees the right of self-representation. Iowa v Tovar, 541 US
77, 87-88; 124 S Ct 1379; 158 L Ed 2d 209 (2004); US Const, Am VI; Const 1963, art 1, § 13;
see also MCL 763.1. To accept a defendant’s request to represent himself, the trial court must
substantially comply with the requirements delineated in MCR 6.005(D) and in People v
Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976). People v Willing, 267 Mich App
208, 219-220; 704 NW2d 472 (2005). The trial court must engage in a sufficient inquiry to
ensure (1) that the defendant’s request is unequivocal; (2) that the request is knowing, intelligent,
and voluntary; and (3) that the request will not disrupt, unduly inconvenience, or burden the
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court. Willing, 267 Mich App at 219-220, citing Anderson, 398 Mich at 367-368. In addition,
MCR 6.005(D) provides, in pertinent part:
The court may not permit the defendant to make an initial waiver of the right to be
represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison sentence
for the offense, any mandatory minimum sentence required by law, and the risk
involved in self-representation, and offering the defendant the opportunity to
consult with a retained lawyer or, if the defendant is indigent, the opportunity to
consult with an appointed lawyer.
Based on the record, defendant’s request to represent himself was not unequivocal.
Rather, defendant’s request was made in the alternative, expressing his desire for either new
counsel or to represent himself. Even though the trial court did not follow the procedural
requirements in Anderson and MCR 6.005(D), defendant’s failure to make an unequivocal
request was insufficient to amount to a waiver of his right to counsel. See Russell, 471 Mich at
191-192 (“[I]f any irregularities exist in the waiver proceeding, the defendant should continue to
be represented by counsel.”). Consequently, we conclude that the trial court did not err in
denying defendant’s request for self-representation because every reasonable presumption should
be against waiver, and the requirement that defendant make an unequivocal request was not
satisfied. Id. at 188.
Next, defendant argues that Detective Keith Spencer’s testimony on the victim’s
credibility improperly usurped the function of the jury and placed the prestige of the police
behind the contention that defendant was guilty. We disagree. We review unpreserved claims of
evidentiary error for plain error affecting a defendant’s substantial rights. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999); People v Coy, 258 Mich App 1, 12; 669 NW2d 831
(2003).
“It is generally improper for a witness to comment or provide an opinion on the
credibility of another witness because credibility matters are to be determined by the jury.”
People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). However, a police officer may
provide lay opinion testimony regarding topics within his or her personal knowledge and
experience. People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988), modified and
remanded on other grounds 433 Mich 862 (1989).
Contrary to defendant’s argument, Spencer did not testify regarding the victim’s
credibility. Rather, he responded to the prosecutor’s question regarding the victim’s demeanor.
Spencer described the victim as giving competent answers and coming across as confident in
what she was saying, despite the fact that she was in the hospital, under the influence of pain
medication, and still required stitches. This testimony merely reflects the victim’s demeanor and
contains no opinion about whether Spencer thought she was credible. Further, the testimony
about the victim’s demeanor allowed the jury to consider the credibility of what the victim told
Spencer. Consequently, Spencer’s testimony did not constitute plain error. In addition, the trial
court instructed the jury that it was to decide the credibility of each witness and a jury is
presumed to have followed instructions, People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998), so defendant cannot show that Spencer’s testimony affected his substantial rights.
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Next, defendant argues that testimony about the victim’s statements regarding the assault
from Officer Jacob Theisen, Officer Donald Scher, and Spencer was improper because it
constituted inadmissible hearsay. Defendant contends that the hearsay testimony was not
admissible as statements with equivalent circumstantial guarantees of trustworthiness under
MRE 803(24) or as prior consistent statements under MRE 801(d)(1)(B). However, regardless
of whether the statements were admissible under MRE 803(24) or MRE 801(d)(1)(B), we
conclude that the hearsay statements were admissible pursuant to MCL 768.27c. Again, we
review unpreserved claims of evidentiary error for plain error affecting a defendant’s substantial
rights. Carines, 460 Mich at 763-764; Coy, 258 Mich App at 12.
Prior to trial, the prosecution filed a notice of intent to use hearsay statements made by
the victim to Theisen, Scher, and Spencer regarding the assault pursuant to MCL 768.27c. MCL
768.27c specifies that hearsay statements may be admissible at trial in some situations involving
offenses of domestic violence, subject to a list of prerequisites. MCL 768.27c states, in relevant
part:
(1) Evidence of a statement by a declarant is admissible if all of the following
apply:
(a) The statement purports to narrate, describe, or explain the infliction or threat
of physical injury upon the declarant.
(b) The action in which the evidence is offered under this section is an offense
involving domestic violence.
(c) The statement was made at or near the time of the infliction or threat of
physical injury. Evidence of a statement made more than 5 years before the filing
of the current action or proceeding is inadmissible under this section.
