PEOPLE OF MI V DARRELL LASHION DIXON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 24, 2004
9:05 a.m.
Plaintiff-Appellee,
v
No. 246739
Oakland Circuit Court
LC No. 02-185376-FC
DARRELL LASHION DIXON,
Defendant-Appellant.
Official Reported Version
Before: Schuette, P.J., and Bandstra and Cooper, JJ.
COOPER, J.
Defendant Darrell Lashion Dixon appeals as of right his jury trial convictions of two
counts of first-degree criminal sexual conduct (CSC),1 first-degree home invasion,2 and felonious
assault.3 Defendant was sentenced to twenty-five to fifty years' imprisonment for each CSC
conviction, ten to twenty years' imprisonment for his first-degree home invasion conviction, and
two to four years' imprisonment for his felonious assault conviction. We reverse and remand for
further proceedings consistent with this opinion.
I. Facts
Defendant's convictions arose from the alleged forcible rape of his ex-girlfriend. The
complainant testified that on June 29, 2002, defendant entered her apartment, wearing a ski mask
and gloves, by kicking in her door. Defendant threatened the complainant and her friend, Tyrone
Mason, with a machete. After defendant coerced Mr. Mason into leaving, defendant twice
sexually assaulted the complainant with her two-year-old son present.
II. Ineffective Assistance of Counsel
1
MCL 750.520b.
2
MCL 750.110a(2).
3
MCL 750.82.
-1-
Defendant raises several claims of ineffective assistance of counsel. Specifically,
defendant alleges that defense counsel was ineffective for failing to meet with him prior to trial,
to file a notice of intent to present evidence pursuant to the Michigan rape shield law, to lay the
proper foundation for the admission of the complainant's 911 call, to present the defense of
consent to the CSC charges, and to object at defendant's sentencing hearing to the scoring of
offense variable (OV) 10. Absent a Ginther4 hearing, our review is limited to the existing
record.5
Effective assistance of counsel is presumed, and defendant bears a heavy burden to prove
otherwise.6 To establish ineffective assistance of counsel, defendant must prove that counsel's
deficient performance denied him the Sixth Amendment right to counsel and that, but for
counsel's errors, the proceedings would have resulted differently.7 Defendant must overcome the
strong presumption that counsel's performance was sound trial strategy.8
Defendant first argues that defense counsel's failure to meet with him until immediately
before the preliminary examination and her complete failure to meet with him between the
preliminary examination and trial constituted a "complete denial of counsel" at a "critical stage"
of the proceeding, and that he is entitled to a new trial without any showing of substantial
prejudice.9 "The pre-trial period constitutes a 'critical period' because it encompasses counsel's
constitutionally imposed duty to investigate the case."10 However, defendant concedes
elsewhere in his brief that defense counsel did, in fact, meet with him before the preliminary
examination.11 The preliminary examination transcript reveals that defense counsel had been
apprised of the relevant facts of the case, and that she asked the complainant questions designed
to undermine her credibility and reveal her motivation for accusing defendant. Although defense
counsel's errors at trial may have resulted from her lack of attention to defendant's case prior to
trial, defendant has failed to provide any evidence in this regard. We, accordingly, decline to
grant defendant a new trial on this basis alone.
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
5
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
6
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
7
People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
8
Id. at 600.
9
Bell v Cone, 535 US 685, 695-696; 122 S Ct 1843; 152 L Ed 2d 914 (2002); United States v
Cronic, 466 US 648, 659; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
10
Mitchell v Mason, 325 F3d 732, 743 (CA 6, 2003).
11
See Dick v Scroggy, 882 F2d 192, 197 (CA 6, 1989), cited in Mitchell, supra at 744 (rejecting
the defendant's ineffective assistance claim as counsel actually interviewed the defendant in a
thirty to forty-five minute meeting).
-2-
Defendant next argues that defense counsel was ineffective for failing to lay a proper
foundation for the admission of the complainant's recorded conversation with a 911 operator.
The record reveals that defense counsel unsuccessfully attempted to lay the proper foundation.
