PEOPLE OF MI V LAURINO JAMES SCAFONE (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 19, 2012
Plaintiff-Appellee,
v
No. 298072
Oakland Circuit Court
LC No. 2009-008934-AR
LAURINO JAMES SCAFONE,
Defendant-Appellant.
ON REMAND
Before: WILDER, P.J., and CAVANAGH and DONOFRIO, JJ.
PER CURIAM.
In a previous opinion, we reversed defendant’s bench trial conviction of aggravated
assault, MCL 750.81a, after concluding his claim that “the trial court failed to inform him of his
right to a jury trial” was meritorious and constituted structural error warranting a new trial.1
Thereafter, the prosecution sought leave to appeal on the grounds that “a previously unknown
transcript” of the waiver proceeding was discovered. In lieu of granting leave to appeal, our
Supreme Court vacated our opinion and remanded for reconsideration in light of the newly
discovered transcript. The Supreme Court further directed that we consider defendant’s claim of
ineffective assistance of counsel if we conclude that defendant validly waived his right to a jury
trial.2 After consideration of these issues, defendant’s bench trial conviction is affirmed.
As explained by this Court in People v Cook, 285 Mich App 420; 776 NW2d 164 (2009):
The adequacy of a jury trial waiver is a mixed question of fact and law. A
criminal defendant has a constitutionally guaranteed right to a jury determination
that he is guilty beyond a reasonable doubt. However, with the consent of the
prosecutor and the approval of the trial court, a defendant may waive his right to a
1
People v Scafone, unpublished opinion per curiam of the Court of Appeals, issued December 1,
2011 (Docket No. 298072).
2
People v Scafone, 491 Mich 876; 809 NW2d 599 (2012).
-1-
jury trial. In order for a jury trial waiver to be valid, however, it must be both
knowingly and voluntarily made. [Id. at 422 (citations omitted.]
Criminal procedure in district court is governed by MCR 6.610. Pursuant to that rule, a
defendant must be informed of certain rights, including his right to a jury trial, which is not
deemed waived unless the defendant has been informed of the right and has waived that right in
writing or orally on the record. MCR 6.610(D)(3). Compliance with the court rule ensures that a
waiver is knowingly and voluntarily made. Cook, 285 Mich App at 422 (citing MCR 6.402(B),
the rule setting out the procedure for waiver of a jury trial in circuit court).
Here, the newly discovered transcript reveals that defendant appeared before the district
court on the date originally set for jury selection and knowingly and voluntarily waived his right
to a jury trial. First, the district court noted on the record that its understanding was that the
parties had agreed to proceed with a bench trial, waiving their rights to a jury trial. Then the
district court spoke directly to defendant and explained that a bench trial meant that his guilt or
innocence would be decided by the court rather than a jury of six persons. The court then asked
defendant: “Do you understand and agree to that?” Defendant answered in the affirmative. The
court also asked defendant if anybody had threatened him or promised him anything to waive his
right to a jury trial and defendant responded in the negative. Thereafter the court held: “Based
upon your representations, we will waive your right to a jury [and] schedule this for a bench
trial.” We conclude that this proceeding complied with MCR 6.610(D)(3) and that defendant
validly waived his right to a jury trial.
Next, we consider defendant’s claim that he was denied the effective assistance of
counsel because his counsel did not call him to testify in his own defense. To succeed on a claim
of ineffective assistance of counsel, a defendant must show that his counsel’s performance fell
below an objective standard of reasonableness and there is a reasonable probability that, but for
counsel’s error, the result would have been different. People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007). In this case, our review is limited to errors apparent on the record
because a Ginther3 hearing was not held. See id.
Defendant claims that if he had been called as a witness, his testimony would likely have
changed the outcome of the trial because “[a]nyone who looked at [him] would most certainly
doubt whether [he] was even physically able to attack a much younger, fitter man, let alone
whether [he] was likely to get the better of such a man.” This claim is without merit. First, this
was a bench trial and defendant was present during the proceedings which would have given the
court plenty of opportunity to note defendant’s physical condition. Second, 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.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). Third, the
record showed that defendant voluntarily chose not to testify. Specifically, when the trial court
asked defense counsel if he had any more witnesses to call, counsel replied “[y]our honor, I have
conferred with [defendant] and I don’t believe that he will take the stand and testify.” Defendant
3
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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was present at the time his counsel advised the court that he and defendant had arrived at this
decision and defendant never contested that statement or otherwise expressed a wish to testify.
See People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985). Accordingly,
defendant’s claim of ineffective assistance of counsel is without merit.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Pat M. Donofrio
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