PEOPLE OF MI V DONALD MERRITT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2001
Plaintiff-Appellee,
v
No. 223007
Wayne Circuit Court
LC No. 99-000122
DONALD MERRITT,
Defendant-Appellant.
Before: Saad, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions, following a jury trial, of two counts
of armed robbery, MCL 750.529, one count of assault with intent to rob while armed, MCL
750.89, one count of carjacking, MCL 750.529a, three counts1 of first-degree criminal sexual
conduct, MCL 750.520b(1)(c) (penetration during commission of other felony) and (e)
(penetration while actor is armed with a weapon), and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to concurrent terms
of thirty to sixty years’ imprisonment for each of the armed robbery, assault with intent to rob
while armed, carjacking, and criminal sexual conduct convictions, to be served consecutively to
the mandatory two-year term for the felony-firearm conviction. We affirm.
On appeal, defendant first argues that the trial court abused its discretion in denying his
request for an adjournment and for substitute counsel. We disagree. “A trial court’s decision
regarding substitution of appointed counsel will not be disturbed absent an abuse of discretion.”
People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). In Traylor, a panel of this
Court addressed the substitution of counsel:
“An indigent defendant is guaranteed the right to counsel; however, he is not
entitled to have the attorney of his choice appointed simply by requesting that the
attorney originally appointed be replaced. Appointment of a substitute counsel is
warranted only upon a showing of good cause and where substitution will not
unreasonably disrupt the judicial process. Good cause exists where a legitimate
1
According to the judgment of sentence, three additional convictions of first-degree criminal
sexual conduct were vacated by the trial court.
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difference of opinion develops between a defendant and his appointed counsel
with regard to a fundamental trial tactic.” [Id., quoting People v Mack, 190 Mich
App 7, 14; 475 NW2d 830 (1991) (citations omitted).]
In this case, the trial court did not abuse its discretion in denying defendant’s request for
substitute counsel because defendant failed to show good cause. On appeal, defendant maintains
that he sought substitute counsel because his appointed counsel refused to challenge the
trustworthiness of defendant’s confession to the police. However, our review of the record
reveals that appointed counsel filed a pretrial motion to suppress the statement on August 4,
1999. The trial court denied this motion following an evidentiary hearing. Similarly, to the
extent that defendant also argues that appointed counsel failed to challenge the victims’
identifications of defendant, a review of the record reveals that appointed counsel pointed out the
weaknesses in the victims’ identification of defendant during cross-examination of the witnesses.
Thus, defendant suffered no prejudice. Traylor, supra at 463.
Moreover, defendant raises these concerns for the first time on appeal. At the motion for
adjournment held on August 30, 1999, the day before trial, defendant did not articulate good
cause for obtaining substitute counsel. Rather, defendant’s desired substitute counsel merely
indicated that defendant’s family had gathered money to pay for another attorney and were
prepared to retain him if the court allowed the substitution. On the first day of trial, defendant
again raised this issue. When the trial court asked him what he would like to say, he stated only,
“I am not comfortable with [appointed counsel] being my attorney . . . [a]nd I don’t want to go to
trial with him.”2 On this record, we are not persuaded that the trial court abused its discretion in
denying defendant’s request for substitute counsel.
Defendant next argues that he was denied effective assistance of counsel. We disagree.
Defendant filed a claim of appeal on October 25, 1999. This Court remanded for a Ginther3
hearing in an order entered November 8, 2000. Following the January 11, 2001, Ginther
hearing, defendant moved for a new trial. The trial court denied this motion in an opinion and
order entered February 28, 2001. Specifically, the trial court found that defendant had failed to
establish that trial counsel’s performance was deficient in any manner.
A claim of ineffective assistance of counsel raises a constitutional issue. This Court
reviews de novo constitutional issues. People v Houstina, 216 Mich App 70, 73; 549 NW2d 11
(1996). To establish ineffective assistance of counsel, defendant must show (1) that trial
counsel’s performance fell below an objective standard of reasonableness, and (2) that he was
prejudiced to the extent that he was denied a fair trial. People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000). To satisfy the prejudice requirement, defendant must demonstrate “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
2
To the extent that defendant claims in his brief on appeal that the trial court was required to
inquire whether defendant’s allegations of a breakdown in the attorney-client relationship were
true, People v Bass, 88 Mich App 793, 802; 279 NW2d 551 (1979), we are not persuaded that
defendant’s comment that he was not “comfortable” with his attorney, standing alone, imposed
such a duty on the trial court.