Defense counsel did elicit the substance of the conversation between the complainant and the
911 operator on cross-examination of the complainant. The complainant testified to waiting an
hour and a half to call 911, claimed that she was not upset when she called and spoke to the
operator in an extremely calm voice, and admitted to lying regarding the nature of her
emergency.
Although the substance of the call reached the jury, defendant contends that hearing the
complainant's calm voice during the call was necessary to undermine her credibility. We agree.
Without any physical evidence this case amounted to a close credibility contest. Defense
counsel's failure to have admitted evidence critical to the issue of the credibility of the
complainant was likely outcome determinative.12 Therefore, defendant is entitled to a new trial
on this ground.
Defendant asserts that defense counsel was ineffective for failing to present the defense
of consent to the first-degree CSC charges, and by failing to call defendant to testify that his
sexual interaction with the complainant was consensual. However, "[d]ecisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy,"13 which we will not second-guess with the benefit of hindsight.14 Furthermore, the
failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense.15 The record reveals that defense counsel raised the defense
of consent through her cross-examination of the complainant, and sought to bolster that defense
by attacking her credibility. Defense counsel bolstered this theory in closing argument. As the
defense of consent was actually raised, defendant's contention is without merit.
Defendant also contends that defense counsel was ineffective for failing to file a notice of
intent to introduce evidence of the complainant's past sexual conduct with defendant as required
by the Michigan rape shield law.16 As a result of this error, the jury did not hear evidence
regarding an incident of consensual intercourse between defendant and the complainant a week
before the alleged sexual assault.
At trial, defense counsel conceded that she had not complied with the notice requirement
set out in MCL 750.520j(2), but argued that the purpose of the notice requirement was fulfilled,
12
The failure to introduce this evidence for the jury's consideration had the same impact
regardless of whether it resulted from counsel's ineffectiveness or, as Judge Schuette's opinion
concludes, from the trial court's error.
13
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
14
People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
15
People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990).
16
MCL 750.520j.
-3-
as the prosecution was made aware of the prior sexual relationship by the complainant's
testimony at the preliminary examination. Defense counsel further argued that the evidence was
admissible because it was relevant and supported defendant's theory that the intercourse was
consensual in this instance.17
This Court has held that failure to comply with the notice requirement of MCL 750.520j
does not necessarily preclude the admission of evidence of past sexual relations between a victim
and a defendant.18 In People v Lucas (On Remand), this Court found that the exclusion of
evidence regarding past sexual activity between the defendant and the victim could violate a
defendant's Sixth Amendment right of confrontation.19 Where no notice is filed, the trial court
must determine whether the evidence is admissible on a case-by-case basis considering whether
the defendant's timing of the offer to produce such evidence suggests an improper tactical
purpose,20 and whether the probative value of the evidence outweighs its prejudicial effect.21
The trial court failed to consider on the record the import of defense counsel's timing and
to weigh the probative value of this evidence. It is clear from the record, however, that the trial
court determined to exclude this evidence based on defense counsel's failure to file a notice of
intent. Evidence of the recent consensual sexual activity between defendant and the complainant
is highly probative and very likely outcome determinative. Defense counsel was constitutionally
deficient for failing to file the required notice of intent to produce this evidence. The failure of
defense counsel to meet with her client between the preliminary examination and trial in this
capital case; the failure to lay a proper foundation for admission of the 911 tape, in addition to
the failure to provide notice pursuant to MCL 750.520j(2), cumulatively and effectively deprived
defendant of his Sixth Amendment right to counsel. Defendant is, therefore, entitled to a new
trial.
Defendant also challenges the trial court's denial of his motion for a Ginther hearing on
remand from this Court and raises several issues with regard to his sentence. It is axiomatic that
when this case was remanded to the trial court, it was for the purpose of holding the Ginther
hearing. However, as we have determined that defendant is entitled to a new trial, the issue is
now moot.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Jessica R. Cooper
17
See People v Perkins, 424 Mich 302, 307-308; 379 NW2d 390 (1986) (evidence of past sexual
relationship between a defendant and a victim is probative).
18
People v Lucas (On Remand), 193 Mich App 298, 303; 484 NW2d 685 (1992).
19
Id. at 302.
20
Id. at 302-303.
21
Perkins, supra at 307-308.
-4-
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.
