PEOPLE OF MI V NATHAN ANTHONY HAYESAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 22, 1998
Kalamazoo Circuit Court
LC No. 95-000831 FC
NATHAN ANTHONY HAYES,
Before: Fitzgerald, P.J., and Holbrook, Jr. and Cavanagh, JJ.
Defendant appeals as of right his jury convictions of armed robbery, MCL 750.529; MSA
28.797, conspiracy to commit armed robbery, MCL 750.157a; MSA 28.354(1), and possession of a
firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was
sentenced to concurrent prison terms of twenty to thirty years for both the armed robbery and
conspiracy convictions, to be served consecutive to a two-year term for the felony-firearm conviction.
The victim was accosted by two men wearing masks as she was leaving St. Mary’s church in
Kalamazoo. While brandishing a gun, one of the perpetrators commanded the victim to drop her purse
and to lie face down on the ground, and threatened to shoot her. The perpetrators then absconded with
the purse and other items. At trial, Nicole Thompson (defendant’s former girlfriend), Charles Olinger,
Charles Lewis, and Steven Harper testified that defendant had boasted to them that he and a man
named Bo had robbed a woman at the same church at gunpoint while wearing masks. Thompson also
testified that defendant had brought back to the house a dark purse containing credit cards and other
items immediately following the armed robbery.
Defendant first asserts that the trial court erred by impaneling an “anonymous” jury.
Defendant’s argument is based solely on the fact that the jurors were referred to by badge numbers.
Defendant has not supplied this Court with any evidence that the jury selected in this case was actually
“anonymous.” No evidence has been presented indicating that defendant and defense counsel lacked
access to the juror’s names and/or questionnaires. Indeed, the examination of the prospective jurors by
trial counsel suggests that both counsel possessed knowledge of the jurors’ background information.
Thus, this issue as presented is without merit.
Defendant also claims that the trial court abused its discretion by admitting a double hearsay
statement of an alleged informant who never testified at trial. However, any error in the admission of the
evidence was harmless in light of the overwhelming testimony of the victim as well as the four witnesses
who testified that defendant admitted to them that he had robbed a woman at gunpoint at St. Mary's
church. People v Swint, 225 Mich App 353, 379; 572 NW2d 666 (1997).
Defendant next argues that the prosecution engaged in misconduct in eliciting testimony that a
gun belonging to defendant had been used in an unrelated matter. The record reveals, however, that the
prosecution did not attempt to elicit evidence from the witness with regard to the unrelated event
involving defendant and that the witness’ statement was made in a non-responsive fashion. Hence, the
prosecutor is not responsible for the introduction of the evidence. People v Bryan, 92 Mich App 208,
220; 284 NW2d 765 (1979).
Defendant finally claims that he was denied the effective assistance of counsel at trial.
Defendant did not move for a new trial or a Ginther1 hearing below. Therefore, our review of
defendant’s claim of ineffective assistance of counsel is limited to mistakes apparent on the record.
People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994). This Court will find ineffective
assistance of counsel only where a defendant demonstrates that counsel’s performance fell below an
objective standard of reasonableness and that the representation prejudiced defendant to the extent that
it denied him a fair trial. People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994).
First, defense counsel’s elicitation that defendant had been incarcerated before his arrest on the
present charges was not prejudicial in light of the fact that the prosecution had already presented
evidence that would have clearly suggested to the jury that defendant had been incarcerated on a
separate, unrelated matter at the time of an interview regarding the present case. Second, defendant has
failed to show how counsel’s failure to object to a police officer’s testimony that there were three
warrants for defendant’s arrest caused him prejudice. Third, with regard to defendant’s claim that
counsel improperly elicited testimony that defendant had allegedly permitted his brother to beat up a
neighbor and break that person’s television set, we note that defendant has mischaracterized the record
developed at trial. This evidence was not, in fact, purposefully elicited but was instead volunteered by
the witness in a non-responsive manner. Defense counsel immediately stated on the record that the
testimony had not been in response to her question, but did not request the trial court to strike the
statement or instruct the jury that it should disregard the comment. However, such an omission may be
considered sound trial strategy. Indeed, the damaging testimony had already been inadvertently uttered
before the jury. Lodging an objection may have attracted additional, unwarranted attention to the
introduction of the non-responsive testimony. Fourth, defendant’s claim that defense counsel
improperly elicited testimony that defendant had allegedly made indirect threats against him again
mischaracterizes the record. On direct examination by the prosecutor, a witness testified threats had
been made against himself and his family as a result of his cooperation with the authorities in the present
case. The witness did not identify the source of those threats, but the testimony suggested that the
threats were made by defendant. The record suggests that defense counsel cross-examined the witness
to clarify t e alleged source of the threats. The witness then stated that defendant had indirectly
threatened him. If defense counsel had not diligently probed into the witness’s past statement under
direct examination, the jury could have been left with the impression that defendant had directly
threatened the witness. Hence, we find no prejudice to defendant as a result of the questioning.
Finally, defendant relies on materials outside of the record to support his argument that trial
counsel failed to produce witnesses who have offered exculpatory evidence and, therefore, this
argument is not properly before this Court.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, jr.
/s/ Mark J. Cavanagh
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).