PEOPLE OF MI V DANA JAMES SWANTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2004
Plaintiff-Appellee,
v
No. 244022
Alcona Circuit Court
LC No. 02-010909-FH
DANA JAMES SWANTON,
Defendant-Appellant.
Before: Zahra, P.J., Cavanagh and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right his jury conviction for second-degree home invasion, MCL
750.110a(3), for which he was sentenced to 300 days in the county jail. We affirm.
I. Denial of Ginther1 Hearing
A. Standard of Review
Defendant first argues the trial court erred by denying his motion for a Ginther hearing.
We review a trial court’s decision to hold an evidentiary hearing for an abuse of discretion.
People v Collins, 239 Mich App 125, 138-139; 607 NW2d 760 (1999); People v Jones, 236
Mich App 396, 404; 600 NW2d 652 (1999). An abuse of discretion “exists where an
unprejudiced person, considering the facts on which the trial court acted, would conclude that
there was no justification or excuse for the ruling made.” People v Ullah, 216 Mich App 669,
673; 550 NW2d 568 (1996).
B. Analysis
The trial court developed the lower court record at defendant’s motion for new trial, and
we are able to fully address defendant’s claims of ineffective assistance of counsel. To prevail
on a claim of ineffective assistance, a defendant is required to show that (1) his attorney’s
representation fell below an objective standard of reasonableness, and (2) that the representation
so prejudiced him that it deprived him of a fair trial, i.e., there is a reasonable probability that,
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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but for counsel’s errors, the result of the proceedings would have been different. People v Toma,
462 Mich 281, 302-303; 613 NW2d 694 (2000). Effective assistance of counsel is presumed and
the defendant bears a heavy burden of proving otherwise. People v Stanaway, 446 Mich 643,
694; 521 NW2d 557 (1994). Thus, defendant is required to overcome the strong presumption
that counsel’s actions constituted sound trial strategy. Toma, supra at 302.
On appeal, defendant specifically argues that he was denied effective assistance because
(1) defense counsel failed to interview defense witness Stacey Karash before trial, (2) failed to
establish through Karash that defendant’s car was driven away from the Redwood Inn by Louis
Sylvester at the time the crime occurred, (3) failed to establish that Karash saw defendant at the
Redwood Inn between 11:30 p.m. and 1:30 a.m., which is approximately the time that the crime
occurred, (4) refusing to use peremptory challenges or challenging for cause jurors Bouchard,
Rekowski and Miller, (5) refusing to request a mistrial base on juror misconduct in discussing
the case amongst themselves before being instructed by the court to do so, (6) failing to seek an
adjournment based on defense counsel’s illness, and, (7) failing to call a witness, Devon Ross, to
establish that he was set up by his two accomplices. Of these claims, (1), (3) and (6) are
unsupported or contrary to the lower court record and will not be further addressed.2
At trial, Karash testified that defendant arrived at the Redwood Inn between 11:00 p.m.
and 11:30 p.m. on the night in question. Approximately forty-five minutes after he arrived,
defendant asked Karash for change in quarters. Between 1:00 a.m. to 1:30 a.m., Karash locked
the outside doors to the Redwood Inn. After having locked the doors, she would have seen
defendant enter or exit the Redwood Inn after that time.
We conclude that trial counsel’s decision not to establish through Karash that defendant’s
car was driven away from the Redwood Inn by Sylvester was reasonable trial strategy. Evidence
was presented that defendant was in his car when leaving the Redwood Inn, but was not driving.
This testimony is consistent with Karash seeing defendant’s car driven away from the Redwood
Inn by Sylvester. However, rather than raise the question whether defendant was in his car being
driven by Sylvester, defense counsel elicited from Karash testimony that she believed defendant
was in his room between 11:30 p.m. and 1:30 a.m. This decision to establish that Karash
believed defendant was in his room between 11:30 p.m. and 1:30 a.m., rather than attempting to
establish that defendant was not in his car merely because he was not seen driving it, was
reasonable. Therefore, we conclude that defense counsel’s decision was sound trial strategy.
Defendant next argues that trial counsel failed to use his peremptory challenges to
remove three jurors, or alternatively, failed to challenge them for cause. An attorney’s decisions
relating to the selection of jurors generally involve matters of trial strategy, which this Court
normally declines to evaluate with the benefit of hindsight. People v Johnson, 245 Mich App
243, 259; 631 NW2d 1 (2001). Here, two of the jurors testified that they knew the prosecutor
2
The record reflects that trial counsel spoke with Karash before trial, defense counsel elicited
from Karash that she saw defendant at the Redwood Inn between 11:30 p.m. and 1:30 a.m., and
the trial court expressly found that defense counsel performed without any signs of suffering
from any type of illness.
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from social events, but each of these jurors expressly affirmed that they could be fair and
impartial. Defendant contends that the third juror “was angry at defendant for rebutting his
advances.” The record reflects that this juror initially did not recognize defendant, but during
trial, he approached the court to express a belief that his parents may have cleaned defendant’s
sister’s office, and that he may have seen defendant while a patient at defendant’s sister’s office.
While there is evidence that the juror may have before seen defendant, there is no evidence that
this juror was biased against defendant. Because there is no evidence of juror bias, trial
counsel’s actions were not unreasonable. Moreover, “[o]ur research has found no case in
Michigan where defense counsel’s failure to challenge a juror or jurors has been held to be
ineffective assistance of counsel. We cannot imagine a case where a court would so hold, and
we do not so hold in this case.” People v Robinson,154 Mich App 92, 95; 397 NW2d 229
(1986).
