PEOPLE OF MI V LARRY C ALLENAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 30, 1998
LC No. 96-002688
LARRY C. ALLEN,
Before: Markey, P.J., and Sawyer and Whitbeck, JJ.
Defendant appeals as of right from his bench trial conviction for possession of less than twenty
five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v). Defendant was
sentenced to four to eight years’ imprisonment as a third habitual offender, MCL 769.11; MSA
28.1083. We affirm.
Defendant first argues that he was denied effective assistance of counsel at trial. We disagree.
Because defendant failed to move for a new trial or evidentiary hearing in the trial court, our review is
limited to errors by counsel evident in the existing trial record. People v Marji, 180 Mich App 525,
533; 447 NW2d 835 (1989).
To establish a denial of effective assistance of counsel, a defendant must demonstrate that
counsel’s performance was objectively deficient and that the deficiency was prejudicial to the defendant.
People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Furthermore, the defendant must
overcome the presumption that the challenged action was sound trial strategy. Daniel, supra, 207
Mich App 58.
Defendant argues that he had a property interest in the house where the items were seized. He
claims that counsel’s failure to move to suppress the evidence was prejudicial to his case. While it is
true that defense counsel did not make a motion to suppress the evidence, the evidence presented at
trial dealt primarily with whether the house was inhabited and whether defendant, in fact, had any
reasonable expectation of privacy. Defense counsel used the fact that defendant may have leased the
premises as impeachment evidence against the prosecution’s witnesses. Throughout defense counsel’s
questioning of both witnesses, he attempted to discredit their testimony that the house was not lived in as
well as their testimony concerning the events of the night in question. Defendant has failed to overcome
the presumption that the challenged conduct was sound trial strategy. Daniel, supra, 207 Mich App
In addition, defendant has not demonstrated that, but for his counsel’s “errors,” there was a
reasonable probability that the result of his trial would have been different or that the proceedings were
fundamentally unfair or unreliable. People v Poole, 218 Mich App 702, 718; 555 NW2d 485 (1996).
The trial court concluded that a lease purporting to grant defendant interest in the house held little or no
evidentiary value for defendant’s case where the alleged lessor did not have record title to the premises.
It is not counsel’s fault that defendant’s purported lease was not introduced into evidence where
defendant was unable to reveal any information about the lessor or where the lessor could possibly be
found. Thus, defendant’s argument that he had an interest in the house held no value with the court.
Instead, the court considered the testimony of two police officers and concluded that defendant was
guilty. There is no evidence that the court’s verdict would have been different but for counsel’s actions.
Defendant also claims that counsel was not adequately prepared for trial, evidenced by
counsel’s failure to properly cross-examine the prosecution’s witnesses, failure to set forth a defense by
calling witnesses for defendant, and failure to introduce the lease into evidence. Where a defendant
claims ineffective assistance of counsel due to counsel’s failure to adequately prepare for trial, a
defendant must show prejudice resulting from lack of preparation. People v Caballero, 184 Mich App
636, 640; 459 NW2d 80 (1990). Where a defendant claims that counsel was ineffective for failure to
call witnesses or present other evidence, a defendant must show that the attorney’s conduct deprived
him of a substantial defense. People v Julian, 171 Mich App 153, 159; 429 NW2d 615 (1988). This
Court is not convinced that counsel was not properly prepared for trial to the extent that his conduct
prejudiced defendant or deprived him of a substantial defense. Defense counsel was able to challenge
the testimony of the prosecution’s witnesses on cross-examination. He also attempted to support
defendant’s testimony through use of the lease. As discussed above, defendant has failed to show that
the results of trial would have been different under the circumstances.
Defendant next argues that the trial court pierced the veil of judicial impartiality by conducting its
own investigation as to the record owner of the property, thereby denying defendant his constitutional
right to a fair and impartial trial. We disagree. Because defendant did not object to the trial court’s
action during trial, this Court will review the matter only if manifest injustice would result from failure to
consider the issue. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995)
A defendant in a criminal trial should be able to expect that a “neutral and detached magistrate”
will preside over his case. People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996).
However, when it comes to trial conduct and process, the trial court is granted wide, yet limited,
discretion. Paquette, supra, 214 Mich App 340; MRE 611(a). For example, while a trial court may
question witnesses in order to determine an issue relevant to trial, the court must take care to not invade
the role of the prosecutor. People v Conyers, 194 Mich App 395, 404; 487 NW2d 787 (1992);
People v Ross, 181 Mich App 89, 91; 449 NW2d 107 (1989). When determining whether the court
acted with bias against a defendant, the record should be read as a whole and not merely in portions.
Paquette, supra, 214 Mich App 340. In a jury trial, the court pierces the veil of impartiality ”where its
conduct or comments unduly influence the jury and thereby deprive the defendant of a fair and impartial
trial.” Id. By analogy, the court in a bench trial pierces the veil where its conduct indicates bias or
partiality toward a party, thereby denying the defendant a fair and impartial trial.
The court in this case was merely trying to control the conduct of trial. Paquette, supra, 214
Mich App 336. The court’s actions did not indicate that it was partial to either party. Rather, the
court’s telephone call to the Register of Deeds was its way of expediting the proceedings. The case had
already been adjourned once in order to allow defense counsel to bring forth evidence regarding the
lease. When the parties returned to court two weeks later, defense counsel presented a copy of the
alleged lease, but he and his client were unable to locate the lessor to verify its authenticity. At this time,
defense counsel requested that the court appoint a private investigator to determine who was the record
holder of the property. Defendant made no objection when the court indicated that it would find out on
its own. The court exercised reasonable control of the proceedings in avoiding the “needless
consumption of time” for the “ascertainment of the truth.” MRE 611(a). There is absolutely no
evidence that the court’s actions were the result of a bias toward defendant, nor does defendant
challenge the accuracy of the information. Defendant received a fair and impartial trial. People v Cole,
349 Mich 175, 187; 84 NW2d 711 (1957); Cheeks, supra, 216 Mich App 480-481.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ William C. Whitbeck