People of Michigan v. Eric Rural Hanna ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 19, 2015
Plaintiff-Appellee,
v No. 320268
Chippewa Circuit Court
ERIC RURAL HANNA, LC No. 13-001140-FC
Defendant-Appellant.
Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions in the Chippewa Circuit Court of
five counts of assault with a dangerous weapon (felonious assault), MCL 750.82, three counts of
assault with intent to commit great bodily harm less than murder (“AGBH”), MCL 750.84, and
one count of first-degree criminal sexual conduct (“CSC I”), MCL 750.520b (multiple variables).
The trial court sentenced defendant as a third habitual offender, MCL 769.11, to 25 to 96
months’ imprisonment for the assault with a dangerous weapon convictions, 34 to 240 months’
imprisonment for the AGBH convictions, and 200 to 720 months’ imprisonment for the CSC I
conviction, with all sentences to run concurrently. We affirm.
I. FACTUAL BACKGROUND
This case arises from numerous instances of domestic abuse perpetrated by defendant
against his wife. Defendant and the victim met in 2002 and lived together following their
marriage in April 2010. The victim testified that defendant was verbally and physically abusive
both before and during their marriage. At trial, the victim described numerous instances of abuse
in addition to those giving rise to defendant’s convictions. Other witnesses corroborated many
of the instances of abuse described by the victim.
In July 2006, following a verbal altercation regarding the manner in which defendant
disciplined the victim’s grandson, defendant “chopped [the victim’s] finger off” by slamming a
door shut while he was aware that the victim had placed her hand on the doorframe. Defendant
then opened the door and handed the disconnected finger to the victim. The victim’s friend was
present when this incident occurred and drove the victim to the hospital.
In August 2010, the victim picked up defendant from a bar at approximately 1:00 a.m.,
explaining to defendant that she would not let him drive because he was drunk and did not have a
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driver’s license. When they arrived home, defendant “grabbed [the victim] by the throat and hit
[her] like [she] was a man. And he smashed all [of her] face and he pushed [her] aside and he
took off.” The victim testified that she asked defendant why he did that to her the following
morning while he was in the bathroom. In response, defendant “peed up and down [her] leg like
a garden hose.”
During the next episode of abuse, defendant threw a glass coaster at the victim’s head,
“slic[ing] the top of [her] head open” so that blood gushed out. The victim went to the home of
defendant’s friend for help, and defendant arrived at the friend’s house, “dragged [the victim] out
of there[,] and . . . brought [her] home.”
The next incident occurred when defendant returned home and found the victim
babysitting a young child. The victim and defendant started arguing because defendant was
upset that the victim had not asked him if she could babysit the child. Defendant ultimately
smashed a bottle of raspberry vodka on the side of the victim’s head. Red vodka spilled on the
carpet, and blood poured out of the victim’s head. The victim called the child’s mother, who
picked up her son and the victim and drove them back to her own apartment. The victim stayed
at the mother’s apartment that night, and the mother tended to the victim’s injury.
In September 2011, defendant was upset because he was not going on a camping trip with
the victim and members of the victim’s family. After threatening to kill the victim and cut her
body into “bits and pieces,” defendant threw a can of beer at her. The beer missed the victim and
shattered a picture, causing glass to fall on her. The victim exited the house and drove away with
her daughter and grandchildren.
In November 2011, defendant kicked the victim in the stomach, and she fell into a pole.
In January 2012, defendant pushed the victim, threatened to kill her, and elbowed her in the eye
because she used too much water as she washed the dishes.
In the summer of 2012, tension arose between the victim and defendant. After a series of
events, the victim returned to their trailer at a campground. Defendant arrived at the trailer and
began to pack up some of their supplies, intending to leave the victim at the trailer while he
returned home. When the victim pleaded with defendant to leave some of the camping supplies
at the trailer, defendant suddenly “grabbed a knife and . . . slammed [her] on [her]
granddaughter’s bed,” holding the knife to the victim’s neck and repeatedly telling her “to shut
up, shut up, shut up.” After defendant let the victim go, she told him that she hoped that he
would never do that again. Defendant then grabbed the knife and held it to her neck a second
time, again telling her to “shut up.” Defendant then called a taxi and left with the supplies.
