PEOPLE OF MI V JEFFERY TODD ENO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2009
Plaintiff-Appellee,
V
No. 286216
Iosco Circuit Court
LC No. 08-004017-FH
JEFFERY TODD ENO,
Defendant-Appellant.
Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ.
PER CURIAM.
A jury convicted defendant, of operating a motor vehicle while under the influence of a
controlled substance, third offense, MCL 257.625(1) and (9)(c), and driving on a suspended
operator’s license, second offense, MCL 257.904(1) and (3)(b). The trial court sentenced
defendant to serve concurrent terms of imprisonment of 16 to 60 months for the operating under
the influence conviction, and one year for the operating without a license conviction. Defendant
appeals as of right. We affirm. This appeal has been decided without oral argument pursuant to
MCR 7.214(E).
The prosecutor presented evidence that early in the morning of December 1, 2007, police
officers observed defendant driving erratically, initiated a traffic stop, and detected signs of
alcohol intoxication. Defendant refused to cooperate with field sobriety tests, and so the police
obtained a warrant to have his blood drawn. The blood tested at an alcohol level of 0.25
percent.1
On appeal, defendant argues that the prosecuting attorney violated his due process rights
by withholding certain evidence until just before trial began, and alternatively that defense
counsel’s performance was deficient.
I. Due Process
1
0.25 percent is well over the statutorily proscribed “0.08 grams or more per 100 milliliters of
blood . . . .” MCL 257.625(1)(b).
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A citizen’s right to due process of law when facing adverse action at the hands of the
state is guaranteed under both the federal and state constitutions. US Const, Am XIV, § 1; Const
1963, art 1, § 17. Accordingly, the general rule is that, “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
Reversal is required where the “cumulative effect of all such evidence suppressed by the
government . . . raises a reasonable probability that its disclosure would have produced a
different result . . . .” Kyles v Whitley, 514 US 419, 421-422; 115 S Ct 1555; 131 L Ed 2d 490
(1995). “[T]he prosecutor remains responsible for gauging that effect regardless of any failure
by the police to bring favorable evidence to the prosecutor’s attention.” Id. at 421. Whether
requested by the defense or not, “favorable evidence is material, and constitutional error results
from its suppression by the government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.’”
Id. at 514-515, quoting United States v Bagley, 473 US 667, 682; 105 S Ct 3375; 87 L Ed 2d 481
(1985).
A defendant seeking appellate relief on grounds of a Brady violation bears the burden of
proving
(1) that the state possessed evidence favorable to the defendant, (2) that the
defendant did not possess the evidence and could not have obtained it with the
exercise of reasonable diligence, (3) that the prosecution suppressed the favorable
evidence, and (4) that had the evidence been disclosed to the defense, a
reasonable probability exists that the outcome of the proceedings would have
been different. [People v Fox (After Remand), 232 Mich App 541, 549; 591
NW2d 384 (1998).]
In this case, defendant argues not that certain evidence was entirely withheld, but that it
was not made available to the defense until just before or during trial. Defendant makes issue of
irregularities attendant to the warrant that resulted in the blood draw, and the disclosure that a
patrol car video of the confrontation between defendant and the police that the parties had
thought might exist in fact did not.
The arresting police officer described drafting the affidavit for the warrant, obtaining the
warrant from a magistrate, and taking defendant to a local hospital for the blood draw. Defense
counsel objected to admission of the faxed warrant on the ground that although the warrant in
one place listed its date as December 1, 2007, another part gave the date as November 18, 2007,
and argued that there was no indication that the document was actually faxed to anyone.
However, the arresting officer further testified that he did fax the affidavit for a warrant at
approximately 2:00 a.m. on December 1, 2007, although he had no explanation for the lack of
fax-machine tracers. The officer characterized the discrepancy in dates as a mere “clerical
error”. The trial court overruled the objection and admitted the warrant.
On cross-examination, the arresting officer agreed that the form he filled out in
conjunction with sending the blood sample to the laboratory indicated that the blood was not
drawn pursuant to a warrant.
