PEOPLE OF MI V KYU H YUN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 16, 2002
Plaintiff-Appellee,
v
No. 229571
Wayne Circuit Court
LC No. 99-005763
KYU H. YUN,
Defendant-Appellant.
Before: Murray, P.J., and Fitzgerald and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial conviction for possession with intent to
deliver marijuana, MCL 333.7401(2)(d)(iii). He was sentenced to two years’ probation. We
affirm.
Defendant was arrested during the execution of a search warrant at his home on May 11,
1999. On that date, the police entered the home and found defendant in a bedroom. Defendant
appeared to be sleeping in the bed. When the officer entered and identified himself, defendant
made a stretching motion and the police officer observed defendant holding a plastic baggie and
money underneath the cover. Defendant dropped the bag and money at the side of the bed.
After defendant was secured and turned over to other officers of the raid team, the officer
returned to the bedroom and retrieved the plastic baggie containing cocaine. In the same
bedroom, the officer also found a bag of bulk quantity marijuana and currency. The officer
opined that narcotics in that quantity were used for sale and intended for distribution.
When defendant was taken into custody he was advised of his constitutional rights and
made two statements to the police. Upon questioning, defendant admitted that he lived at the
residence and that the marijuana that was confiscated belonged to him. Thereafter, defendant
declined to answer any more questions. Defendant was charged with possession of less than
twenty-five grams of cocaine, MCL 333.7403(2)(a)(v), and possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii). Following a bench trial, defendant was convicted of
possession with intent to deliver marijuana. This appeal followed.
On appeal, defendant raises only the issue of ineffective assistance of counsel. Defendant
argues that he was denied the effective assistance of counsel based on three errors. During
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defendant’s Ginther1 hearing, the testimony of both trial counsel and defendant was offered,
providing us with a full record as to each of defendant’s claims of ineffective assistance of
counsel. See People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989), citing People v
Ginther, 390 Mich 436; 212 NW2d 922 (1973).
A trial court’s ruling on a motion for a new trial is reviewed for an abuse of discretion.
People v Torres, 452 Mich 43, 50; 549 NW2d 540 (1996). In order for this Court to reverse an
otherwise valid conviction due to the ineffective assistance of counsel, the defendant must
establish that his counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms, and that the representation so prejudiced the defendant that,
but for counsel’s error, the result of the proceedings would have been different. People v Noble,
238 Mich App 647, 662; 608 NW2d 123 (1999), citing People v Pickens, 446 Mich 298, 302303; 521 NW2d 797 (1994); People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” Id. Furthermore, the defendant must overcome a strong presumption that the
assistance of counsel was sound trial strategy, because this Court will not second-guess counsel
regarding matters of trial strategy, even if counsel was ultimately mistaken. People v Rice (On
Remand), 235 Mich App 429, 444-445; 597 NW2d 843 (1999). Nor will it assess counsel’s
competence with the benefit of hindsight. Id. at 445.
Defendant first claims that he was denied the effective assistance of counsel when his
trial counsel failed to challenge the search warrant. We disagree. In this case, defense counsel
had no basis on which to challenge the validity of the search warrant. Defendant alleged that he
was out of town during the time the drug activity supporting the search warrant occurred.
However, defendant provided counsel with no evidence to corroborate his position. “Defense
counsel is not required to make frivolous or meritless motions.” People v Darden, 230 Mich
App 597, 605; 585 NW2d 27 (1998). Thus, we find that trial counsel’s performance in failing to
file a motion to suppress the search warrant was not below an objective standard of
reasonableness under prevailing professional norms. Noble, supra. Accordingly, defendant was
not denied the effective assistance of counsel.
Defendant next argues that his counsel was ineffective in failing to challenge the alleged
custodial statements. However, again defendant provided trial counsel with no basis for
challenging the statements. Although defendant denied that he made the alleged statements to
police, trial counsel testified that defendant indicated that indeed he did make such incriminating
statements to police. Trial counsel further asserted that defendant “never denied the marijuana.”
Further, it was counsel’s trial strategy to focus on acquitting defendant of the cocaine charge.
The decisions regarding what evidence to present and whether to exclude evidence are presumed
to be matters of trial strategy, which this Court will not second-guess. People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999); Rice, supra; see also People v Armstrong, 100 Mich
App 423, 426; 298 NW2d 752 (1980). Therefore, the failure to challenge the admissibility or
credibility of defendant’s custodial statements did not deprive defendant of the effective
assistance of counsel.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Defendant last claims he was denied the effective assistance of counsel when his trial
counsel admitted guilt on the charge of possession with intent to deliver marijuana. We conclude
that trial counsel’s performance was not deficient, nor was defendant prejudiced by it. During
closing argument, defense counsel stated that the marijuana charge was problematic because of
defendant’s statements to the police, but requested the court “to consider a lesser included in the
possession on the marijuana.” Defense counsel does not render ineffective assistance of counsel
by admitting guilt of a lesser offense. People v Emerson (After Remand), 203 Mich App 345,
349; 512 NW2d 3 (1994); People v Krysztopaniec, 170 Mich App 588, 596; 429 NW2d 828
(1988). Rather, “it is only a complete concession of defendant’s guilt which constitutes
ineffective assistance of counsel.” Id. Further, we are not persuaded that, but for trial counsel’s
performance in this regard, the result of the trial would have been different. Noble, supra. The
police found a bag of marijuana in defendant’s bedroom and defendant admitted to the police
that the marijuana belonged to him. Therefore, defendant was not prejudiced by counsel’s
comments during closing argument and defendant was not deprived of the effective assistance of
counsel.
Affirmed.
/s/ Christopher M. Murray
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
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