PEOPLE OF MI V GERALD HARRIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 12, 2003
Plaintiff-Appellee,
v
No. 239354
Wayne Circuit Court
LC No. 01-003007
GERALD HARRIS,
Defendant-Appellant.
Before: Jansen, P.J., and Neff and Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of delivery of less than fifty
grams of cocaine, MCL 333.7401(2)(a)(iv). Defendant was sentenced, as a fourth habitual
offender, MCL 769.12, to two to thirty years’ imprisonment for each conviction. Defendant
appeals as of right. We affirm.
Defendant’s first issue on appeal is that he was denied his Sixth Amendment right to
counsel. We disagree.
Defendant failed to object to the trial court’s order to not communicate verbally with his
attorney during certain points of the trial. Thus, this issue is not properly preserved for appeal.
People v Stacy, 193 Mich App 19, 28; 484 NW2d 675 (1992). Questions of unpreserved
constitutional law are reviewed, by this Court, for plain error that affected defendant’s
substantial rights. People v Carines, 460 Mich 750, 761-764; 597 NW2d 130 (1999); People v
Snider, 239 Mich App 393, 420; 608 NW2d 502 (2000). This Court “should reverse only if the
defendant is actually innocent or the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Carines, supra at 774; People v Schutte, 240 Mich App 713,
720; 613 NW2d 370 (2000).
The Sixth Amendment directly guarantees the right to counsel in all criminal
prosecutions. People v Marsack, 231 Mich App 364, 372; 586 NW2d 234 (1998). The right to
counsel guaranteed by the Michigan Constitution is generally the same as that guaranteed by the
Sixth Amendment, and absent a compelling reason to afford greater protection under the
Michigan Constitution, the right to counsel provisions will be construed to afford the same
protections. Marsack, supra at 372. The Sixth Amendment right to counsel attaches only to
criminal prosecutions at the time judicial process is initiated and is invoked by a request for
counsel, and extends to every critical stage of the proceeding. People v Russell, 254 Mich App
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11, 18; 656 NW2d 817 (2002). A critical stage requiring counsel is one in which the defendant
is confronted by the procedural system or his expert adversary, when counsel’s absence might
derogate from the defendant’s right to a fair trial. See People v Barnett, 163 Mich App 331, 335;
414 NW2d 378 (1987).
The right to counsel does not require the state to provide the defendant with unlimited
access to the attorney during trial. People v Mitchell, 454 Mich 145, 152; 560 NW2d 600
(1997), citing Perry v Leeke, 488 US 272; 109 S Ct 594; 102 L Ed 2d 624 (1989). In People v
Landrum, 14 Mich App 237, 240; 165 NW2d 292 (1968), this Court held that the trial court did
not deprive the defendants of their constitutional right to the assistance of counsel by prohibiting
defense counsel from conferring with them, even in whispers, during the prosecutor's closing
argument to the jury. Similarly, in this case, the trial court did not prevent defendant from
verbally communicating with defense counsel throughout the entire trial, but rather, only when a
witness was testifying or the prosecutor was speaking. The trial court did state, however, that
defendant and his attorney could pass notes if they needed to communicate during these times.
Thus, defendant was not denied his Sixth Amendment right to counsel.
Defendant’s second issue on appeal is that he was denied the effective assistance of
counsel. We disagree.
To preserve the issue of ineffective assistance of counsel, a defendant must move for a
new trial or an evidentiary hearing before the trial court. People v Davis, 250 Mich App 357,
368; 649 NW2d 94 (2002). Because defendant failed to move for a new trial or request a
Ginther1 hearing below, this Court’s review of the issue is limited to mistakes apparent on the
record. Davis, supra at 368. If the record does not contain sufficient detail to support a
defendant's ineffective assistance of counsel claim, then he has effectively waived the issue. Id.
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). “Whether a person
has been denied effective assistance of counsel is a mixed question of fact and constitutional
law.” LeBlanc, supra at 579. The court must first find the facts and then decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel. Id. The trial court’s factual findings are reviewed for clear error, while its
constitutional determinations are reviewed de novo. Id.
