PEOPLE v. SHEPARD, 115615 (Mich. 2002)

642 N.W.2d 327

No. 115615 (208).Supreme Court of Michigan.
April 22, 2002.

COA: 185242, Wayne CC: 94-009772

On order of the Court, the motion for reconsideration of the Court’s order of December 5, 2001 is considered and it is DENIED because it does not appear the order was entered erroneously.

Young, Jr., J., would grant reconsideration.

Corrigan, C.J. (dissenting):

I would grant the prosecution’s motion for reconsideration of this Court’s order reversing defendant’s conviction. People v Shepard, 465 Mich. 920 (2001). I find no basis under governing case law for the majority’s finding of ineffective assistance of counsel. Strickland v Washington, 466 U.S. 668, 687 (1984); People v Carbin, 463 Mich. 590, 599-600 (2001).

Defendant was convicted in a bench trial of unarmed robbery, MCL 750.530, and sentenced as a fourth habitual offender, MCL 769.12, to eight to twenty years’ imprisonment. The trial court denied a new trial following a Ginther[1] hearing on defendant’s ineffective assistance of counsel claims. The Court of Appeals affirmed.[2] This Court granted leave to appeal and reversed the conviction in a peremptory order.

To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance was constitutionally deficient and that it prejudiced the defense. Strickland at 687; Carbin at 600. Prejudice requires a showing of “a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.”Strickland at 694; Carbin at 600. Such a reasonable probability means “a probability sufficient to undermine confidence in the outcome.”Strickland at 694; Carbin at 600. A defendant carries the burden of demonstrating the factual predicate for his claim. Id.

I. Ineffective Assistance of Counsel
Two alleged errors underlie defendant’s claims of ineffective assistance: (1) counsel’s failure to consult defendant, and (2) counsel’s failure to seek to disqualify the trial judge.

A. Failure to Consult
Defendant asserts his trial counsel did not visit him until a few minutes before a pre-trial hearing. At the Ginther hearing, however, defendant’s trial counsel testified to the contrary. Defendant offered evidence that no jail passes reflected visits by counsel. A jail employee acknowledged, however, that an attorney could visit an inmate without records reflecting the visit. Moreover, letters from defendant in the record suggest counsel consulted defendant before trial.

B. Failure to Move to Disqualify the Trial Judge
Defendant asserts counsel should have moved to disqualify the trial judge because: (1) the judge reviewed the preliminary examination transcript in connection with a motion to quash; (2) the judge learned of prior convictions during the hearing on the motion to suppress; (3) the judge sua sponte ordered a competency and diminished capacity examination; and (4) defendant wrote threatening letters to the judge, moved pro per to disqualify her, and filed a grievance with the Judicial Tenure Commission.

My review reveals no evidence of actual bias or prejudice against defendant to overcome the “heavy presumption of judicial impartiality.”Cain v Dep’t of Corrections, 451 Mich. 470, 497; 548 N.W.2d 210 (1996). No basis exists in the record to conclude that the court impermissibly considered defendant’s prior convictions or the preliminary examination transcript in finding defendant guilty. Further, the rule against a trial court sitting as a trier of fact and reading a preliminary examination transcript is not violated where the transcript is reviewed before trial to decide a motion to quash. People v Dixson, 403 Mich. 106, 109; 267 N.W.2d 423 (1978).

Nor did the court exhibit bias when it sua sponte ordered competency and diminished capacity examinations. The defense had agreed to the examinations. Further, the court ordered the examinations after an outburst by defendant and after defendant’s mother had indicated her son was mentally ill. The court eventually found defendant competent. The court protected defendant’s constitutional rights by ensuring he was competent. See generally Riggins v Nevada, 504 U.S. 127, 139-140 (1992) (Kennedy, J., concurring).