A week or two later, the victim was camping with her granddaughters at the trailer. At
approximately 3:00 a.m., defendant cut a screen in order to unlock the trailer door. Once inside,
defendant “pushed [the victim] up against the trailer” and tried to burn her face with his
cigarette. When one of her granddaughters “yell[ed,] [‘G]randpa, not her face, don’t hurt
grandma’s face[,’ ]” defendant grabbed the victim, threw her on the bed, and exited the trailer.
In January 2013, defendant grabbed the victim’s face and neck, leaving her “esophagus . .
. so swollen that [she] whispered for four days afterwards.” During this incident, defendant also
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knocked a filling out of the victim’s mouth. Later, defendant used his body to push the victim
into the sink during a dispute over money, threatening to kill her. Defendant also threw a metal
object from a sewing machine at the victim, which cut her hand and damaged a bone.
In February 2013, during a dispute regarding the volume of the stereo, the victim grabbed
a wire out of a speaker. Defendant took the wire and wrapped it around the victim’s neck. He
then picked up a small hammer, and it appeared that he was going to hit the victim’s head with it.
At trial, the victim testified that she was choking and “truly, truly believed that this was the time
that he was going to definitely kill [her].” The victim said to defendant, “[D]o it, just do it. I
don’t care. I would rather be dead than be married to you. I can’t take it no more.” Defendant
then threw the hammer on the couch, told the victim that she was not worth it, and pulled the
cord off her neck.
In April 2013, defendant and the victim got into a heated discussion related to
defendant’s former job. Defendant dived at the victim, grabbed her hair, and threw her into a
wall. Two days later, while the victim was in a separate apartment inside of their home,
defendant knocked on her door and stated that he had a letter for her. When the victim opened
the door slightly, defendant pushed the door completely open. As the victim began to run away
from defendant, he chased her. Defendant then grabbed her from behind, and the victim pushed
the letter underneath her pajamas, yelling, “[D]on’t[,] Eric, don’t do this.” Next, defendant put
his hands down the victim’s pajama pants and “started digging at the inside of [her] leg.” The
victim then grabbed the phone that was on a desk nearby and dialed 911. Defendant then “dug
[into] [her] clitoris.” At trial, when the victim was asked why she called the police during the
last incident when she had never done so previously, she replied, “Because I was tired of being
hurt. I was tired. I wanted to live and I knew that if I didn’t stop him sooner or later I wasn’t
gonna live.”
II. INADMISSIBLE TESTIMONY
On appeal, defendant first argues that he is entitled to a new trial because the trial court
allowed a police detective to provide inadmissible testimony, and because defense counsel
provided ineffective assistance when she failed to object to that testimony. We will address each
argument in turn.
A. STANDARDS OF REVIEW
Defendant’s arguments regarding the detective’s testimony are unpreserved because
defendant failed to object to each of the evidentiary errors asserted on appeal. People v Aldrich,
246 Mich. App. 101, 113; 631 NW2d 67 (2001) (“To preserve an evidentiary issue for review, a
party opposing the admission of evidence must object at trial and specify the same ground for
objection that it asserts on appeal.”), citing MRE 103(a)(1). We review unpreserved issues for
plain error affecting substantial rights. People v Carines, 460 Mich. 750, 764; 597 NW2d 130
(1999). To demonstrate such an error, the defendant must show that (1) an error occurred, (2)
the error was clear or obvious, and (3) “the plain error affected [the defendant’s] substantial
rights,” which “generally requires a showing of prejudice, i.e., that the error affected the outcome
of the lower court proceedings.” Id. at 763. Even if a defendant establishes a plain error that
affected his substantial rights, “[r]eversal is warranted only when the plain, forfeited error
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resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed]
the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. at 763-764 (quotation marks and citation omitted; second alteration in original).
Our review of defendant’s ineffective assistance of counsel claims is limited to mistakes
apparent on the record because he did not move for a new trial or Ginther1 hearing. People v
Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of
counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” Id., citing People v LeBlanc, 465 Mich. 575, 579; 640
NW2d 246 (2002).
In order to prove that counsel provided ineffective assistance, a defendant must
demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of
reasonableness,’ ” and (2) the defendant was prejudiced, i.e., “that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v Vaughn, 491 Mich. 642, 669-671; 821 NW2d 288 (2012) (quoting
Strickland v Washington, 466 U.S. 668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984)). “A
defendant must also show that the result that did occur was fundamentally unfair or unreliable.”
