PEOPLE OF MI V EDWARD CHARLES LESTER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 24, 2004
Plaintiff-Appellee,
v
No. 246601
Sanilac Circuit Court
LC No. 02-005508-CH
JANICE MARIE LESTER,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 247666
Sanilac Circuit Court
LC No. 02-005507-FH
EDWARD CHARLES LESTER,
Defendant-Appellant.
Before: Saad, P.J., and Talbot and Borrello, JJ.
PER CURIAM.
In these consolidated appeals, defendant Janice Marie Lester appeals as of right her jury
conviction of conspiracy to break and enter, MCL 750.110, and defendant Edward Charles
Lester appeals as of right his jury conviction of conspiracy to break and enter, MCL 750.110,
and breaking and entering, MCL 750.110. Janice Lester was sentenced to two years’ probation
and 90 days in jail, and Edward Lester was sentenced to two years’ probation and 180 days in
jail. We affirm.
Defendants first argue that their attorneys provided ineffective assistance of counsel
when they failed to call witnesses to prove defendant Edward Lester’s whereabouts at the time of
the crime. A defendant must request a new trial or an evidentiary hearing before the trial court to
preserve the issue of ineffective assistance of counsel. People v Marji, 180 Mich App 525, 533;
447 NW2d 835 (1989). Because defendants did not request a hearing pursuant to People v
Ginther, 390 Mich 436; 212 NW2d 922 (1973), this Court’s review is limited to errors apparent
on the record. People v Knapp, 244 Mich App 361, 385-386; 624 NW2d 227 (2001).
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To prevail on a claim of ineffective assistance of counsel, a defendant must show that his
attorney’s representation fell below an objective standard of reasonableness and that the
representation so prejudiced him that it deprived him of a fair trial. People v Pickens, 446 Mich
298, 338; 521 NW2d 797 (1994). Proving that counsel’s performance fell below an objective
standard of reasonableness requires a defendant to show that counsel’s performance was so
objectively unreasonable in light of existing professional standards that had counsel not erred,
the outcome would have been different. People v Price, 214 Mich App 538, 547; 543 NW2d 49
(1995). Defendant has the burden of overcoming the strong presumption that counsel’s decisions
were sound trial strategy. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
Counsel’s failure to call a witness is presumed to be trial strategy. People v Avant, 235
Mich App 499, 508; 597 NW2d 864 (1999). This Court does not attempt to second-guess trial
strategy. People v Stewart, 219 Mich App 38, 42; 555 NW2d 715 (1996). A counsel’s failure to
call a witness is only considered ineffective assistance if it deprived defendant of a substantial
defense. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). A substantial defense
is one that may have changed the outcome of the trial. Id.
Here, a witness testified that defendant Edward Lester was sleeping at the time the crime
was committed, and two witnesses testified that defendant Janice Lester was at home at the time
of the breaking and entering. Accordingly, defendants’ alibi defenses were before the jury and
they were not deprived of a substantial defense. Moreover, defendants’ mere assertions that their
attorneys’ omissions harmed them are insufficient to succeed on a claim of ineffective assistance
of counsel. Because defendants failed to make an offer of proof showing that additional
testimony would have led to a different result, the record does not establish that defense
counsels’ performance fell below an objective standard of reasonableness or that the
representation so prejudiced defendants that they were denied a fair trial. Pickens, supra at 338.
Defendant Janice Lester next argues that remand is necessary to establish the probable
perjured testimony of a prosecution witness. This issue is unpreserved, and defendant has failed
to establish plain error affecting a substantial right. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). Although the witness had given inconsistent statements at previous
proceedings, there was no evidence that the trial testimony was perjured. Moreover, there is no
evidence that the prosecutor allowed perjured testimony to stand uncorrected or that the
prosecutor withheld impeachment evidence. Compare People v Wiese, 425 Mich 448, 453-454;
389 NW2d 866 (1986). Rather, the prosecutor brought out the inconsistencies during the direct
examination.
Defendant Janice Lester next argues that the trial court erred by refusing to appoint
substitute counsel. She asserts that counsel was not acting in her best interest but was attempting
to scare her into taking a plea. We find no abuse of discretion. People v Traylor, 245 Mich App
460, 462; 628 NW2d 120 (2001); People v Murray, 234 Mich App 46, 52; 593 NW2d 690
(1999). Appointment of substitute counsel is warranted only on good cause shown and where
substitution of counsel will not unreasonably disrupt the judicial process. People v Jones, 168
Mich App 191, 194; 423 NW2d 614 (1988). Good cause exists where a legitimate difference of
opinion develops between a defendant and her appointed counsel with regard to a fundamental
trial tactic. People v Williams, 386 Mich 565; 194 NW2d 337 (1972). A mere allegation that
defendant has lost confidence in her attorney is not good cause to substitute counsel. Traylor,
supra at 463. Defendant’s allegation that defense counsel did not see things her way is also not
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good cause. People v Meyers (On Remand), 124 Mich App 148, 165-166; 335 NW2d 189
(1983). Here, the trial court found that defendant was agitated over advice defense counsel had
given her about accepting a plea bargain. But defense counsel’s candor regarding the merits of
the case is not grounds for substitution of counsel. People v Shuey, 63 Mich App 666, 672; 234
NW2d 754 (1975). Accordingly, this issue is without merit.
Defendant Edward Lester argues that because there is no evidence in the record that he
was advised of his Miranda1 rights, this case must be remanded for an evidentiary record. He
also contends that the prosecutor breached his constitutional right to remain silent by using his
refusal to answer questions regarding who had committed the breaking and entering against him.
Defendant failed to object to the prosecution’s questions during trial. Therefore, this issue is also
unpreserved. People v Grant, 445 Mich 535, 545-546; 520 NW2d 123 (1994), citing MRE 103.
The police must advise a suspect before custodial interrogation of his right to remain
silent. Miranda, supra at 465. It is unclear from the record whether defendant had been advised
of his Miranda rights before the questions were posed, but defendant testified that he was not in
custody at the time of the questioning. Therefore, reversal is unwarranted. In addition, defense
counsel was not ineffective for failing to object to this questioning because counsel is not
required to make meritless objections. People v Snider, 239 Mich App 393, 425; 608 NW2d 502
(2000).
Affirmed.
/s/ Henry William Saad
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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