(d) The statement was made under circumstances that would indicate the
statement's trustworthiness.
(e) The statement was made to a law enforcement officer.
(2) For the purpose of subsection (1)(d), circumstances relevant to the issue of
trustworthiness include, but are not limited to, all of the following:
(a) Whether the statement was made in contemplation of pending or anticipated
litigation in which the declarant was interested.
(b) Whether the declarant has a bias or motive for fabricating the statement, and
the extent of any bias or motive.
(c) Whether the statement is corroborated by evidence other than statements that
are admissible only under this section.
At trial, Theisen, Scher, and Spencer each testified regarding how the victim described
the assault. MCL 768.27c(1)(a). The assault involved domestic violence, which is defined as an
offense where the defendant caused or attempts to cause “physical or mental harm to a family or
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household member,” MCL 768.27c(5)(b)(i), and “family or household member” includes a
former spouse, an individual with whom the defendant has resided, and an individual with whom
the defendant has a child in common, MCL 768.27c(5)(c). In this case, the victim told Theisen,
Scher, and Spencer that her ex-husband, defendant, who was the father of her children and
previously resided with her, had committed the assault, thus satisfying the domestic violence
requirement under MCL 768.27c(1)(b).
In addition, the victim made the relevant statements to Theisen mere minutes after the
assault and then additional statements to Scher and Spencer at the hospital, which was, at the
most, within a couple of hours after the assault. Thus, the statements were made near the time of
the infliction of physical injury in satisfaction of MCL 768.27c(1)(c). Next, the statements were
made under circumstances that would indicate the statements’ trustworthiness under MCL
768.27c(1)(d). There was no evidence that the statements were made in contemplation of
pending or anticipated litigation in which the victim was interested, and no evidence that the
victim had a bias or motive for fabricating the statements. The statements were also
corroborated by other evidence such as the victim’s head wounds, trails of blood in the house
where the assault occurred, and the fact that the bracelet belonging to defendant was recovered
from the floor near the front door of the house. MCL 768.27c(2). Lastly, the relevant statements
were all made to law enforcement officers, satisfying MCL 768.27c(1)(e). Thus, because the
victim’s hearsay statements were properly admitted under MCL 768.27c, defendant has failed to
establish plain error.
Next, defendant argues that he was denied the effective assistance of counsel by his
counsel’s failure to object to Spencer’s testimony regarding the victim’s demeanor and the
testimony from Theisen, Scher, and Spencer regarding the victim’s statements about the assault.
We disagree.
As we previously discussed, Spencer’s testimony regarding the victim’s demeanor and
Theisen’s, Scher’s and Spencer’s testimony regarding the victim’s statements about the assault
were properly admitted. Therefore, defense counsel’s failure to object to this testimony was not
unreasonable and counsel is not ineffective for failing to advocate meritless or futile positions.
People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
Defendant also argues that there is insufficient evidence to support his conviction of
assault with intent to murder because the evidence does not support that he had the intent to
murder. Defendant contends that without evidence of serious injury to the victim and evidence
regarding the weight of the club used in the assault, there is merely evidence of assault with
intent to do great bodily harm, not assault with intent to murder. We disagree.
We review a challenge to the sufficiency of evidence de novo. People v Cline, 276 Mich
App 634, 642; 741 NW2d 563 (2007). We must “‘view the evidence in a light most favorable to
the prosecution and determine if any rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.’” Id., quoting People v Wolfe, 440 Mich 508,
515; 489 NW2d 748, amended 441 Mich 1201 (1992).
When reviewing a sufficiency of evidence claim, all conflicts in the evidence must be
resolved in favor of the prosecution. People v McRunels, 237 Mich App 168, 181; 603 NW2d 95
(1999). It is solely the trier of fact’s role to weigh the evidence and judge the credibility of
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witnesses. Wolfe, 440 Mich at 514. Therefore, “[i]t is for the trier of fact, not the appellate
court, to determine what inferences may be fairly drawn from the evidence and to determine the
weight to be accorded those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002).
A conviction of assault with intent to commit murder requires proof of the following
elements: “(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make
the killing murder.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (internal
quotations and citations omitted). Defendant disputes only the mens rea element, that is, whether
he possessed the intent to kill. “Because of the difficulty of proving an actor’s state of mind,
minimal circumstantial evidence is sufficient to establish a defendant’s intent to kill.” People v
Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008).