People v Lockett, 295 Mich. App. 165, 187; 814 NW2d 295 (2012). “Effective assistance of
counsel is presumed,” and a defendant bears a heavy burden of proving otherwise. Petri, 279
Mich. App. at 410. Likewise, a defendant “must overcome a strong presumption that counsel’s
performance constituted sound trial strategy.” Id. at 411.
B. TESTIMONY REGARDING THE VICTIM’S PRIOR CONSISTENT STATEMENTS
First, defendant argues that the detective impermissibly testified that the victim made
prior consistent statements. We disagree.
MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by the person as an assertion.” MRE 801(a). Hearsay is not admissible, except
as provided by the rules of evidence. MRE 802.
With regard to prior consistent statements, MRE 801(d) provides, in relevant part:
(d) Statements which are not hearsay. A statement is not hearsay if–
(1) Prior statement of witness. The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is . . . (B) consistent with the declarant’s testimony and is offered to
1
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive . . . .
In People v Jones, 240 Mich. App. 704, 706-707; 613 NW2d 411 (2000), this Court held that the
party offering a prior consistent statement must establish four elements:
(1) the declarant must testify at trial and be subject to cross-examination; (2) there
must be an express or implied charge of recent fabrication or improper influence
or motive of the declarant’s testimony; (3) the proponent must offer a prior
consistent statement that is consistent with the declarant’s challenged in-court
testimony; and, (4) the prior consistent statement must be made prior to the time
that the supposed motive to falsify arose. [Quotation marks and citation omitted.]
On appeal, defendant only contests the second element, claiming that the detective’s
testimony about the victim’s prior consistent statements was not admissible under MRE
801(d)(1)(B) because “the allegation was that [the victim] had made the allegations up from the
beginning,” not recently. Defendant provides no citation to the record confirming that the charge
was, in fact, that the victim had fabricated her statements from the start. A “[d]efendant may not
leave it to this Court to search for a factual basis to sustain or reject his position.” People v
Traylor, 245 Mich. App. 460, 464; 628 NW2d 120 (2001) (quotation marks and citation omitted).
Instead, our review of the record reveals that defense counsel explicitly questioned both the
victim and two police officers regarding the fact that the victim did not initially disclose the
sexual abuse to the police after the incident, which raised, by implication, a charge of recent
fabrication. Thus, we reject defendant’s claim of error under MRE 801(d)(1)(B).
C. TESTIMONY REGARDING VICTIMS OF SEXUAL ASSAULT
Second, defendant argues that the detective impermissibly testified that, in his
experience, it was rare for victims to immediately disclose the details of a sexual assault to a
police officer. We disagree.
“It is generally improper for a witness to comment or provide an opinion on the
credibility of another witness, because credibility matters are to be determined by the jury.”
People v Dobek, 274 Mich. App. 58, 71; 732 NW2d 546 (2007); see also People v Buckey, 424
Mich. 1, 17; 378 NW2d 432 (1985). Consistent with this rule, it is not permissible for experts to
vouch for the veracity of a victim. Dobek, 274 Mich. App. at 71. However, an individual’s
comments regarding a witness’s “responses and demeanor” do not constitute “an expression of
personal belief in the witness’s credibility.” People v Stout, 116 Mich. App. 726, 730; 323 NW2d
532 (1982). Moreover, a police officer is generally permitted to provide lay opinion testimony
concerning matters within his or her personal knowledge and experience. People v Oliver, 170
Mich. App. 38, 50; 427 NW2d 898 (1988), mod 433 Mich. 862 (1989).
On appeal, defendant claims that the detective impermissibly vouched for the victim’s
credibility when he testified that “it’s pretty rare” for sexual assault victims to immediately
disclose the details of a sexual assault, and that it is not uncommon for a female sexual assault
victim to withhold some of the details of a sexual assault from a male police officer. We
conclude that this testimony did not constitute an opinion regarding the victim’s veracity or
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credibility. Instead, the statements comprised the detective’s lay opinion in light of his
experience with sexual assault victims, which is permissible under MRE 701 (“If the witness is
not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact
in issue.”). See also People v McLaughlin, 258 Mich. App. 635, 657-658; 672 NW2d 860 (2003);
People v Hanna, 223 Mich. App. 466, 475; 567 NW2d 12 (1997), citing MRE 701. It is apparent
that the detective was providing an opinion or inference rationally related to his own experiences
with female sexual assault victims, and this opinion or inference was helpful to a clear
understanding of the evidence of sexual assault in this case.2 Thus, defendant has failed to
establish a plain error affecting his substantial rights. Carines, 460 Mich. at 763-764.
