People of Michigan v. Clifton Shary-Shmorree-L Witherspoon ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 28, 2017
Plaintiff-Appellee,
v No. 329964
Kent Circuit Court
CLIFTON SHARY-SHMORREE-L LC No. 15-001542-FC
WITHERSPOON,
Defendant-Appellant.
Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his conviction of perjury, MCL 767A.9(1)(b). For the
reasons set forth in this opinion, we affirm.
I. BACKGROUND
This appeal arises from a homicide that occurred near the Chicken Coop restaurant in
Grand Rapids, Michigan in the early morning hours of September 21, 2013. On that date, Rick
Hammond was killed when he suffered four gunshot wounds to his abdomen, lower back, upper
leg and the base of his thumb. An autopsy revealed that the lethal shots had been fired from
close range. An investigative subpoena was obtained by police and defendant was interviewed
on September 11, 2014. While under oath, defendant stated that he went to the Chicken Coop
restaurant once the night of the slaying. Defendant also told police that he was driven to the
“Cocktailz Bar” by a person named “Trenton” in a black Malibu. Defendant also informed
police during the interview that on the day and night in question he had been drinking and
smoking marijuana such that he was “high as hell.” According to other witnesses, defendant’s
testimony was not truthful so he was charged with perjury in violation of MCL 767A.9(1)(b) and
as a fourth-offense habitual offender in violation of MCL 769.12.
Prior to trial, defendant wrote notes to trial judges in Kent County initially complaining,
among other things, that his trial counsel and the prosecutor had provided him with transcripts on
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the proceedings in the underlying murder trial.1 Defendant contended that he should not be in
possession of those materials and as such, he was essentially complaining that he had received
too much information from his trial counsel.
Defendant, through counsel, brought a motion to quash the Amended Information. The
trial court denied the motion. Then, on July 6, 2015, a brief hearing was held during which the
trial was adjourned for a later date. At the hearing, defendant addressed the trial court, stating,
“Your Honor, can I address the Court, please?” The trial court responded, “No, you can’t,” and
then defendant stated, “I don’t want him representing me.” The trial court responded, “Okay.
All right. Hold on a second. I’ll listen to him for a moment.” Defendant then stated as follows:
“This attorney, I don’t know what it is, and I don’t know what’s the problem with the—the
[assistant prosecuting attorney], here. But he—he has not brought me my discovery. He got
like, six or seven other investigative subpoenas—[.]” The trial court asked defendant what he
had in his hand, and defendant indicated it was part of the discovery. The trial court stated that
then the prosecutor had actually given defendant discovery and that defendant was lying to the
court. Defendant responded, stating as follows:
He hasn’t given me full discovery. He keep tellin’ me he got witnesses
transcripts, and I said, well, we got trial today. And it was a couple witnesses on
the witness list that he was supposed to call. I don’t even know what they
testified to or said because I don’t have their transcripts. So—
The trial court responded, “All right. Just a second, sir. I’ve heard enough. I’m not going to
excuse [trial counsel]. He’s a very experienced attorney.” Defendant insisted that he did not
want defense counsel to represent him, but the trial court concluded that it was “not going to
excuse him” because it did not “see a basis for that,” and the case was “going to be adjourned for
only a couple of weeks.” The trial court indicated that a substitution of counsel at that point in
the case would be a delay that the trial court was not going to cause. The trial court instructed
defense counsel to provide defendant with copies of anything he had not yet provided to
defendant and concluded the hearing. Thereafter, a trial was held and the jury found defendant
guilty of perjury. Defendant was sentenced as previously stated, and he appeals as of right.
II. ANALYSIS
On appeal, defendant argues that the trial court abused its discretion by denying his
request for substitution of counsel without making adequate inquiry regarding disagreement
between defendant and defense counsel. This Court reviews this preserved claim for an abuse of
discretion. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011). “A trial court
1
Additionally, defendant contended, among other things, that the assistant prosecutor had
conspired with his trial counsel to deprive defendant of his constitutional rights. Defendant
additionally asked that the trial court place hold both counsel in contempt. Lastly, defendant
informed the trial judges that he was planning to file a multi-million dollar lawsuit against Kent
County.
