PEOPLE OF MI V MARNIE CLAIRE KERLEY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 29, 2009
Plaintiff-Appellee,
v
No. 286963
Wayne Circuit Court
LC No. 07-014189-FH
MARNIE CLAIRE KERLEY,
Defendant-Appellant.
Before: Meter, P.J., and Borrello and Shapiro, JJ.
PER CURIAM.
Defendant appeals as of right her conviction, following a bench trial, of failing to stop at
the scene of a personal injury accident, MCL 257.617a.1 She was sentenced to two years’ nonreporting probation. For the reasons set forth in this opinion, we affirm.
On March 3, 2007, the complainant, Monique Couch, was working as a Guardian
security guard at Cobo Hall in Detroit, Michigan. At approximately 5:00 or 5:30 p.m.,
immediately following a dog show, show participants were lined up in their vehicles on a ramp,
which led to the loading dock, to retrieve their dogs and other belongings. The complainant
testified that defendant drove her vehicle around a barricade and attempted to drive onto the
loading dock, bypassing other vehicles that had been waiting in line for approximately 45 to 60
minutes. In response, the complainant instructed defendant to stop her vehicle, turn around, and
proceed to the end of the line. According to the complainant, defendant replied, “No way. There
is no way I [am] going to the end of the line. You [are] crazy. Get out of my way.” The
complainant and defendant continued to argue, and after a “few minutes,” the complainant
stepped “a few steps” back from defendant’s vehicle. Defendant then told the complainant, “I
will hit you,” and accelerated her vehicle up the ramp to the loading dock, and struck the
complainant’s wrist and arm with her driver’s side mirror2. The impact from defendant’s vehicle
1
Defendant was charged with felonious assault, MCL 750.82, and failure to stop at the scene of
a personal injury accident, MCL 257.617a. However, defendant was acquitted of felonious
assault.
2
Defendant denied telling the complainant that she was going to hit her, and she also denied
seeing her vehicle strike the complainant.
-1-
caused the complainant to spin around. The complainant walked to the top of the ramp and
located defendant’s unoccupied vehicle. The complainant recorded defendant’s license plate
number and used her security radio to call her supervisor, Cliff Johnson.
Defendant’s versions of events are significantly different than those presented by the
complainant. Defendant testified that the complainant instructed her to turn around and proceed
to the end of the line. In response, defendant said, “Well, it would be dangerous to do that
because there [were] people and dogs in crates coming down [the ramp]. . . . I [am] right up
here. If I turn around, I [would] have to go [up] the ramp to do it safely.” The complainant
replied, “No. You have to go to the end of the line.” According to defendant, she refused to do
so, saying, “I will not do that. It [is not] safe.” Defendant and the complainant continued to
argue for approximately five or ten minutes, when defendant said, “Well, I [am] going to go up
to the top of the ramp into the loading dock. I [will] turn around and go back[.]” According to
defendant, as she proceeded up the ramp, the complainant reached into defendant’s vehicle and
“grabbed at [defendant] with her hand” and struck the left side of defendant’s face.3 Defendant
continued up the ramp, parked her vehicle on the loading dock, and ran into Cobo Hall to report
the incident to Johnson, the complainant’s supervisor. Defendant told Johnson that the
complainant struck her. Defendant also gave Johnson her name, phone number, and vehicle
information.
Following her conviction, defendant filed her claim of appeal on August 5, 2008. On
March 10, 2009, defendant filed a motion with this Court to remand based on her assertion that
she had been “denied the opportunity to cross-examine an endorsed prosecution witness that the
prosecutor failed to produce at trial” and to develop the record regarding her claim that she was
denied the effective assistance of counsel. On April 23, 2009, this Court granted defendant’s
motion to consider affidavits and denied defendant’s motion to remand. People v Marnie Claire
Kerley, unpublished order of the Court of Appeals, entered April 23, 2009 (Docket No. 286963).