Next, defendant’s own behavior did not disqualify the trial judge. As the trial court explained, “[t]he fact that the defendant called the judge names, and was contemptuous, is bias shown on the part of the defendant, not by the Court.” To disqualify a judge because a defendant threatens, harasses, or files grievances against the judge woul encourage defendants to behave in this manner.

In short, defendant has not demonstrated bias. Thus, counsel’s failure to seek disqualification was not constitutionally deficient.[3]

C. Failure to Call Witnesses and Present Evidence
Defendant alleges counsel’s performance was deficient in other respects: (1) failing to call as witnesses officers who had initially responded to the crime scene; (2) failing to call defendant’s mother as a witness, (3) failing to preserve a 911 tape; and (4) failing to challenge a prosecution witness’ competency to testify.

First, defendant asserts his counsel should have learned about and called as witnesses officers who initially visited the crime scene after a reported disturbance. The victims did not report the robbery to those officers. Counsel testified at the Ginther hearing that he knew about these officers and had requested documents from the police, but a record identifying the officers was not produced at trial. Appellate defense counsel conceded at the Ginther hearing that trial counsel could not have discovered the identity of the officers with reasonable diligence.

In any event, the victims’ failure to report the crime to the first set of officers is explained by evidence that the victims feared defendant. A member of the second group of officers to visit the scene testified that the elderly victim was fearful and had to be coaxed to report the crime. Police records reflect the victims feared defendant because he had threatened to kill them if they contacted police. In sum, trial counsel was not ineffective for failing to call as witnesses the officers who first responded.

Next, defendant asserts counsel should have called defendant’s mother as a witness. He asserts her testimony would have established that the first set of officers did not arrest defendant. Counsel’s decision not to call defendant’s mother was a legitimate strategic choice. Other evidence at trial established the facts to which defendant’s mother would have testified. Moreover, defendant’s mother did not observe the robbery.

Next, defendant asserts his attorney should have preserved a tape of his mother’s 911 call. Defendant offers nothing but speculation to establish that the tape would have been exculpatory.

Finally, defendant contends his attorney should have challenged Daniel Bush’s competency to testify. Bush was the key prosecution witness who observed defendant take money from Bush’s mother. While Bush has a history of mental difficulties, defendant has not presented evidence that Bush’s condition impaired his ability to perceive events during the incident or to testify at trial. Under MRE 601, a witness is competent “unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably.” A witness is thus presumed to be competent. People v Flowers, 222 Mich. App. 732, 737 (1997). The essence of the rule is capacity for truthfulness. See People v Breck, 230 Mich. App. 450, 458 (1998) (a mentally retarded witness’ confusion during questioning may reflect a less than normal mental capacity, but that does not equate with an inability to testify truthfully); McCormick on Evidence § 44 at p 60 (4th ed 1992) (insane persons are generally permitted to testify).

The record does not reflect evidence of an inability to testify truthfully. The trial court noted Bush’s deficits as a witness, including “perception” difficulties. Nonetheless, the court found Bush to be “very clear as it relates to the circumstances surrounding the taking of the monies from the person of Mrs. Annie Bush.” Bush consistently stated defendant removed money from Bush’s mother’s pocket.

In conclusion, the record does not support the majority’s finding of ineffective assistance of counsel. The trial court assessed the credibility of witnesses at the Ginther hearing. Appellate courts defer to a trial court’s ability to hear witnesses in person and observe their demeanor. The trial court discredited defendant’s version of events when it denied a new trial. The majority has not identified a basis to upset the trial court’s determination.

II. Propriety of Ordering a New Trial Before a Different Judge
I also dissent respectfully from the majority’s decision to grant a new trial before a different judge. As discussed, no evidence exists that the trial judge was biased. In truth, the record reflects the judge was extremely patient with a difficult defendant.

By granting a new trial before a different judge, the majority rewards defendant’s behavior and encourages other defendants to engage in similar conduct to create an appellate parachute. The fact that defendant sent threatening letters and filed complaints with the Judicial Tenure Commission does not warrant the relief that the majority grants.