The evidence, viewed in the light most favorable to the prosecution, shows that defendant
attacked the victim in her bedroom, striking her between 20 and 25 times with a metal and rubber
bludgeon. Defendant struck the victim repeatedly in the head. After the victim’s daughter
appeared in the doorway, the victim told her to call the police, which caused defendant to chase
after the victim’s daughter. The victim suffered bruising on her shoulders, neck, arms, hands,
and face, as well as two deep lacerations on her head that caused profuse bleeding and required
13 stitches and 13 staples to close. Although defendant did not inflict fatal or even near lifethreatening injuries, proof of physical injury is not necessary to establish intent to kill. See
People v Davis, 216 Mich App 47, 53; 549 NW2d 1 (1996). Based on the nature of the assault in
which defendant repeatedly used a bludgeon to strike the victim in the head, and because there is
no indication that defendant would have ceased his attack if not for the victim’s daughter going
to call the police, the evidence was sufficient to permit a rational juror to conclude beyond a
reasonable doubt that defendant acted with an intent to kill.
In addition, defendant argues that the flight instruction was improper because of evidence
that defendant reported for work the next morning, which shows that he was not attempting to
elude the police. Defendant also contends that the flight instruction was confusing and suggested
that identification of the perpetrator was not in doubt. We disagree.
We review jury instructions in their entirety to determine if there is error that requires
reversal. People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). To the extent that
defendant argues a violation of due process, this argument is reviewed for plain error affecting
defendant’s substantial rights because it is unpreserved. Carines, 460 Mich at 763-764.
“Instructions that are somewhat imperfect are acceptable, as long as they fairly present to
the jury the issues to be tried and sufficiently protect the rights of the defendant.” People v
Perry, 218 Mich App 520, 526; 554 NW2d 362 (1996), aff’d 460 Mich 55 (1999). “Jury
instructions must include all the elements of the charged offense and must not exclude material
issues, defenses, and theories if the evidence supports them.” People v Piper, 223 Mich App
642, 648; 567 NW2d 483 (1997). In addition, to give a particular instruction to the jury, there
must be evidence to support it. People v Johnson, 171 Mich App 801, 804; 430 NW2d 828
(1988).
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The trial court gave the following instruction on flight, which was based on CJI2d 4.4,
the standard flight instruction:
There’s been some evidence that the defendant ran away after the alleged crime
he is accused of committing. This evidence is not to prove guilt. A person may
run or hide for innocent reasons such as panic, mistake or fear.
However, a person may also run or hide because of a consciousness of guilt. You
must decide whether the evidence is true, and if true, whether it shows the
defendant had a guilty state of mind.
It is “well established that evidence of flight is admissible to show consciousness of
guilt.” People v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001). The term “flight”
encompasses fleeing the scene of the crime, leaving the jurisdiction, running from the police,
resisting arrest, and attempting to escape custody. People v Coleman, 210 Mich App 1, 4; 532
NW2d 885 (1995).
In this case, there was evidence that defendant fled the scene of the crime. The victim
testified that, during the assault, she repeatedly yelled for her daughter to call the police.
Defendant ceased his assault only after these repeated requests and defendant’s unsuccessful
attempt to access the victim’s daughter’s room. The victim also testified that defendant had his
car backed into the driveway so he was able to pull quickly onto the street. This evidence
supports a conclusion that defendant fled the scene of the crime to avoid capture by the police.
Further, the instruction was based on the standard flight instruction and did not indicate that
identification of the perpetrator had been established. Thus, the jury instruction on flight was
proper and defendant has failed to show error.
Last, defendant argues that, under MCR 6.425(E)(1)(c), the trial court violated his right
to allocution by denying his request to have a friend speak on his behalf at his resentencing. We
disagree.
We review a trial court’s decision regarding whether to allow someone other than the
defendant, the defendant’s counsel, the prosecutor, or the victim to address the court at
sentencing for an abuse of discretion. See People v Waclawski, 286 Mich App 634, 691; 780
NW2d 321 (2009), citing People v Albert, 207 Mich App 73, 74; 523 NW2d 825 (1994). Also,
we review the interpretation of a court rule de novo. People v Lacalamita, 286 Mich App 467,
472; 780 NW2d 311 (2009).
Under MCR 6.425(E)(1)(c), the court, on the record, must “give the defendant, the
defendant’s lawyer, the prosecutor, and the victim an opportunity to advise the court of any
circumstances they believe the court should consider in imposing sentence.” The clear language
of this court rule does not require the trial court to permit friends of a defendant to speak on the
defendant’s behalf. Further, the trial court is afforded broad discretion in determining who may
speak at sentencing outside of the parties named in MCR 6.425(E)(1)(c). Albert, 207 Mich App
at 74-75. As the prosecution argues, this Court has held that a trial court does not abuse its
discretion or violate a defendant’s right to allocution by denying a defendant’s friends or family
the opportunity to address the court at sentencing. People v Lawson, 172 Mich App 498, 500-
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501; 432 NW2d 354 (1988). Thus, the trial court did not abuse its discretion in refusing to allow
defendant’s friend to speak on defendant’s behalf at his resentencing.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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