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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would have been different.’” Id. at 302-303, quoting People v Mitchell, 454 Mich 145, 167; 560
NW2d 600 (1997).
Defendant must also overcome the well-established presumption that his counsel’s action
was the product of sound trial strategy. Toma, supra at 302. Decisions regarding what evidence
to present and whether to call or question witnesses are presumed to be matters of trial strategy.
In re Ayres, 239 Mich App 8, 23; 608 NW2d 132 (2000). This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's
competence with the benefit of hindsight. People v Barnett, 163 Mich App 331, 338; 414 NW2d
378 (1987).
Defendant initially argues that defense counsel was ineffective in failing to request that
the trial court instruct the jury in conformance with CJI2d 4.1.4 We disagree. As an initial
matter, we note that defense counsel’s decisions regarding jury instructions are presumed to be
matters of trial strategy. People v Rice (On Remand), 235 Mich App 429, 444-445; 597 NW2d
843 (1999). As the trial court noted in its findings following the Ginther hearing, during trial
defendant did not seriously dispute that he made the challenged statement. Rather, defendant
primarily asserted that he was not competent to waive his Miranda5 rights. As the trial court
aptly observed:
Trial counsel was not ineffective because he failed to request the confessions
instruction because no question was raised concerning the voluntariness of the
statement, there was no dispute that defendant made the statement, and there was
4
CJI2d 4.1 provides:
(1) The prosecution has introduced evidence of a statement that it claims the
defendant made. You cannot consider such an out-of-court statement as evidence
against the defendant unless you do the following:
(2) First, you must find that the defendant actually made the statement as it
was given to you. If you find that the defendant did not make the statement at all,
you should not consider it. If you find that [he / she] made part of the statement,
you may consider that part as evidence.
(3) Second, if you find that the defendant did make the statement you must
decide whether the whole statement, or part of it, is true. When you think about
whether the statement is true, you should consider how and when the statement was
made, as well as all the other evidence in the case.
(4) You may give the statement whatever importance you think it deserves.
You may decide that it was very important, or not very important at all. In deciding
this, you should once again think about how and when the statement was made, and
about all the other evidence in the case.
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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no evidence concerning the circumstances surrounding the taking of the
statement.6
On this record, defendant has failed to rebut the well-settled presumption that counsel’s
conduct was the product of sound trial strategy under the circumstances. Toma, supra.7
Moreover, we reject defendant’s contention that defense counsel was deficient in failing
to cross-examine Sergeant James Sanford regarding the inconsistencies between defendant’s
statement to the police and the events as described by the victims. Indeed, our independent
review of the record reveals that defense counsel vigorously cross-examined Sergeant Sanford at
length regarding the statement and the circumstances under which it was obtained. Defense
counsel also presented the testimony of Marilyn Gerwolls, Ph.D., who testified regarding
defendant’s inability to render a knowing and intelligent waiver of his Miranda rights.8 Further,
at the Ginther hearing, defense counsel indicated that he decided to focus on the fact that
defendant could not have competently waived his Miranda rights because of his low intelligence
rather than attack the factual content of the statement. It is well-settled that counsel’s decisions
regarding how to cross-examine witnesses is a matter of trial strategy. Ayres, supra at 23. We
will not second-guess such a strategic decision with the benefit of hindsight on appeal.
Additionally, defendant has not made a persuasive showing that trial counsel’s
performance was deficient because he did not hire an investigator to testify about the lighting at
the scene of the crime. During the Ginther hearing, trial counsel testified that he did not believe
that it would have been useful to hire an investigator because the crime took place at different
locations over a long span of time. Additionally, trial counsel cross-examined the witnesses
about the lighting conditions and their ability to make reliable observations and discussed this in
closing argument. Thus, we are not persuaded that trial counsel’s performance in this regard was
deficient.
Further, we reject defendant’s claim that trial counsel was deficient because he did not
take efforts to establish that witness Anthony Cheatom resembled the individual depicted in the
police composite sketch. At the Ginther hearing, defense counsel testified that he did not
attempt to connect Cheatom with the crime because there was no evidence to suggest that he was
6
The trial court went on to observe that trial counsel “performed admirably in the face of
overwhelming evidence against the defendant, including the eyewitness identifications and the
defendant’s admissions.”