Generally, to establish ineffective assistance of counsel, a defendant must show: (1) that
counsel's performance was below an objective standard of reasonableness under prevailing
professional norms; (2) that there is a reasonable probability that, but for counsel's error, the
result of the proceedings would have been different; and (3) that the resultant proceedings were
fundamentally unfair or unreliable. Bell v Cone, 535 US 685, 695; 122 S Ct 1843, 152 L Ed 2d
914, (2002); People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000); People v Rodgers, 248
Mich App 702, 714; 645 NW2d 294 (2001). The deficiency must be prejudicial to the
defendant. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). To demonstrate
prejudice, a “defendant must show that there is a reasonable probability that, but for counsel's
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland v
Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446
Mich 298, 314; 521 NW2d 797 (1994). Furthermore, the defendant must overcome the
presumption that the challenged action is sound trial strategy. Daniel, supra at 58.
At sentencing, defendant alleged that his trial counsel was ineffective by failing to call a
witness on his behalf, a seventy-plus year old woman. The decision whether to call witnesses is
a matter of trial strategy. Id. 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 Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001). In order to
overcome the presumption of sound trial strategy, the defendant must show that his counsel's
failure to call these witnesses deprived him of a substantial defense that would have affected the
outcome of the proceeding. Daniel, supra at 58. The record does not indicate who this
purported witness is or how this witness would have benefited defendant's case, and defendant
has not provided this Court with an affidavit indicating what the proposed testimony of the
witness would have been.2 In any event, defendant was not deprived of a substantial defense
because defense counsel cross-examined Officers Watkins, Rodriguez, Davis and Brown,
attempting to attack their credibility. Therefore, defendant has failed to overcome the
presumption that his counsel's decision not to call those witnesses was sound trial strategy.
Davis, supra at 369.
Defendant’s final issue on appeal is that the prosecutor’s argument, that certain evidence
was not contradicted, constituted plain error affecting defendant’s substantial rights. We
disagree.
Defendant failed to timely object to the prosecutor’s, alleged, improper conduct during
closing arguments. Thus, this issue is not properly preserved for appeal, and will be reviewed
for plain error that affected defendant’s substantial rights. Carines, supra at 761-764; Snider,
supra at 420; Stacy, supra at 28. This Court “should reverse only if the defendant is actually
innocent or the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Carines, supra at 774; Schutte, supra at 720. Prosecutorial misconduct issues are
decided on a case-by-case basis, and the reviewing court must examine the pertinent portion of
the record and evaluate a prosecutor’s remarks in context. People v Noble, 238 Mich App 647,
660; 608 NW2d 123 (1999). The propriety of a prosecutor’s remarks depends on all the facts of
the case. People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). Prosecutorial
comments must be read as a whole and evaluated in light of defense arguments and the
relationship they bear to the evidence admitted at trial. Schutte, supra at 721.
2
MCR 7.211(c)(1)(a)(ii) requires that a motion to remand must show “that development of a
factual record is required for appellate consideration of the issue. A motion under this subrule
must be supported by affidavit or offer of proof regarding the facts to be established at a
hearing.”
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Defendant argues that his constitutional rights to a fair trial and to not have his silence
used against him were violated when the prosecutor made a direct reference to and use of
defendant’s silence in closing argument. During closing argument, the prosecutor argued that
certain evidence was uncontradicted: (1) defendant bent down into the undercover officers’
vehicle and passed alleged illegal narcotics; (2) the material that defendant passed was cocaine;
(3) the weight of the cocaine was less than fifty grams; and (4) defendant received money for the
cocaine.
A prosecutor may not comment on a defendant’s failure to testify or present evidence, but
may argue that certain evidence is uncontradicted, even if defendant is the only one who could
have contradicted the evidence. People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995).
Here, defendant offered no evidence to contradict the testimony of the officers describing the
events of this case, and thus, the evidence was, in fact, uncontradicted. Even if the prosecutor’s
statements during closing argument constituted error, the error was timely cured by the trial
court’s instruction: “Every defendant has the absolute right not to testify. When you decide the
case, you must not consider the fact that he did not testify. It must not affect your verdict in any
way.” Additionally, defendant's argument that the prosecutor's statements shifted the burden of
proof is without merit. The prosecutor merely argued that the evidence proved defendant's guilt
beyond a reasonable doubt. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Moreover, the trial court instructed the jury that defendant is presumed innocent and that the
prosecutor has the burden to prove each element of the crime. Thus, reversal is not warranted
because the alleged error was not preserved and did not result in the conviction of an actually
innocent defendant, or seriously affect the fairness, integrity, or public reputation of judicial
proceedings independent of defendant's innocence. Schutte, supra at 720.
Affirmed.
/s/ Kathleen Jansen
/s/ Janet T. Neff
/s/ Kirsten Frank Kelly
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