D. TESTIMONY REGARDING CORROBORATION BY OTHER WITNESSES
Third, defendant argues that the detective impermissibly testified that other witnesses
corroborated the victim’s testimony. We disagree.
In particular, defendant appears to challenge the following exchange between the
prosecutor and the detective:
Q. With respect to the photographs and what’s been depicted as far as
their dates, [the victim] told you when those photographs were taken, correct?
A. Correct.
Q. And you also spoke with several other witnesses who took those
photographs and told you when they took those photographs?
A. Correct.
Q. So you do know or have knowledge about that from the witnesses?
A. The witnesses that corroborated the story [of] the victim as depicted in
those photos as a part of the time [sic], there have been, during my investigation
when I spoke with the witnesses, a lot of the, a lot of the information I got
2
We conclude that the detective’s testimony constituted lay opinion because he was not offering
a technical or scientific analysis of the reporting patterns of sexual assault victims. See Petri,
279 Mich. App. at 416. However, even if the detective’s testimony arguably constituted
“scientific, technical, or other specialized knowledge,” such that the trial court should have first
determined whether the detective was qualified to testify as an expert, MRE 702, there is no
plain error. A police officer may be qualified as an expert witness based on his or her experience
or training in sexual abuse cases, Petri, 279 Mich. App. at 416-417, and the record shows that the
detective would have qualified given his years of service as a police officer and experience with
interviewing countless sexual assault victims.
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matched up very, very close within days, or, you know, the best as everybody
could remember on exact dates, two to three years ago, the ball team and
everything else.
Q. So when you speak with all the witnesses who’ve seen different
injuries and then look at the photographs, everything matched what the victim
stated to you?
A. Correct.
In context, it is evident that the challenged testimony was elicited in response to defense
counsel’s cross-examination of the detective, during which she sought to undermine the
credibility of the physical evidence in this case by emphasizing (1) the fact that several objects
were not tested for blood, skin cells, or DNA, (2) the fact that it was not apparent that the objects
supplied by the victim as evidence were necessarily the objects that defendant utilized to
perpetrate the assaults, and (3) the possibility that the photographs provided by the victim were
not taken immediately following the assaults. Notably, defense counsel’s last question during
her cross-examination of the detective was the following: “So we really don’t have any way to
say that the photos that [the victim] gave [you] were taken on the night she say’s [sic] really?”
As such, the record shows that defendant opened the door to the challenged testimony, as
it was offered to demonstrate that the detective had reason to believe that the pictures that he
received from the victim were taken when the victim said they were taken. Thus, the admission
of this testimony did not constitute a plain error affecting substantial rights. See People v
Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010) (“While a witness cannot properly
comment on the credibility of another witness, defendant opened the door to the question when
he attempted to undermine his companion’s credibility by pointing out that his statements to
police were not consistent.” [Citations omitted.]); People v Lipps, 167 Mich. App. 99, 108; 421
NW2d 586 (1988). Cf. People v Benton, 294 Mich. App. 191, 201; 817 NW2d 599 (2011).
Furthermore, the detective’s statements did not indicate the detective’s personal opinion
regarding the victim’s veracity, or vouch for her credibility; instead, he merely indicated that the
information provided by the witnesses during his investigation was consistent with the victim’s
accounts. See Dobek, 274 Mich. App. at 71; Buckey, 424 Mich. at 17.
However, even if we assume that this testimony was inadmissible, defendant has failed to
establish that he was prejudiced by its admission. The jury had an opportunity to hear both the
victim’s and the other witnesses’ testimony. Consistent with the detective’s statements, it is
obvious that the other witnesses’ corroborative testimony at trial “matched” the victim’s
testimony. To the extent that defendant suggests that the detective’s statements were given
undue weight by the jury in light of his status as a police officer, the jury was specifically
instructed that they were to “decide what the facts of this case are,” and that the police officers’
testimony was “to be judged by the same standards you use to evaluate the testimony of any
other witnesses.” “Jurors are presumed to follow their instructions . . . .” People v Mahone, 294
Mich. App. 208, 212; 816 NW2d 436 (2011). Thus, there is no indication that the detective’s
statement affected the outcome of the proceedings. Carines, 460 Mich. at 763-764.
