PEOPLE OF MI V ORLANDO FLOWERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2008
Plaintiff-Appellant,
v
No. 279219
Wayne Circuit Court
LC No. 98-001357
ORLANDO FLOWERS,
Defendant-Appellee.
Before: Schuette, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
Defendant was convicted of first-degree felony murder, MCL 750.316(1)(b), two counts
of armed robbery, MCL 750.529, two counts of assault with intent to do great bodily harm less
than murder, MCL 750.84, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. He was sentenced to life imprisonment for the murder
conviction, 15 to 30 years’ imprisonment for each of the armed robbery convictions, six to ten
years’ imprisonment for each of the assault convictions, and two years’ imprisonment for the
felony-firearm conviction. This Court affirmed defendant’s convictions and sentences. People v
Flowers, unpublished opinion per curiam of the Court of Appeals, issued February 27, 2001
(Docket No. 218593). In addition, our Supreme Court denied defendant’s application for leave
to appeal. People v Flowers, 465 Mich 879; 635 NW2d 316 (2001). Defendant then sought
relief from judgment in the trial court under MCR 6.500. The prosecutor appeals by leave
granted from the trial court’s order granting defendant’s motion for relief from judgment. We
reverse.
The prosecutor argues that defendant cannot meet the requirements of MCR 6.508 and,
therefore, was not entitled to relief from judgment. Specifically, the prosecutor asserts that
defendant did not overcome the presumption that his trial and appellate counsel were effective
and, therefore, he cannot establish “good cause” for not raising his claims of ineffective
assistance of counsel in his direct appeal or “actual prejudice” resulting from it. We agree.
I. STANDARD OF REVIEW
We review a trial court’s ruling granting a motion for relief from judgment for an abuse
of discretion. People v Clark, 274 Mich App 248, 251; 732 NW2d 605 (2007). The findings of
fact supporting the trial court’s decision are reviewed for clear error. Id. Once a defendant has
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exhausted the appellate process, the only remaining manner in which to successfully challenge
his conviction is by satisfying the requirements of MCR 6.500. People v Watroba, 193 Mich
App 124, 126; 483 NW2d 441 (1992).
II. ANALYSIS
MCR 6.508(D)(3) bars a trial court from granting relief from judgment if the defendant is
alleging “‘grounds for relief, other than jurisdictional defects, which could have been raised on
appeal from the conviction and sentence or in prior motion.’” People v McSwain, 259 Mich App
654, 680; 676 NW2d 236 (2003), quoting MCR 6.508(D)(3). To have that “bar” removed, the
defendant must meet the burden of showing two factors: (1) “good cause for failure to raise such
grounds on appeal or in a prior motion[,]” and (2) “actual prejudice from the alleged irregularities
that support the claim for relief.” Id.
“Good cause” may be established by proving the ineffective assistance of trial and
appellate counsel. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995). For purposes of
challenging a conviction following a trial, the court rule defines “actual prejudice” as a situation
where “but for the alleged error, the defendant would have had a reasonably likely chance of
acquittal” or “the irregularity was so offensive to the maintenance of a sound judicial process
that the conviction should not be allowed to stand regardless of its effect on the outcome of the
case[.]” MCR 6.508(D)(3)(b)(i),(iii).
Defendant and codefendant Eric Woods arrived at the victims’ residence in defendant’s
vehicle. Defendant brought a gun with him. Codefendant Woods used that gun to hold the
residents at gunpoint, while defendant retrieved various items from the house. Codefendant
Woods fatally shot one of the residents and seriously injured another. An additional individual
was shot as well. Defendant made an incriminating statement to police while he was unaware
that an attorney retained by his father had contacted the police department regarding his status.
The trial court suppressed the statement, finding that defendant’s rights were violated when
police failed to inform him that the attorney had called.
At trial, Ricci Wafford, the surviving victim, testified that he heard codefendant Woods
ask defendant if he should kill Wafford, to which defendant replied, “I don’t give a . . . .” The
trial court admitted the statement, over defense counsel’s objection, for the non-hearsay purposes
of showing its effect on the listener. Defendant did not testify at trial.