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The magistrate under whose authority the warrant was issued testified that she recalled
authorizing the warrant for defendant’s blood from her home by fax at approximately 2:20 a.m.
on December 1, 2007, and added that her own fax machine was not set up to add any fax
indications to the document, but offered no explanation for the November 18 date. The
magistrate further testified that, when a search warrant is executed, the police normally tabulate
the items seized, but that the tabulation for the instant warrant was incomplete or blank.
Defendant asserts that the evidence concerning the incorrect date on the search warrant,
the incomplete or blank tabulation, and the medical form that indicated that there was no warrant
was all disclosed only at the eve of trial, points out that the nonexistence of a patrol car video
was disclosed only during the prosecution’s presentation of proofs, and argues that those items
and that information should have been disclosed sooner so the defense could have investigated
the errors or better used them to attack the credibility of prosecution witnesses. Defendant
characterizes the late disclosure as a due process violation requiring reversal. We disagree.
At trial, defense counsel requested no continuance and on appeal defendant does not
specify how earlier disclosure would have allowed the defense to put that evidence to any better
use. We further note that defense counsel effectively cross-examined prosecution witnesses over
the irregularities attendant to both the warrant and the nonexistent patrol car video. Defendant
thus fails to show that there is a reasonable probability the outcome of trial would have been
different had the information and items at issue been disclosed earlier. We therefore reject this
claim of error. Fox, supra.
II. Assistance of Counsel
Defendant alternatively casts his arguments concerning the warrant for the blood draw
under the rubric of ineffective assistance of counsel, arguing that counsel’s failure to demand
more timely discovery, or investigate avenues for challenging the adverse witnesses’ credibility
more aggressively, including by seeking a continuance for that purpose, constituted performance
so deficient as to fail to pass constitutional muster.2 We disagree.
“In reviewing a defendant’s claim of ineffective assistance of counsel, the reviewing
court is to determine (1) whether counsel’s performance was objectively unreasonable and (2)
whether the defendant was prejudiced by counsel’s defective performance.” People v Rockey,
237 Mich App 74, 76; 601 NW2d 887 (1999). Regarding the latter, the defendant must show
that the result of the proceeding was fundamentally unfair or unreliable, and that but for
counsel’s poor performance the result would have been different. People v Messenger, 221 Mich
App 171, 181; 561 NW2d 463 (1997).
Because defendant did not move for a new trial or a Ginther3 hearing below, our review
of a claim of ineffective assistance of counsel is limited to mistakes apparent on the record.
People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
2
See US Const, Am VI and XIV; Const 1963, art 1, § 20.
3
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Again, we note that defendant made good use of the irregularities attendant to the warrant
for the blood draw and the information that no patrol video was made, and note also that
defendant fails to state precisely how defense counsel might have made better use of those
opportunities had he been more aggressive about discovering them. Because we conclude above
that defendant failed to show a reasonable probability that the outcome of the trial would have
been different had the information and items at issue been disclosed earlier, we conclude here
that defendant fails to show any exertions on counsel’s part to obtain that discovery earlier, or
investigate further, would have brought about a different result. See Messenger, supra.
Defendant additionally asserts that trial counsel had stated at sentencing that, had he
received the documentation relating to the search warrant earlier, he would have sought to
suppress the evidence relating to that warrant in light of the irregularities. However, review of
the pages of the sentencing transcript cited in fact brings to light no talk of a lost suppression
opportunity. Instead, those pages present defense counsel boasting of having a strong issue for
appeal, and asking the trial court to put defendant on an appeal bond. Defendant does not assert
that counsel was ineffective for failing to seek suppression of any evidence, and offers no
argument or authority concerning what the merits of such a motion would have been. Given that
the arresting officer and the magistrate who issued the warrant testified consistently about how
the warrant was in fact issued, we deem it unlikely that any motion to suppress based on clerical
oversights would have succeeded. See People v Snider, 239 Mich App 393, 425; 608 NW2d 502
(2000) (“Trial counsel is not required to advocate a meritless position.”).
For these reasons, we conclude that defendant fails to show that he was convicted without
the benefit of effective assistance of counsel.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ E. Thomas Fitzgerald
/s/ Kurtis T. Wilder
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