PEOPLE OF MI V TYE DONNAILE CHANDLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 22, 2011
Plaintiff-Appellee,
V
No. 295041
Wayne Circuit Court
LC No. 09-011970-02
TYE DONNAILE CHANDLER,
Defendant-Appellant.
Before: K. F. KELLY, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Defendant appeals by right his bench trial conviction for armed robbery, MCL 750.529.
Defendant was sentenced to 3 to 15 years’ imprisonment. We affirm.1
I. BASIC FACTS
The victim was near her home in Hamtramck at night, walking her dog and talking on her
cell phone, when three men approached her. One of the men pulled a gun on her while the other
two stood by silently. The victim later identified the defendant as one of the two men without
the gun. A fourth man was standing nearby but did not participate in the robbery. The victim
identified the fourth man as defendant’s codefendant. The gunman pointed the gun at the
victim’s chest and told her to give him her money. The victim did not have any money so the
gunman took her cell phone instead. After the victim gave the gunman the cell phone, the three
men immediately ran down the alley, away from her. The victim proceeded home, told her
mother what had happened, and called the police. Hamtramck Police officers later arrested
defendant and his codefendant after the victim picked them out of a lineup.
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This appeal has been decided without oral argument pursuant to MCR 7.214(E).
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Defendant was charged with armed robbery and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. During the final pretrial conference,
defendant attempted to accept a plea deal. In return for pleading guilty to armed robbery, the
prosecution agreed to move for dismissal of the felony-firearm charge. The trial judge asked
defendant if he wished to plead guilty to armed robbery and defendant responded affirmatively.
However, when the trial judge asked defendant for further explanation, defendant responded that
he “was just there.” The trial judge refused to accept the plea and set a date for trial. On the date
of the trial, defendant waived his right to a jury trial. The trial judge, the same judge that heard
plaintiff’s attempted guilty plea and admission that he was there, presided over defendant’s
bench trial and convicted him of armed robbery, but acquitted him of felony-firearm. After his
conviction, defendant moved for a new trial on the basis of ineffective assistance of counsel as
result of counsel’s advice to defendant to waive his right to a jury trial. The trial judge denied
defendant’s motion for a new trial.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel because defense
counsel advised defendant to waive his right to a jury trial, although defendant had previously
admitted to the trial judge that he was present at the scene of the incident. We disagree. “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). “This Court
reviews a trial court’s factual findings for clear error and reviews de novo questions of
constitutional law.” People v Dendel, 481 Mich 114, 124; 748 NW2d 859 (2008), amended 481
Mich 1201 (2008).
“To establish ineffective assistance of counsel, defendant must first show that (1) his trial
counsel’s performance fell below an objective standard of reasonableness under the prevailing
professional norms, and (2) there is a reasonable probability that, but for counsel’s error, the result of
the proceedings would have been different.” People v Uphaus, 278 Mich App 174, 185; 748 NW2d
899 (2008). We will not substitute our judgment for the judgment of counsel regarding matters
of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
As noted, the thrust of defendant’s argument is that counsel should have prevented him
from waiving his right to a jury trial because he made an allegedly incriminating statement to the
trial judge at a prior hearing. We disagree with defendant’s contention that his statement
amounted to a confession or was otherwise inculpatory. Defendant merely admitted he was
present when the crime occurred. He did not indicate that he was involved in the crime, or that
he otherwise assisted in the crime, in any way. Thus, the knowledge that the trial court
possessed cannot be said to have necessarily tainted the trial court’s ultimate decision and
deprived defendant of a fair trial. In fact, defendant’s statement to the trial judge that he was
“just there” during the robbery was consistent with defense counsel’s emphasis during cross
examination of the victim and closing argument that defendant was merely present while the
robbery occurred.
Even if the statement could be interpreted as incriminating or conflicting with defense
counsel’s strategy, a trial judge sitting in a bench trial is “presumed not to be prejudiced and to
follow the law.” People v Oliver, 170 Mich App 38, 49; 427 NW2d 898 (1988). Under these
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circumstances, counsel had no reason to prevent defendant from waiving his right to a jury trial
because the failure to do so would not have deprived defendant of a fair trial. Moreover, we also
note that nothing in the record suggests that defendant’s decision to waive his right to a jury trial
was uninformed or involuntary, or that counsel’s assistance in that regard was deficient. Rather,
the record suggests that counsel advised defendant regarding the difference between a jury trial
and a bench trial, and that defendant voluntarily chose to waive his right.
We also reject defendant’s related claim that counsel provided ineffective assistance
because she changed the defense theory from misidentification in the opening statement to mere
presence during closing argument. Defendant mischaracterizes the record. Defense counsel
argued both misidentification and mere presence throughout the trial. During the closing
argument, defense counsel emphasized mere presence as a result of the strength of the victim’s
identification testimony. “[A] decision concerning what evidence to highlight during closing
argument” is a matter of trial strategy, however, and “[w]e will not second-guess counsel on
matters of trial strategy.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).
Accordingly, we cannot conclude that counsel’s performance was deficient. As a result,
defendant’s claim of ineffective assistance of counsel fails.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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