E. INEFFECTIVE ASSISTANCE OF COUNSEL
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Defendant also argues that defense counsel provided ineffective assistance by failing to
object to the detective’s testimony. We disagree.
As explained supra, defendant has failed to establish any error with regard to the
detective’s testimony regarding the victim’s prior consistent statements and his experience with
sexual assault victims. Accordingly, defense counsel did not provide ineffective assistance when
she failed to object to this testimony, as failing to raise meritless or futile objections does not
constitute ineffective assistance of counsel. Ericksen, 288 Mich. App. at 201. Moreover, even if
we assume that the detective’s testimony regarding the other witnesses’ corroboration of the
victim’s testimony was erroneous, defendant has failed to establish the requisite prejudice, as
discussed above. Vaughn, 491 Mich. at 669-671.
III. LACK OF DETAIL IN FELONY INFORMATION, JURY INSTRUCTIONS, AND
VERDICT FORMS
Next, defendant argues that his AGBH convictions should be vacated because the felony
information, jury instructions, and verdict forms were too generic. We disagree.
A. STANDARD OF REVIEW
Because defendant expressly approved the jury instructions provided by the trial court, he
has waived any claim of error related to the instructions. People v Kowalski, 489 Mich. 488, 504-
505; 803 NW2d 200 (2011); see also People v Gaines, 306 Mich. App. 289, 310-311; 856 NW2d
222 (2014). Accordingly, we will not review his arguments related to the jury instructions.
Defendant failed to raise his claims related to the felony information and verdict forms in the
trial court and, therefore, failed to preserve those arguments for appeal. People v Metamora
Water Serv, Inc, 276 Mich. App. 376, 382; 741 NW2d 61 (2007). Thus, we will review those
claims for plain error affecting substantial rights. Carines, 460 Mich. at 763.
B. ANALYSIS
The gravamen of defendant’s argument is that the ambiguous nature of the felony
information and verdict forms precluded the jury from finding that the prosecution established
defendant’s guilt beyond a reasonable doubt, because (1) the language was insufficient to support
three separate charges of AGBH, and (2) the record does not indicate the particular acts
identified by the jury as constituting three counts of AGBH. Accordingly, defendant’s claim of
error related to the felony information and verdict forms is limited to the validity of the jury’s
verdict—finding defendant guilty of three counts of AGBH—based on those documents. Even if
we assume that the felony information and verdict forms were not specific enough in this case,
defendant has failed to establish that reversal is warranted.
Defendant asserts that “it cannot be said that the [prosecution has] met [its] constitutional
burden to establish guilt beyond a reasonable doubt because the record does not establish what
acts the jury found constituted AGBH, let alone three counts of AGBH.” Contrary to
defendant’s claim, it is apparent that both parties established the acts that the jury needed to find
beyond a reasonable doubt in order to convict defendant of each count of AGBH, even though
those facts are not specifically described in the felony information or verdict forms.
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The felony information states that all of the acts on which defendant’s charges were
based occurred between July 2006 and April 8, 2013 in Chippewa County.3 In her closing
argument, the prosecutor expressly described the three acts that gave rise to the AGBH charges:
The defendant again is charged with three counts of assault with intent to
do great bodily harm less than murder. And here are the elements. First that the
defendant tried to physically injure [the victim]. Second at the time the defendant
had the ability, thought he had the ability or, [sic] had the ability or thought he
had the ability. And third that the defendant intended to cause great bodily harm.
Actual injury is not necessary. But you can consider it, injury, in
determining whether there was intent. Great bodily harm means physical injury
that could serious [sic] harm the health or function of the body.
Consider these events. A time in August of 2010 when the defendant
grabs the victim by the throat and punched her in the head so hard that it shattered
her teeth. And left her looking like she does in those pictures. From the top of
her eye down to her neck. The time that the defendant took a stereo cord and
wrapped it around her throat so that she could not breathe. Intent. The time that
the defendant held her and tried to take a lit cigarette to her face and threw her
down so hard he dislocated her pelvic [sic].