Defendant next argues defense counsel was ineffective in failing to move for a mistrial
based on juror misconduct. Specifically, this claim arises from an allegations that an
unidentified juror stated to another juror, “[w]ell, we’ll be sending this boy to jail.” This
statement was overheard by Bonnie Martin, a person taking notes on behalf of defendant’s
mother at trial. A juror’s violation of the court’s express instructions not to discuss the case is
not in itself a mandate for reversal. People v Rohrer, 174 Mich App 732, 739; 436 NW2d 743
(1989). Rather, the test is whether “the misconduct had prejudiced the defendant to the extent
that he was denied a fair trial.” Id.
Here, there is no indication in the lower court record that defense counsel was informed
of the juror’s alleged statement. Accordingly, defense counsel acted reasonably in not moving
for a mistrial. Therefore, the trial court properly denied a Ginther hearing on this matter.
Furthermore, the trial court indicated that Martin’s testimony was questionable given her bias
toward defendant. Here, defendant has not overcome the presumption that jurors follow the
court’s instructions. People v Graves, 458 Mich 476, 486; 561 NW2d 463 (1997).
Defendant next argues that defense counsel failed to call a witness to establish that he
was set up by his two accomplices. Defense counsel’s decision whether to call a particular
witness is considered trial strategy. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830
(1994). “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.” Id.
We conclude that defense counsel’s decision not to call Devon Ross was reasonable trial
strategy, which did not deprive defendant of a substantial defense. Defendant claims that Bonnie
Ladd, Jennifer Rackley’s mother, had solicited him to kill her husband and because he refused,
Ladd and Rackley set him up in the instant case. Defendant claims that Ross’ testimony
regarding Ladd’s threat against defendant would have made more credible his theory that he had
been set up. However, Ross’ proposed testimony regarding Ladd’s statement is collateral to the
commission of the instant offense. Considering that Ross’ testimony was collateral and that it
would only have been admissible for purposes of impeachment, we conclude that defense
counsel did not deprive defendant of a substantial defense by not calling Ross.
Defendant next argues that his trial counsel refused to allow him to testify in his own
behalf. The decision whether to “call the defendant to testify is a matter of trial strategy.”
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People v Alderete, 132 Mich App 351, 360; 347 NW2d 229 (1984). When a “defendant decides
not to testify or acquiesces in his attorney’s decision that he not testify, ‘the right will be deemed
waived.’” People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985), quoting State v
Albright, 96 Wis 2d 122, 135; 291 NW2d 487 (1980). The record is silent with respect to why
defendant did not testify. However, had defendant wanted to testify he could have spoken up at
any time or at the point where the judge asked, “Defense counsel and defendant, before I forget –
I’m preparing the instructions as the arguments are going along – do you want the instruction
that the defendant has not testified?” Defendant remained silent, and defense counsel assured the
court that they wanted that instruction. We therefore conclude that defendant acquiesced in his
attorney’s decision that defendant not testify, and the issue is waived.
Defendant next argues that trial counsel failed to communicate a final plea offer until
after it was withdrawn. Defense counsel’s failure to convey a plea bargain offer may constitute
ineffective assistance of counsel. People v Williams, 171 Mich App 234, 241; 429 NW2d 649
(1988). However, the defendant “has the burden of proving by a preponderance of the evidence
that a plea offer was made and that his counsel failed to communicate it to him.” Id. at 242. A
defendant must also prove by a preponderance of the evidence that he would have accepted the
plea. Id. This issue was not raised before the trial court. Moreover, defendant has failed to
support his claim. Defendant only provides an affidavit stating that he did not receive an offer.
After considering each of defendant’s arguments, we conclude that the trial court did not abuse
its discretion in denying defendant a Ginther hearing.
II. Other Issues
Defendant next argues the prosecutor’s introduction of evidence concerning defendant’s
marijuana use was so prejudicial that it denied him a fair trial. Defendant failed to object to the
witnesses’ testimony that defendant smoked marijuana on the night of the incident; therefore,
this issue was not preserved for appeal. People v Carines, 460 Mich 750, 762; 597 NW2d 130
(1999). An unpreserved error will only be considered to the extent that a defendant has shown
plain error affecting his substantial rights. Carines, supra at 763.
Defendant argues that the prosecutor, in disregard of MRE 404(b)(2), failed to notify
defendant that he intended to introduce evidence of defendant’s drug use. MRE 404(b)(2),
provides in relevant part:
The prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial and the
rationale . . . for admitting the evidence.
However, defendant was notified at the preliminary examination that the prosecution
intended to elicit testimony regarding defendant’s use of marijuana on the night in question.
Indeed, during the preliminary examination, defense counsel cross-examined Sylvester about
defendant smoking marijuana before the breaking and entering. Moreover, the evidence
concerning defendant’s use of marijuana before the breaking and entering was admissible
because the drug use could have affected his behavior during the events surrounding the crime
charged. People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996). In addition, because the
use of marijuana by defendant could have affected not only his actions and behavior but his
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memory, it was important for the jury to hear the complete the story to explain why defendant
may not remember the events of the night the same as Sylvester and Rackley. Also, the evidence
regarding defendant’s use of marijuana on the night in question was not unduly prejudicial
considering that substantial evidence was presented that defendant planned the offense.
Therefore, defendant has failed to show plain error affecting substantial rights.
Last, defendant argues that his sentence was excessively harsh and that the trial court
improperly scored offense variable 14. However, The record reflects that defendant has long
since served his sentence of 300 days in the county jail. Therefore, because this Court is unable
to provide a remedy for the alleged error, the issue is moot and need not be addressed. People v
Rutherford, 208 Mich App 198, 204; 526 NW2d 6209 (1994).
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Jessica R. Cooper
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