On appeal, defendant argues that the trial court abused its discretion by excusing the
prosecutor from his obligation to produce an endorsed witness. “We review a trial court’s
determination of due diligence and the appropriateness of a ‘missing witness’ instruction for an
abuse of discretion.” People v Eccles, 260 Mich App 379, 389; 677 NW2d 76 (2004). “The
abuse of discretion standard acknowledges that there may be more than one principled outcome
in any given case. An abuse of discretion occurs when the trial court’s decision falls outside the
range of reasonable and principled outcomes.” People v Shahideh, 277 Mich App 111, 118; 743
NW2d 233 (2007), rev’d on other grounds 482 Mich 1156 (2008) (citations and quotations
omitted).
In Eccles, supra at 388-389, this Court discussed a prosecutor’s obligation to produce a
witness at trial as follows:
3
The complainant denied reaching inside defendant’s vehicle or striking defendant.
-2-
A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to
exercise due diligence to produce that witness at trial. A prosecutor who fails to
produce an endorsed witness may show that the witness could not be produced
despite the exercise of due diligence. If the trial court finds a lack of due
diligence, the jury should be instructed that it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case. [Citations
omitted; see also People v Cook, 266 Mich App 290, 292; 702 NW2d 613
(2005).]
In People v Briseno, 211 Mich App 11, 14; 535 NW2d 559 (1995), this Court defined
due diligence as a reasonable good-faith effort. An exercise of due diligence includes efforts that
are reasonable, not “everything possible.” People v Lawton, 196 Mich App 341, 347-348; 492
NW2d 810 (1992). “The inability of the prosecution to locate a witness listed on the
prosecution’s witness list after the exercise of due diligence constitutes good cause to strike the
witness from the list.” People v Canales, 243 Mich App 571, 577; 624 NW2d 439 (2000).
Defendant argues that the trial court abused its discretion for three reasons. First, the trial
court abused its discretion because, contrary to the trial court’s ruling, the prosecutor did not
exercise due diligence; second, because it would not have been an invasion of privacy to obtain
the endorsed witness, Cliff Johnson’s, date of birth and social security number from his former
employer; and, third, because the trial court should have considered the missing witness jury
instruction for the prosecutor’s failure to produce Johnson at trial.4
When made aware that Johnson would not be produced at trial, defense counsel objected,
prompting the trial court to conduct an inquiry regarding the reasons for Johnson failing to
appear. In response to the trial court’s inquiry, the prosecutor stated he had sent a subpoena to
Johnson’s last known workplace and that Johnson’s cellular and home phone numbers had been
disconnected. The trial court then ruled that the prosecutor had exercised due diligence.
Defense counsel then renewed his objection, suggesting that the prosecution could have
attempted to locate Johnson through the Michigan Secretary of State’s office. The trial court
responded that the Secretary of State’s office could not locate a person solely on the basis of
their name, without additional information, such as a social security number or date of birth,
which the prosecutor did not have. Moreover, to request this information from Johnson’s former
employer would have been an invasion of privacy.
In People v Bean, 457 Mich 677, 685-686; 580 NW2d 390 (1998), the witness gave
police officers his name, social security number, date of birth, and his grandmother’s name,
address and phone number. At this time, the witness was living with his grandmother. Police
officers also obtained the witness’s mother’s address and phone number. Id. Notwithstanding
this information, the prosecution failed to exercise a diligent, good-faith effort to produce a
material witness at trial. Bean, supra at 682-683. In Bean, supra at 689, the Michigan Supreme
Court concluded that the following conduct did not amount to due diligence:
4
In apparent reliance on the prosecutor’s endorsement of Johnson as its witness, defense counsel
stated that he did not subpoena Johnson.
-3-
The police phoned [the witness’s] grandmother, were told that her phone was
disconnected, and then ceased all efforts to contact her. At no time did the police
contact any Detroit or Washington agency that might have information regarding
the whereabouts in Washington of [the witness’s mother]. The police took no
steps to track down her Detroit-area home or other local sources of information
about her. The police simply returned several times to [the witness’s] boarded-up,
empty house, and to the houses across the street where they were told of the move
to Washington, D.C. - sources that had already proven themselves not to be
helpful.