The prosecutor also reiterated during her closing argument that the jury needed to conclude that
defendant was guilty beyond a reasonable doubt in order to return a guilty verdict.
Similarly, during her closing argument, defense counsel expressly addressed each of the
counts in the order that they appear on the felony information and responded to the prosecutor’s
arguments, thereby delineating the facts that the jury needed to find beyond a reasonable doubt
for each AGBH count.4 Thus, even though the incidents giving rise to each AGBH count were
not specifically described in writing on the felony information and the verdict forms, it is clear
that the jury was apprised, by both the prosecution and the defense, of the facts that it needed to
find beyond a reasonable doubt with regard to each of the three counts of AGBH. Moreover, the
trial court expressly instructed the jury, and defense counsel reminded the jury, that the
prosecutor needed to prove beyond a reasonable doubt every element of each charge in order to
convict defendant. Again, “[j]urors are presumed to follow their instructions . . . .” Mahone, 294
Mich. App. at 212. Accordingly, in viewing the record as a whole, defendant’s claim, i.e., that the
3
Although the felony information states that all of the acts occurred between July 2006 and April
8, 2013, the jury was instructed to consider defendant’s acts between August 2010 and April 8,
2013.
4
For example, defense counsel expressly stated that “[c]ount six is when [defendant] took the
cigarette to her face in the camper” and “push[ed] her over backwards, so hard that she can
barely walk the next day,” and explicitly argued that defendant is “not guilty of great bodily
harm on this count.”
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record does not identify the acts found by the jury to comprise three counts of AGBH, has no
merit.
Furthermore, to the extent that defendant frames this claim as “an insufficient evidence
issue,” our review of the record confirms that the victim’s testimony, which was extensively
corroborated by other witnesses’ testimony, which was more than sufficient to prove defendant’s
guilt beyond a reasonable doubt for three counts of AGBH. See People v Stevens, 306 Mich. App.
620, 628; 858 NW2d 98 (2014) (“The elements of [assault with intent to do great bodily harm]
are (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and
(2) an intent to do great bodily harm less than murder.” [Quotation marks and citation
omitted.]).
Therefore, given that each count of AGBH was specifically described to the jury by both
the prosecution and the defense, defendant has failed to establish a plain error that affected his
substantial rights based on the “generic language” of the felony information and the verdict
forms, as there is no indication that the unspecific nature of the documents affected the outcome
of the trial. Carines, 460 Mich. at 763. Likewise, even if the language was insufficient, reversal
is unwarranted, as the evidence adduced precludes a finding that the generic nature of the felony
information and the verdict forms resulted in the conviction of an actually innocent defendant,
and there is no indication that the language affected the fairness, integrity, or public reputation of
the proceedings in light of the attorneys’ statements and the trial court’s instructions. Id. at 763-
764.
IV. STANDARD 4 BRIEF
Defendant raises three additional issues in a brief filed in propria persona pursuant to
Administrative Order 2004-6, Standard 4. We will address each argument in turn.
A. SUBSTITUTE COUNSEL
First, defendant argues that he is entitled to a new trial because the trial court failed to
make a thorough inquiry in response to his request for substitute court-appointed counsel. We
disagree.
1. STANDARD OF REVIEW AND APPLICABLE LAW
In general, we review a trial court’s decision regarding the substitution of counsel for an
abuse of discretion, which occurs when the trial court’s decision “falls outside the range of
reasonable and principled outcomes.” People v Strickland, 293 Mich. App. 393, 397; 810 NW2d
660 (2011) (quotation marks and citation omitted); People v Echavarria, 233 Mich. App. 356,
368-369; 592 NW2d 737 (1999). However, because defendant failed to request the substitution
of counsel in the circuit court, we review the trial court’s decision regarding for plain error
affecting substantial rights. Carines, 460 Mich. at 763.
All criminal defendants enjoy the right to the assistance of counsel under the United
States and Michigan constitutions. US Const, Am VI; Const 1963, art 1, § 20. However, this
right is not unlimited, especially concerning the substitution of counsel:
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An indigent defendant is guaranteed the right to counsel; however, he is not
entitled to have the attorney of his choice appointed simply by requesting that the
attorney originally appointed be replaced. Appointment of a substitute counsel is
warranted only upon a showing of good cause and where substitution will not
unreasonably disrupt the judicial process. Good cause exists where a legitimate
difference of opinion develops between a defendant and his appointed counsel
with regard to a fundamental trial tactic. [Strickland, 293 Mich. App. at 397
(internal quotation marks and citations omitted).]