In his motion for relief from judgment, defendant first argued that trial counsel was
ineffective for erroneously advising him that his suppressed statement could be used to impeach
him if he testified, and for not challenging the admission of his conversation with Woods as
being unfairly prejudicial. Defendant also alleged that appellate counsel was ineffective for not
raising trial counsel’s ineffectiveness with regard to these issues in defendant’s direct appeal.
The trial court granted defendant’s motion, finding both counsels ineffective.
Both defendant, and the trial court, relied on People v Gonyea, 421 Mich 462; 365 NW2d
136 (1984). The prosecutor argues on appeal that Gonyea is not applicable. We agree.
In Gonyea, the defendant was sentenced on a plea-based conviction and then “prodded
into accompanying two sheriff’s detectives to retrace his route on the night of the killing he was
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accused of having committed.” Id. at 465. When the defendant asked to have his counsel
present, he was incorrectly told that his counsel agreed to allow the detectives to question him.
Id. Our Supreme Court first pointed out that Const 1963, art 1, § 20 of the Michigan
Constitution and the Sixth Amendment are identical, as they relate to a defendant’s right to
counsel. Id. at 469.
The Court in Gonyea considered the applicability of Harris v New York, 401 US 222; 91
S Ct 643; 28 L Ed 2d 1 (1971), which stands for the proposition that statements taken in
violation of a defendant’s Fifth Amendment right to counsel may be used to impeach the
defendant even though they may not be used substantively. The Court held that while it would
apply Harris to cases involving Fifth Amendment rights, it would not apply it to Sixth
Amendment cases. Gonyea, supra at 475-476. After discussing and distinguishing Harris at
length, the Court held that “any inculpatory statements extracted from a defendant in violation of
Const 1963, art 1, § 20 right to counsel are inadmissible for both substantive and impeachment
purposes.” Id. at 480-481. We find that Gonyea is expressly limited to cases involving Sixth
Amendment violations.
The Sixth Amendment right to counsel attaches when “adversarial legal proceedings have
been initiated against a defendant by way of indictment, information, formal charge, preliminary
hearing, or arraignment.” People v Marsack, 231 Mich App 364, 376-377; 586 NW2d 234
(1998). The statement at issue here was made before defendant was brought before a court or
any formal charges were filed against him. Therefore, the correct basis for suppression of
defendant’s statement to police is a violation of his Fifth Amendment right to counsel and
against self-incrimination.
In People v Stacy, 193 Mich App 19; 484 NW2d 675 (1992), the defendant made a
statement to police after requesting counsel. Id. at 23. At trial, the prosecutor attempted to
impeach the defendant with that statement. Citing Gonyea, supra at 473-483, this Court
explained that the Michigan Supreme Court has not settled the issue of whether, under the
Michigan Constitution, a defendant may be impeached with a statement taken by police in
violation of the defendant’s Fifth Amendment rights. Stacy, supra at 24.
Gonyea was a plurality decision, with Justice Cavanagh concurring that the statement
was inadmissible for any purpose, but not clarifying if the result was based on Michigan or
federal law. Id. at 24. This Court explained that under Michigan law, “‘statements taken in
violation of a defendant’s right to counsel, if voluntary, may be used for impeachment purposes
although they could not have been used in the prosecutor’s case-in-chief.’” Id. at 25, quoting
People v Paintman, 139 Mich App 161, 169-170; 361 NW2d 755 (1984). This Court expressly
concluded that it would not diverge from the current state of the law and, therefore, the defendant
could be impeached with his statement. Id. at 25.
Effective assistance of counsel is presumed and, therefore, defendant carries a high
burden of successfully proving otherwise. People v Solmonson, 261 Mich App 657, 663; 683
NW2d 761 (2004). This Court will not substitute its own judgment for defense counsel’s trial
strategy and will not use the benefit of hindsight to determine counsel’s effectiveness. People v
Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). Appellate counsel is entitled to this
same form of deference. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
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In Stacy, supra at 24, this Court refused to apply the Gonyea ruling to statements
obtained in violation of a defendant’s Fifth Amendment rights. Furthermore, our Supreme Court
has not extended Gonyea to cases involving Fifth Amendment violations. Thus, defendant’s
statement that was taken in violation of his Fifth Amendment rights could have been used to
impeach him, and his trial counsel advised him accordingly. Therefore, defendant could not
overcome the presumption that trial counsel was effective, and he could not sufficiently establish
that appellate counsel was deficient for failing to raise trial counsel’s ineffectiveness with respect
to the Gonyea issue on appeal.
