PEOPLE OF MI V CARL BURNIE WELLBORN III
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 16, 2003
Plaintiff-Appellee,
v
No. 242229
Kent Circuit Court
LC No. 01-005099-FC
CARL BURNIE WELLBORN III,
Defendant-Appellant.
Before: Griffin, P.J., and Neff and Murray, JJ.
PER CURIAM.
Defendant was convicted by a jury of one count of first-degree criminal sexual conduct,
MCL 750.520b(1)(b), and two counts of second-degree CSC, MCL 750.520c(1)(a) and (b). He
was sentenced to ten to fifteen years’ imprisonment for the second-degree CSC convictions and
to ten to thirty years’ imprisonment for the first-degree CSC conviction. Defendant appeals as of
right. We affirm.
Defendant first argues that he was deprived of his constitutional right to the effective
assistance of counsel because trial counsel agreed with the prosecutor to exclude evidence of
defendant’s acquittal in a Montcalm County case involving similar charges brought by one of the
complainants in this case. Because defendant failed to move for a new trial or an evidentiary
hearing regarding his ineffective assistance claim, this Court’s review is limited to mistakes
apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). We
find no merit to defendant’s argument.
To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that, but for
counsel’s errors, there was a reasonable probability that the result of the proceeding would have
been different. Strickland v Washington, 466 US 668, 687-688, 694; 104 S Ct 2052; 80 L Ed 2d
674 (1984), on remand 737 F2d 894 (CA 11, 1984); People v Kevorkian, 248 Mich App 373,
411; 639 NW2d 291 (2001).
No ineffective assistance is apparent from the record. Trial counsel’s representation did
not fall below an objective standard of reasonableness because his concession on the
inadmissibility of the acquittal was consistent with the law. In People v Bolden, 98 Mich App
452; 296 NW2d 613 (1980), the defendant argued that the trial court erred in precluding the jury
from knowing that he was acquitted of the charges that comprised the prior similar acts evidence.
-1-
Relying on People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), the Bolden Court held that
the trial court did not err in excluding evidence of the acquittal, reasoning as follows:
We find this reasoning [that of Oliphant] equally applicable to our
consideration. The prosecutor must produce evidence sufficient to show that
defendant “probably committed the other acts”, People v Cook, 95 Mich App 645;
291 NW2d 152 (1980). If he or she can satisfy that burden, the jury should not be
confused by the additional information of an acquittal which could mislead them
into believing that the defendant absolutely did not commit the prior similar acts.
The fact that another jury harbored a reasonable doubt as to defendant’s guilt of
the other offense does not negate the substantive value of the testimony to
establish identity, scheme, plan, etc. in the case at bar. The issue should not be
clouded by encouraging speculation regarding the verdict reached in a separate
trial on a separate offense involving a different complainant. Defendant’s rights
were sufficiently protected by the trial court’s limiting instructions concerning the
purpose of similar acts testimony. [Bolden, supra at 461.]1
Moreover, while instructing the jury, the trial court said that it would not have admitted
evidence of defendant’s acquittal even if the parties had not agreed to exclude it because the
evidence was irrelevant. The trial court explained that there is no meaningful comparison
between the two trials because there are different juries, different prosecutors, and different
accusations.2 Because counsel is not required to advocate a meritless position, People v Snider,
239 Mich App 393, 425; 608 NW2d 502 (2000), trial counsel’s decision to forego mentioning
the acquittal did not amount to objectively unreasonable assistance, let alone unreasonable
assistance affecting the jury’s verdict. We find no merit to defendant’s ineffective assistance of
counsel claim.
Defendant next argues that he was denied his constitutional right to a jury drawn from a
venire representative of a fair cross section of the community because of a computer “glitch.”
Defendant has waived his challenges to the venire and the jury selection process because his
defense counsel expressed satisfaction with the jury’s composition. People v McKinney, 258
Mich App 157, 161-162; 670 NW2d 254.
1
Although a subsequent panel of this Court “expressed its support” for Judge Allen’s partial
dissent in Bolden on this issue, see People v Nabers, 103 Mich App 354, 364; 303 NW2d 205,
rev’d on other grounds, 411 Mich 1046 (1981), that statement was dicta since it does not appear
that either party raised as an issue in that case the admissibility of an acquittal. Furthermore, as
was noted in US v Gricco, 277 F3d 339, 352-353 (CA 3, 2002), at least ten of the federal circuits
(including the Sixth Circuit) have held that, except for purposes of determining whether the
prosecution of a defendant is barred by double jeopardy or collateral estoppel, “evidence of prior
acquittals is generally inadmissible.” Id. at 352. That is so because judgments of acquittal “may
not present a determination of innocence, but rather only a decision that the prosecution has not
met its burden of proof beyond a reasonable doubt.” Id.
2
The trial court instructed the jury in this manner because, during cross-examination, defendant
testified that the victim had previously “tried me and lost.”
-2-
Defendant also argues that the sentencing court erred in failing to credit him with fortyeight additional days served between the time he was convicted and the date of his sentencing.
Reviewing this preserved question of law de novo, People v Givans, 227 Mich App 113, 124;
575 NW2d 84 (1997), we disagree.
MCL 769.11b, the relevant provision regarding jail credit for time served, provides as
follows:
Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or
unable to furnish bond for the offense of which he is convicted, the trial court in
imposing sentence shall specifically grant credit against the sentence for such
time served in jail prior to sentencing.
On appeal, defendant contends that he is entitled to an additional forty-eight days of jail
time for the time he served from the date of his conviction, March 27, 2002, through the date of
his sentencing on May 13, 2002. But the sentencing court stated during sentencing that
defendant’s three concurrent sentences were to begin on March 27, 2002, “the day he was
remanded to custody on these matters,” rather than the date of defendant’s sentencing. The
judgment of sentence also indicates that the beginning sentence date was March 27, 2002, the
day that defendant was convicted, rather than May 13, 2002, the day that defendant was
sentenced. Because defendant’s sentences include the forty-eight days defendant served from
the date of his conviction to the date of his sentence, there is no need to give defendant additional
credit for those days. Accordingly, there is no merit to defendant’s argument.
Affirmed.
/s/ Richard Allen Griffin
/s/ Christopher M. Murray
-3-
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