“When a defendant asserts that the defendant's assigned attorney is not adequate or diligent, or is
disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute,
take testimony and state its findings and conclusion on the record.” Id. (quotation marks and
citation omitted). It is the defendant’s responsibility to request a hearing to determine whether
his attorney should be replaced. People v Ceteways, 156 Mich. App. 108, 118; 401 NW2d 327
(1986). “ ‘A judge’s failure to explore a defendant’s claim that his assigned lawyer should be
replaced does not necessarily require a conviction following such error be set aside.’ ” Id.,
quoting People v Ginther, 390 Mich. 436, 442; 212 NW2d 922 (1973). Instead, the proper
remedy on appeal for a trial court’s refusal to grant a hearing is to order such a hearing. Id.,
quoting Ginther, 390 Mich at 444-443.
2. ANALYSIS
Contrary to defendant’s characterization of the record, defendant never moved for, or
requested, substitute counsel in the trial court. Defendant simply alerted the court that he had
filed a motion for substitute counsel in the district court, which the district court denied.
Although defendant’s statements in the circuit court may have been intended to express some
dissatisfaction with his counsel, he never asserted that a conflict had developed with his attorney;
never claimed that his counsel was inadequate, disinterested, or not diligent; never requested a
hearing on whether defense counsel should be replaced; and never otherwise claimed that good
cause existed for the substitution of counsel. The circuit court judge specifically advised
defendant that he may file a motion, either drafted by himself or defense counsel, for the
substitution of counsel, and that the trial court would “hear [the motion] on its merits when it’s
properly filed.” However, defendant never took advantage of that opportunity.5
Thus, because defendant never moved for substitute counsel in the trial court, the trial
court’s failure to further inquire into whether a substitution of counsel was warranted did not
constitute a plain error affecting defendant’s substantial rights. Carines, 460 Mich. at 763.
B. JUROR OATH
5
In his Standard 4 brief, defendant only identifies his discussion on the record with the trial court
at his arraignment as “prima facie proof” that the trial court “failed to make the mandatory
inquiry into [defendant’s] request for substitution of court-appointed counsel.” He does not
assert that he filed a motion for substitute counsel, as the trial court instructed.
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Next, defendant argues that he is entitled to a new trial because the trial court failed to
administer an oath to the prospective jurors prior to the jury selection process pursuant to MCR
6.412(B). We disagree.
1. STANDARD OF REVIEW
Defendant failed to preserve this issue by raising it in the trial court. Metamora Water
Serv, Inc, 276 Mich. App. at 382. Defendant appears to suggest, based on People v Allan, 299
Mich. App. 205, 216; 829 NW2d 319 (2013),6 abrogated by People v Cain, 498 Mich. 108; 869
NW2d 829 (2015), that the trial court’s failure to administer the oath constitutes a structural error
that requires automatic reversal without a showing of prejudice. However, the Michigan
Supreme Court has held that an unpreserved claim is reviewed for plain error affecting
substantial rights under the four-prong test articulated in Carines, regardless of whether the error
is a violation of a court rule or a structural constitutional error. Cain, 498 Mich. at 117 n 4, citing
People v Vaughn, 491 Mich. 642, 666-667; 821 NW2d 288 (2012). See also Vaughn, 491 Mich.
at 655 n 42. Thus, we conclude that defendant’s unpreserved claim is reviewed for plain error
affecting substantial rights. Id. at 114-118.