7
In his brief on appeal, defendant notes that during the Ginther hearing, trial counsel stated that
his failure to request this instruction was not the product of trial strategy. Trial counsel’s
statement is not dispositive in our inquiry however, because “[t]he reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at the time of the alleged error and in
light of all the circumstances. . . .” People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995)
(Boyle J.) (emphasis supplied), quoting Kimmelman v Morrison, 477 US 365, 381; 106 S Ct
2574; 91 L Ed 2d 305 (1986).
8
Specifically, Gerwolls testified that although defendant would have trouble comprehending his
Miranda rights if he attempted to read them himself, if the Miranda rights were read aloud to
defendant, he would be able to comprehend and knowingly and intelligently waive those rights.
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involved and because the composite looked like defendant. Again, defendant has not established
that counsel’s performance was in any manner deficient.
Lastly, we disagree with defendant that trial counsel was remiss in failing to call to testify
at trial the lawyer who was present at the lineup where defendant was identified as the
perpetrator of these crimes. Defendant argues that the lawyer would have testified that one of
the victims also initially identified two other individuals as the perpetrators of these crimes.
According to defense counsel’s testimony at the Ginther hearing, he did not present the
challenged testimony because he concluded it would be cumulative. Counsel’s performance in
this regard was not objectively unreasonable, given that the victim expressly conceded during her
trial testimony that she identified another person in the lineup before identifying defendant.
Defendant next argues that he was denied a fair trial because the trial court failed to
instruct the jury pursuant to CJI2d 4.1. We disagree. In his brief on appeal, defendant concedes
that trial counsel did not request this instruction. Because this issue was not properly preserved
for our review, we review for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 774; 597 NW2d 130 (1999); People v Smith, 243 Mich App 657, 690;
625 NW2d 46 (2000). Jury instructions are reviewed in their entirety to determine whether
reversal is warranted. People v Perez-DeLeon, 224 Mich App 43, 53; 568 NW2d 324 (1997).
“The instructions must include all elements of the charged offense and must not exclude material
issues, defenses, and theories, if there is evidence to support them.” Id., quoting People v
Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1997). Even if somewhat imperfect, there is no
error if the instructions fairly presented the relevant issues and sufficiently protected defendant’s
rights. Id. After reviewing the jury instructions as a whole, we are satisfied that they fairly
presented the relevant issues and sufficiently protected defendant’s rights. Thus, the trial court
did not commit plain error affecting defendant’s substantial rights. People v McCrady, 244 Mich
App 27, 30; 624 NW2d 761 (2000).
Defendant next argues that the trial court erred in admitting defendant’s confession
because he did not knowingly and intelligently waive his Miranda rights. “Although engaging in
a de novo review of the entire record,” People v Cheatham, 453 Mich 1, 30; 551 NW2d 355
(1996) (Boyle, J.) we also afford great deference to the trial court, and will not disturb its factual
findings following an evidentiary hearing unless they are clearly erroneous. People v Snider,
239 Mich App 393, 417; 608 NW2d 502 (2000).
“Statements of an accused made during custodial interrogation are inadmissible unless
the accused voluntarily, knowingly, and intelligently waives his Fifth Amendment rights.”
People v Howard, 226 Mich App 528, 538; 575 NW2d 16 (1997), citing Miranda, supra. The
state bears the burden of proving by a preponderance of the evidence that there was a valid
waiver of the suspect’s Miranda rights. Cheatham, supra at 29-30.
To establish a valid waiver, the state must present evidence sufficient to
demonstrate that the accused understood that he did not have to speak, that he had
the right to the presence of counsel, and that the state could use what he said in a
later trial against him. [Id. at 29.]
Whether a suspect has voluntarily waived his Miranda rights depends on the factual
circumstances underlying each case. Id. at 27.
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The totality of the circumstances approach “permits – indeed, it mandates –
inquiry into all the circumstances surrounding the interrogation. This includes
evaluation of the [suspect’s] age, experience, education, background, and
intelligence, and into whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and the consequences of
waiving those rights.” [Id., quoting Fare v Michael C, 442 US 707, 725; 99 S Ct
2560; 61 L Ed 2d 197 (1979).]
