PEOPLE OF MI V JEFF WILLIAM HURLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 14, 2011
Plaintiff-Appellee,
v
No. 298463
Wexford Circuit Court
LC No. 2009-009267-FH;
2010-009319-FH
JEFF WILLIAM HURLEY,
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Defendant appeals his jury trial convictions of resisting and obstructing a police officer,
MCL 750.81d(1), operating a motor vehicle while intoxicated (OWI), MCL 257.625(1),
possessing open intoxicants in a motor vehicle, MCL 257.624a, carrying a concealed weapon in
a motor vehicle, MCL 750.227, felon in possession of a firearm, MCL 750.224f, and felonyfirearm, MCL 750.227b. Defendant also challenges the sentence imposed by the trial court. For
the reasons set forth below, we affirm.
I. FACTS AND PROCEEDINGS
During the early morning hours of November 20, 2009, Joshua Baldwin sustained a gun
shot wound to his left leg after a night of drinking with friends. Evidence established that, earlier
in the evening, Baldwin, defendant, and other friends gathered at the home of Baldwin’s mother
to play cards and drink alcohol. Later, the group went to Wal-Mart in a white van where a
security camera showed Baldwin purchasing a box of .45-caliber ammunition at 12:24 a.m.
Thereafter, while drinking with friends at the home of Tamitha Simmons, defendant went outside
to the van and retrieved a .45-caliber pistol. Though testimony differed about whether the gun
was loaded at the time, evidence shows that defendant and Baldwin played with the gun,
pointing it at themselves and pulling the trigger.
The circumstances that led to Baldwin’s injuries are somewhat unclear. Residents who
lived near Simmons’ home testified that they heard four gun shots between approximately 2:50
a.m. and 3:05 a.m. Residents then saw a vehicle leaving the area. The next morning, Simmons
found a .45-caliber shell casing inside her front door. Just before 3:25 a.m., a white van similar
to the one defendant was driving that evening pulled up to a McDonald’s drive-thru. The driver
placed an order and paid for it, but drove off without picking up the food. Thereafter, defendant
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appeared at the home of Theresa O’Farrell and Justin Coutu. He pounded on the door and said
he needed a licensed driver to take someone to the hospital. Defendant said Baldwin had been
shot, but he assured Coutu that he did not have the gun in the van. Defendant also told O’Farrell
that he “got rid” of the gun.
Coutu drove defendant and Baldwin to Mercy Hospital in the white van. The van
stopped for two to four minutes near the hospital before pulling up to the entrance. Defendant
pulled Baldwin out of the vehicle and, with the help of a security guard, wheeled Baldwin into
the hospital at 3:48 a.m. Coutu returned home in the white van. At approximately 3:50 a.m., a
hospital surveillance video showed defendant running out of the hospital. The record reflects
that a bullet was lodged in Baldwin’s left leg and he lost a tremendous amount of blood.
Baldwin testified that hospital personnel had to bring him back to life twice that night and he
continues to suffer numerous physical problems because of damage caused by the gun shot.
However, Baldwin has no memory of how he was shot or where the shooting occurred.
After defendant left the hospital, he briefly returned to Coutu and O’Farrell’s house.
Both Coutu and O’Farrell testified that defendant said the shooting occurred at McDonald’s.
Cadillac police officers began to patrol the area for a white van after they received calls about the
gun shots in Simmons’ neighborhood and the victim who was dropped off at the hospital. Two
officers spotted defendant driving the white van and the officers activated their overhead lights.
After a couple of blocks, defendant pulled the van into a driveway and stopped partially on a
lawn. Defendant was not fully cooperative with the officers when he got out of the van. He did
not walk backwards toward the officers as instructed and, when asked, he failed to turn around
and failed to get down onto the ground. After he was handcuffed, defendant also attempted to
bring his hands from behind his back to his front by pulling his legs through his shackled arms.
Officers found large quantities of blood in the van as well as open containers of alcohol.
Defendant had slurred speech, red, watery eyes, coordination problems, and he smelled of
alcohol. Defendant refused to submit to breathalyzer tests, so officers obtained a search warrant
to test his blood alcohol content. At the hospital, defendant was combative, he spit at the
officers, he had to be held down for a photograph, and he had to be forcefully returned to the
police car. Laboratory test results showed that defendant’s blood alcohol content was .13.
Defendant testified that he was drinking that night with Baldwin and some other friends,
but he denied that he ever had a gun or that he ever saw Baldwin with a gun. He also denied
knowing that Baldwin bought ammunition at Wal-Mart. According to defendant, after he and
Baldwin left Simmons’ house, they went to the trailer home of another friend of Baldwin’s.
Defendant could not identify the address of the trailer or any of the people present. Defendant
testified that Baldwin stayed at the trailer while defendant drove an unnamed man and his
girlfriend to McDonald’s. Defendant recalled that, while they were at the drive-thru, the man
received a call on his cell phone that Baldwin had shot himself, so defendant left without picking
up the food and he returned to the trailer to take Baldwin to the hospital. Defendant maintained
that he asked Coutu to drive the van to the hospital because he had been drinking and did not
have a driver’s license.
As noted, following the close of proofs, the jury found defendant guilty of resisting and
obstructing a police officer, OWI, possessing open intoxicants in a motor vehicle, carrying a
concealed weapon in a motor vehicle, felon in possession of a firearm, and felony-firearm.