In his motion for relief from judgment, defendant also argued that trial counsel was
ineffective for not challenging the admission of the statements exchanged between defendant and
codefendant Woods as more prejudicial than probative. The trial court agreed with defendant,
finding that trial counsel should have moved for suppression of these statements and challenged
them beyond merely objecting to them as hearsay at trial. This Court has held that evidence is
unfairly prejudicial if it is marginally relevant and may be given undue weight by the jury.
People v Ackerman, 257 Mich App 434, 442; 669 NW2d 818 (2003).
Defendant’s convictions were based on the theory that he aided and abetted codefendant
Woods in the shootings. Defendant’s statement, “I don’t give a . . .,” in response to codefendant
Woods’s question about killing Wafford is clearly prejudicial. However, it is also highly
relevant to defendant’s intent and knowledge. It was important for the jury to hear evidence
regarding defendant’s role in the crimes and his knowledge of codefendant Woods’s intentions
and actions. Therefore, defendant’s response to codefendant Woods’s question was more than
“marginally relevant.” Additionally, his response is probative of the fact that, at the very least,
he knew codefendant Woods was holding Wafford at gunpoint and was fully aware that
codefendant Woods was contemplating killing Wafford.
Trial counsel objected to the statement’s admission on the basis that it was hearsay;
however, the court overruled the objection. Clearly, trial counsel knew the statement was
potentially damaging to defendant’s case. However, he also presumably was aware of the
statement’s probative value and, therefore, decided that any further challenges to its admission
may not be fruitful. To establish ineffective assistance of appellate counsel, defendant must
rebut the presumption that “appellate counsel’s decision regarding which claims to pursue was
sound appellate strategy.” Hurst, supra at 642. Appellate counsel challenged the admission of
this statement on appeal. While he did not specifically claim that the statement was unfairly
prejudicial, he too may have determined that trial counsel’s decision not to raise that issue was
sound trial strategy.
To sufficiently establish the “cause” prong of MCR 6.508(D)(3), a defendant must show
that counsel “‘made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.’” Reed, supra at 384, quoting Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). We find that defendant
has failed to meet this requirement.
Under MCR 6.508(D)(3), defendant must also establish “actual prejudice” in order to
obtain relief from judgment. Gonyea does not apply; therefore, defendant would not have a
“reasonably likely chance of acquittal” if trial counsel erroneously relied on that case when
advising defendant. In addition, an additional objection by trial counsel to the admission of
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defendant’s conversation with codefendant Woods, whether successful or not, would in no way
negate the significant evidence against defendant.
“MCR 6.508 protects unremedied manifest injustice, preserves professional
independence, conserves judicial resources, and enhances the finality of judgments.” Reed,
supra at 378-379. Furthermore, “[n]either the guarantee of a fair trial nor a direct appeal entitles
a defendant to as many attacks on a final conviction as ingenuity may devise.” Id. at 389-390.
Both “good cause” and “actual prejudice” are required for post-judgment relief under the court
rule. Therefore, it was improper for the trial court to grant defendant’s motion for relief from
judgment if he did not meet his burden of satisfying the requirements in MCR 6.508.
If trial counsel was sufficiently effective, then appellate counsel was not ineffective for
failing to raise the issue of trial counsel’s effectiveness on appeal. In addition, appellate counsel
was not ineffective for failing to pursue those claims that trial counsel allegedly overlooked.
Defendant did not overcome the presumption that his trial and appellate counsel were effective
and, therefore, the trial court erred in finding “good cause” for defendant’s failure to raise his
claims of ineffective assistance of counsel in his direct appeal and “actual prejudice” resulting
from it.
Reversed.
/s/ Bill Schuette
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
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