A defendant’s mental ability is only one factor to be considered in the totality of
circumstances inquiry. Cheatham, supra at 43. Further, the fact that a defendant is “behind
others in his age group in his expressive language skills and development of both abstract verbal
reasoning” does not necessarily render a defendant incapable of knowingly waiving his Miranda
rights. See People v Abraham, 234 Mich App 640, 648-649; 599 NW2d 736 (1999).
Following an evidentiary hearing, the trial court concluded that defendant knowingly,
voluntarily, and intelligently waived his Miranda rights. We are not persuaded that the trial
court’s determination was clearly erroneous. Specifically, after hearing the testimony of both
defendant and Sergeant Sanford, the trial court found that defendant was adequately advised of
his Miranda rights and knowingly and intelligently waived those rights based on (1) defendant’s
written responses contained in the statement, (2) Dr. Gerwolls’ testimony that defendant would
be able to understand and knowingly waive his rights if they were explained to him aloud, and
(3) Sergeant Sanford’s testimony that he verbally explained the Miranda rights to defendant.
Considering the totality of the circumstances, and giving deference to the trial court’s credibility
determinations, Cheatham, supra at 30, we are satisfied that the trial court did not clearly err in
concluding that defendant knowingly and intelligently waived his Miranda rights.
Finally, defendant argues that his concurrent sentences of thirty to sixty years’
imprisonment violate the principle of proportionality. We disagree. This Court reviews
sentencing issues for an abuse of discretion. People v Cain, 238 Mich App 95, 130; 605 NW2d
28 (1999). A trial court’s imposition of sentence amounts to an abuse of discretion when it
violates the principle of proportionality. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990). The principle of proportionality requires that a sentence “be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.” Id. The Michigan
Supreme Court’s sentencing guidelines apply to offenses committed before January 1, 1999.
MCL 769.34(1); People v Reynolds, 240 Mich App 250, 254; 611 NW2d 316 (2000).
“To facilitate appellate review, the sentencing court must articulate on the record the
criteria considered and the reasons for the sentence imposed.” People v Pena, 224 Mich App
650, 661; 569 NW2d 871 (1997), modified 457 Mich 885 (1998). When sentencing on multiple
offenses for which concurrent sentences will be imposed, only guidelines calculations on the
highest offense need be prepared. See People v Hill, 221 Mich App 391, 396; 561 NW2d 862
(1997). The statutory maximum sentence for first-degree criminal sexual conduct, MCL
750.520b, is a term of life imprisonment. However, the sentencing information report (SIR)
reflects a minimum sentence guidelines’ range of 120 to 300 months (ten to twenty-five years’)
imprisonment.
The trial court sentenced defendant to concurrent terms of thirty to sixty years’
imprisonment, stating:
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And I do think that this is a heinous crime. I do think that you tortured these
women. It was not just rape. By making them strip and dress and strip and dress
several times, standing out in the cold in December and in an abandoned building,
is torture in my opinion. And although you have no criminal record, there is not
much else in your background that is redeeming.
The trial court also noted that defendant “is a danger to society and a predator.” Further,
the trial court specified that these were the reasons for exceeding the guidelines’ range. On
appeal, defendant maintains that the trial court deviated from the guidelines’ recommended range
on the basis of factors already accounted for in the guidelines. However, it is well-settled that a
trial court may depart from the guidelines range on the basis of factors already considered in the
guidelines calculation. People v Crear, 242 Mich App 158, 170; 618 NW2d 91 (2000); People v
Rockey, 237 Mich App 74, 79; 601 NW2d 887 (1999). In the instant case, the trial court
appropriately considered the special characteristics of these offenses in fashioning sentence.
People v Oliver, 242 Mich App 92, 98; 617 NW2d 721 (2000). The trial court also appropriately
considered the impact of defendant’s crime on the victims. People v Compagnari, 233 Mich
App 233, 236; 590 NW2d 302 (1998). The trial court deviated from the minimum sentence
range by only five years and adequately stated appropriate reasons for the deviation. Because the
sentences were proportionate to the circumstances surrounding the offense and the offender, we
are satisfied that the trial court did not abuse its discretion in imposing sentence.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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