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II. ANALYSIS
A. ASSISTANCE OF COUNSEL
Defendant argues that he received ineffective assistance of counsel. Specifically,
defendant maintains that trial counsel should have stipulated to an unnamed prior felony
conviction for purposes of his felon in possession of a firearm charge instead of allowing the
prosecutor to submit a copy of defendant’s prior record of conviction. “Our review of this
unpreserved claim of ineffective assistance of counsel is limited to mistakes apparent on the
record.” People v Mesik (On Recon), 285 Mich App 535, 542; 775 NW2d 857 (2009). As the
Court in Mesik further explained:
In order to prevail on a claim of ineffective assistance of counsel,
defendant must show: (1) counsel’s performance fell below an objective standard
of reasonableness under prevailing professional norms; (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have
been different; and (3) the resultant proceedings were fundamentally unfair or
unreliable. People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).
Defendant must also overcome a strong presumption that counsel’s actions were
the product of sound trial strategy. People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001). [Id. at 542-543.]
We hold that defendant has failed to overcome the presumption that defense counsel’s
conduct amounted to sound trial strategy. After conferring with defendant, defense counsel did
not object to the submission of defendant’s record of conviction on a charge of obstruction of
justice. While defendant is correct that this is similar to the resisting and obstructing charge at
issue here, in light of defendant’s extensive criminal record and the gun charges in this case, it
was reasonable for counsel to disclose the nature of the predicate felony rather than allow the
jury to speculate about whether defendant’s prior conviction may have involved firearms or
violence. Moreover, defendant cannot show that, absent this decision, the result of the
proceedings would have been different. The reference to defendant’s prior conviction was brief
and ample evidence established that defendant had the firearm in his possession and that he
resisted and obstructed the police officers during his arrest.
Defendant also claims that trial counsel provided ineffective assistance when he failed to
object during the prosecutor’s cross-examination of defendant. Defendant maintains that,
although he had exercised his Miranda1 right to remain silent, the prosecutor asked defendant
why he failed to tell police officers the version of events he offered at trial. According to
defendant, counsel should have objected because this violated his due process rights.
Defendant is correct that, “when a defendant chooses to exercise his right to remain
silent, that silence may not be used against him at trial.” People v Avant, 235 Mich App 499,
509; 597 NW2d 864 (1999). Here, the prosecutor asked defendant, “Was there a reason you
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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never told this string of events to the police or anyone else?” Defendant responded by explaining
that, in his prior “dealings with police” they did not believe him and he does not like police
officers. Defendant’s surprisingly candid response aside, it appears that the prosecutor’s
question could have related to either the pre-Miranda and post-Miranda period of defendant’s
arrest, and was also clearly focused on statements defendant made to other witnesses that were
wholly inconsistent with his trial testimony. But, were we to find the prosecutor’s questioning
improper, defendant has again failed to show prejudice. As discussed, there was ample evidence
to establish defendant’s guilt of the charged offenses and the testimony of various witnesses, the
timeline established by the evidence, and the video images thoroughly disproved defendant’s
version of events. Accordingly, he cannot establish that, absent counsel’s failure to object, the
outcome of the trial would have been different.
B. SENTENCE
Defendant contends that the trial court erred in scoring two offense variables at
sentencing. “We review sentencing guidelines scoring decisions to determine whether the
sentencing court properly exercised its discretion and whether the evidence adequately supported
a particular score.” People v Wiggins, 289 Mich App 126, 128; 795 NW2d 232 (2010). “Any
statutory interpretation concerning the application of the sentencing guidelines presents a
question of law subject to review de novo on appeal.” Id.
The trial court scored 25 points for offense variable three (OV 3), physical injury to the
victim, which is permitted if a victim sustains life threatening or permanent incapacitating injury.
MCL 777.33. Here, Baldwin undeniably sustained life threatening injuries and evidence showed
that defendant produced, carried, and presented Baldwin with the gun that caused those injuries.
Baldwin testified that he did not own a gun, evidence showed that defendant retrieved the gun
that evening, he played with it along with Baldwin, he carried it in the white van, and he “got
rid” of the gun after Baldwin was shot. Moreover, though defendant was not charged with the
actual shooting of Baldwin, circumstantial evidence clearly permits the inference that defendant
may, indeed, have fired the weapon. In either case, because a victim, Baldwin, sustained a life
threatening injury, the trial court correctly scored OV 3.
Defendant also claims that the trial court erred in scoring 10 points for offense variable
19 (OV 19). MCL 777.49 provides:
Offense variable 19 is threat to the security of a penal institution or court
or interference with the administration of justice or the rendering of emergency
services. Score offense variable 19 by determining which of the following apply
and by assigning the number of points attributable to the one that has the highest
number of points:
***
(c) The offender otherwise interfered with or attempted to interfere with
the administration of justice.
Defendant argues that the conduct that relates to his interference with the administration of
justice occurred after the charged crimes were complete and that, therefore, that conduct cannot
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be used for purposes of scoring OV 19. As defendant acknowledges, the case of People v Smith,
488 Mich 193; 793 NW2d 666 (2010), was pending in our Supreme Court when defendant filed
his brief on appeal. In Smith, the Court specifically ruled that OV 19 “may be scored for conduct
that occurred after the sentencing offense was completed.” Id. at 195. Accordingly, defendant is
not entitled to resentencing on this basis. Moreover, we observe the ample evidence supports the
trial court’s score. Defendant disposed of the gun by throwing it after the shooting, he failed to
follow the directives given to him by the arresting officers, police had to further restrain
defendant after he was nearly able to get his hands in front of his body while handcuffed, he
fought and spit at police officers during his blood draw which required them to place a hood on
him, and he had to be forcibly removed from the hospital. Defendant’s claim is without merit.
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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