Defendant’s case is different from Bean, supra at 677, however, because the police
officers in Bean, supra, had much more information or “specific leads” to investigate. See
People v Conner, 182 Mich App 674, 681; 452 NW2d 877 (1990) (the prosecutor is obligated to
pursue specific leads regarding a witness’s whereabouts). Due diligence is determined by the
facts and circumstances of each case. Bean, supra at 684-685. In this case, there was no reason
to believe at the time that Johnson’s statement was given to police that he would be difficult to
contact. Johnson had provided police with his contact information and was an employee of Cobo
Hall. However, since the incident, Johnson was no longer employed at Cobo Hall and his
contact numbers were no longer operable. As previously stated, “an exercise of due diligence
includes efforts that are reasonable, not ‘everything possible.’” Lawton, supra. We find given
the particular facts set forth in this matter that the prosecutor made reasonable efforts to locate
Johnson. Therefore, the trial court’s finding that the prosecutor exercised due diligence in
locating Johnson was not clearly erroneous. Briseno, supra at 14.
Defendant further argues that the trial court should have conducted a due diligence
hearing and should have instructed itself regarding the missing witness jury instruction. A
hearing to determine due diligence is no longer required. See Cook, supra at 295-296 (overruled
mandatory hearing requirement stated in People v Pearson, 404 Mich 698, 715; 273 NW2d 856
(1979)). However, the trial court addressed the parties’ respective arguments at trial before
ruling that the prosecutor had exercised due diligence. The missing witness jury instruction
“may be appropriate if a prosecutor fails to secure the presence at trial of a listed witness who
has not been properly excused.” People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003).
Here, we conclude that the witness was properly excused. Furthermore, in a bench trial, the trier
of fact is presumed to know the law and need not instruct himself in the same fashion as in a jury
trial. People v Cazal, 412 Mich 680, 691; 316 NW2d 705 (1982); People v Alexander, 234 Mich
App 665, 675; 599 NW2d 749 (1999). Moreover, the inference that the missing witness’s
testimony would have been adverse to the prosecution is not a mandatory inference. People v
Fields, 450 Mich 94, 105-106; 538 NW2d 356 (1995).
Defendant also argues that the trial court’s findings of fact were erroneous, and thus,
affected her right to a fair trial. “Findings on questions of fact are reviewed for clear error . . . .”
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). “‘A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been made.’” People v Mullen, 282 Mich App
14, 22; 762 NW2d 170 (2008), quoting People v Lanzo Constr Co, 272 Mich App 470, 473; 726
NW2d 746 (2006).
At the conclusion of defendant’s trial, the trial court made the following findings of fact:
-4-
Number one: That on March 3, 2007, at approximately 5:00 to 5:30 p.m.[,] []
defendant attempted to gain entrance onto the ramp of Cobo Hall to purportedly
retrieve her belongings at the dock of Cobo Hall, she having been in attendance at
a dog show at that facility.
Number two: At that same date and time[,] the [complainant], Monique Couch,
employed by Guardian Security Company, was acting as a security guard at Cobo
Hall and was in the process of controlling traffic to gain entrance to the ramp and
the retrieval of participants’ belongings from the dock at Cobo Hall and prevented
[] defendant from gaining access to the ramp.
Number three: That while [the complainant] was next to [] defendant’s vehicle on
the driver’s side, she indicated that [] defendant would have to go to the end of the
line because there were several vehicles that were lined up to get to the dock area
to retrieve their personal property and it was perceived by [the complainant], the
security guard, that [] defendant had jumped line bypassing barricades which the
security guard had put in place to prevent line jumping by the various participants.
Number four: That [] defendant was reluctant to go to the back of the line and
made a statement to [the complainant], [“]I will hit you.[”]
Number five: That [the complainant] backed up approximately two or three feet.
More towards the front of the vehicle but still more in line with the driver’s side
rear view mirror of the vehicle when [] defendant accelerated her car or pickup
truck which was a Trailblazer apparently and in the process struck the person of
[the complainant] resulting in her spinning or moving away from the pickup
truck.
Number six: That [the complainant,] subsequent to this incident reported the
incident to her supervisor who then attempted to locate [] defendant who was at
the docking area to retrieve her personal belongings and the dog or dogs which
she had shown at the dog show along with her friend Cynthia Darling.