2. ANALYSIS
Pursuant to MCR 6.412, “[b]efore beginning the jury selection process, the court should
give the prospective jurors appropriate preliminary instructions and must have them sworn.” As
defendant asserts, there is no indication in the record that the prospective jurors were sworn as
required by MCR 6.412(B), which constitutes a plain error. However, the trial court properly
administered the oath required by MCR 2.511(H)(1) after the jury was selected and before the
trial began. The trial court also reminded the jury during its closing jury instructions that the
jurors took “an oath to return a true and just verdict based only on the evidence and my
instructions on the law,” not “sympathy or prejudice.” Additionally, the trial transcript also
indicates that the jury was sworn again immediately before it began its deliberations, although
the oath itself is not described in the record. Defendant does not argue, and there is nothing in
the record to suggest, that any prospective jurors concealed information during the voir dire
process, or were untruthful or biased. Thus, under these circumstances, defendant has failed to
6
Allan, 299 Mich. App. at 216, addressed a trial court’s failure to administer an oath to the jury
after voir dire but prior to trial. That case was recently abrogated by the Michigan Supreme
Court in People v Cain, 498 Mich. 108; 869 NW2d 829 (2015). In Cain, the Court rejected the
bright-line rule that a failure to properly swear a jury constituted an error that required reversal,
even in the absence of an objection, and instead applied the four-prong Carines test. Id. at 112-
113, 121-128. Based on its review of the record, the Court upheld the defendant’s convictions
under the plain error standard on the basis that the trial court actually ensured throughout the
proceedings that the defendant’s case was heard by a fair and impartial jury. Id. at 128-129.
Accordingly, even if we disregard the factual differences between Allan and this case, Allan is
not dispositive here.
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establish that the trial court’s failure to administrate the oath required under MCR 6.412(B)
constituted a plain error affecting his substantial rights. Carines, 460 Mich. at 763-764.
Likewise, we reject defendant’s claim of ineffective assistance based on defense
counsel’s failure to object to the trial court’s failure to administer the oath. For the same reasons,
defendant has failed to demonstrate prejudice as a result of defense counsel’s error. Vaughn, 491
Mich. at 669-671.7
C. PROSPECTIVE JUROR QUESTIONNAIRES
Lastly, defendant argues that he is entitled to a new trial because defense counsel
provided ineffective assistance when she refused to allow defendant to review the prospective
jurors’ personal history questionnaires. See MCR 2.510(B)(1), (C)(1)(c). We disagree.
1. STANDARD OF REVIEW
Again, our review of defendant’s claims is limited to mistakes apparent on the record
because he did not move for a new trial or a Ginther hearing. Petri, 279 Mich. App. at 410.
2. ANALYSIS
The record includes no indication that defense counsel rejected defendant’s request to
review the juror questionnaires. Because defendant has failed to establish the factual predicate
of his argument, his claim of ineffective assistance necessarily fails. See People v Hoag, 460
Mich. 1, 6; 594 NW2d 57 (1999).
Further, even if we assume, arguendo, that defense counsel did, in fact, deny defendant’s
request, and that this denial fell below an objective standard of reasonableness, the record does
not support defendant’s claim of prejudice, i.e., that the defense’s decisions regarding for cause
and peremptory challenges were not intelligently made. Vaughn, 491 Mich. 642, 669-671.
Instead, the record clearly indicates that the peremptory and for cause challenges raised by the
defense were intelligently made based on the juror questionnaires. Defense counsel specifically
stated on the record that the questions that she asked during the jury selection process were based
on the jurors’ questionnaires, she expressly referenced jurors’ questionnaires at least twice
during voir dire, and she asked other questions that clearly originated from the questionnaires.
She also exercised numerous for cause and peremptory challenges. Defendant does not identify
any prejudice arising from the composition of the jury.
7
Defendant also requests a Ginther hearing concerning this issue in his Standard 4 brief.
Defendant failed to properly file a motion to remand in this Court for such a hearing pursuant to
MCR 7.211(C)(1). Although this Court has the authority under MCR 7.216(A)(5) and (7) to
remand for an evidentiary hearing even in the absence of a motion to remand, holding a Ginther
hearing to determine defense counsel’s trial strategy would have no effect on the outcome of this
issue given our finding that defendant has failed to establish the requisite prejudice. Thus,
remand is not necessary.
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Accordingly, because the only evidence in the record indicates that defense counsel’s
challenges were intelligently made, there is no indication that the outcome of the proceedings
would have been different if defendant had reviewed the questionnaires himself. Id.
V. CONCLUSION
Defendant has failed to establish a plain error affecting substantial rights as to any of the
claims of error identified on appeal. Likewise, he has failed to demonstrate that defense counsel
provided ineffective assistance. Thus, we affirm defendant’s convictions and sentences.
Affirmed.
/s/ Jane E. Markey
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan
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