Number seven: That [] defendant spoke with [the complainant’s] supervisor by
giving [] her telephone number but nothing more and had complained of the
[complainant] purportedly grabbing her or striking her while stopped at the
ramp’s entrance.
Defendant argues that the trial court erred by determining that Darling perceived redness
on defendant’s right cheek instead of her left cheek. However, as the prosecutor highlights in his
brief, Darling testified that defendant was red on the right side of her face, and pointed to the
right side of her own face, to further indicate which side she meant. When Darling was asked a
third time which side of defendant’s face was red, she replied, “I think it was this side [pointing
to the right side of her own face]. I [am] not sure.” Although the trial court determined that
defendant reported to Johnson that she had been struck by the complainant, the trial court found
defendant’s testimony “incredulous.” In fact, the trial court stated the following:
-5-
The testimony that defendant was grabbed at by [the complainant] is incredulous.
Especially in light of the fact that, even when [] Darling gave testimony, she
indicated that this redness that was perceived by her on [defendant] was on her
right cheek as opposed to her left which her left cheek would have been in close
proximity to the door of her car or pickup truck[,] and therefore[,] would have
been the side that would have been struck had [the complainant] attempted to
reach into the vehicle and then struck [] defendant’s face.
Where there are credibility questions “posed by diametrically opposed versions of the events in
question,” the trial court is given great deference. People v Lemmon, 456 Mich 625, 646-647;
576 NW2d 129 (1998). In light of the testimony, the trial court’s findings of fact were not
clearly erroneous. Jordan, supra at 667.
Lastly, defendant argues that she was denied the effective assistance of counsel. The
Court’s review of an ineffective assistance of counsel claim is “limited to errors apparent on the
record.” Jordan, supra at 667. “[T]he appellate record must contain sufficient detail to support
the defendant’s claim.” People v Sabin, 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
“Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“Findings on questions of fact are reviewed for clear error, while rulings on questions of
constitutional law are reviewed de novo.” Jordan, supra at 667. “A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Mullen, supra at 22, quoting Lanzo, supra at 473.
“To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient” and thus there is a reasonable probability that, but for
the deficient performance, the result of the trial would have been different. People v Riley, 468
Mich 135, 140; 659 NW2d 611 (2003). “[T]o demonstrate that counsel’s performance was
deficient, the defendant must show that it fell below an objective standard of reasonableness
under prevailing professional norms. In so doing, the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy.” Id. at 140 (citations
omitted). Counsel’s performance should not be assessed with the benefit of hindsight.
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Thus, the
Sixth Amendment guarantees a range of reasonably competent advice and a reliable result. It
does not guarantee infallible counsel.” People v Mitchell, 454 Mich 145, 170-171; 560 NW2d
600 (1997); see also LeBlanc, supra at 578. “Counsel is not ineffective for failing ‘to advocate a
meritless position.’” People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005). “In
general, the failure to call a witness can constitute ineffective assistance of counsel only when it
‘deprives the defendant of a substantial defense.’” People v Payne, 285 Mich App 181, 190; ___
NW2d ___ (2009), quoting People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990).
Defendant argues that Sue Hough would have testified that she encountered defendant
while she was upset and heard defendant say that the complainant had hit her in the face.
According to defendant, Hough would have also testified that it was unsafe for defendant to turn
around on the ramp. As the trial court noted in its findings of fact, defendant reported to Johnson
that the complainant struck her in the face. Darling also testified that she heard defendant tell
another security guard that the complainant had hit her in the face. However, the trial court
found defendant’s testimony that the complainant actually struck her in the face “incredulous.”
-6-
As a result, Hough’s testimony would not have provided defendant with a substantial defense,
and therefore, counsel’s decision not to call Hough as a witness did not render his assistance
ineffective. Moreover, even if counsel’s performance was deficient, it is not likely that, but for
that deficient performance, the result of the trial would have been different. Riley, supra at 140.
Hough’s testimony was cumulative of Darling’s testimony, and therefore, defendant suffered no
prejudice.
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.