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abuses its discretion when it selects an outcome that does not fall within the range of reasonable
and principled outcomes.” People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008).
“The Sixth Amendment provides that the accused in a criminal prosecution ‘shall enjoy
the right . . . to have the Assistance of counsel for his defence.’ ” People v Russell, 471 Mich
182, 187; 684 NW2d 745 (2004), quoting US Const, Am VI. However, a defendant in a criminal
case has only a limited right to challenge the appointed defense counsel:
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. [People v Mack, 190 Mich App 7, 14;
475 NW2d 830 (1991) (citations omitted).]
The presence of circumstances justifying good cause depend on the individual facts in each case.
People v Buie, 298 Mich App 50, 67; 825 NW2d 361 (2012).
“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.” Strickland,
293 Mich App at 397 (citation and quotation marks omitted). However, good cause for
substitution of counsel does not exist merely because a defendant is generally unhappy with the
appointed attorney’s representation or because a defendant lacks confidence in the appointed
attorney without substantial reason. Id. at 398. Furthermore, “a defendant’s conviction will not
be set aside, even in the absence of judicial consideration of the defendant’s allegation, if ‘the
record does not show that the lawyer assigned to represent [the defendant] was in fact inattentive
to his [or her] responsibilities.’ ” Buie, 298 Mich App at 67, quoting People v Ginther, 390 Mich
435, 442; 212 NW2d 922 (1973).
In this case, defendant argues that the trial court should have conducted a more
exhaustive inquiry at the July 6, 2015 hearing. Therefore, defendant’s claim on appeal does not
concern whether trial counsel was effective, but rather whether the trial court erred by not
making more factual findings regarding defendant’s claim for a different attorney. We find
defendant’s claims, however they are presented, meritless.
When defendant was writing trial judges in Kent County his complaint was that he was
given transcripts of proceedings to which he had no right to possess. In short, he claimed he had
acquired too much information. Then, as his trial date loomed, defendant told the trial judge that
he did not have enough information. The trial judge had this very information in front of him at
the time he made his decision to deny defendant’s request for a different attorney. As this Court
has previously held, substitution of counsel is only warranted upon a showing of good cause.
Mack, 190 Mich App at 14. General unhappiness or lack of confidence in defense counsel by
defendant is not enough for a showing of good cause. Strickland, 293 Mich App at 398. When
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defendant asserted that he wanted a substitution of counsel, the trial court in this case did have a
duty to hear defendant’s claim, and make and findings if there was a factual dispute. Id. at 397.
Here, though, defendant did not present a factual dispute, he did not allege good cause for
substitution of counsel, and in fact he only minimally addressed defense counsel’s actions in
representing him as a basis for his claim—he instead accused the prosecution of not providing as
much discovery material as it should have. Hence, when defendant was given the opportunity to
explain to the trial court why a different attorney should be appointed for him, he complained
about what he perceived as the prosecution and defense counsel’s failure to provide him with all
the documents that he believed he should have received. That claim simply did not present good
cause for substitution of counsel or call for any kind of further factual inquiry into a dispute
between defendant and defense counsel, especially after defendant admitted that he had in fact
received discovery materials. Therefore, the trial court did not abuse its discretion by denying
defendant’s request for substitution of counsel. Strickland, 293 Mich App at 397.2
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Kelly
2
To the extent defendant seemingly argues that his complaints against defense counsel were
more fully addressed in letters that he wrote to the trial court, we find this contention also
without merit. Defendant claimed in the letters that defense counsel should have cited cases in
his motion to quash, but such an assertion does not support defendant’s claim for substitution of
counsel. In sum, none of the issues raised on appeal represented a legitimate difference of
opinion with regard to a fundamental trial tactic. Instead, these complaints, at best, represented
nothing more than general unhappiness or lack of confidence in defense counsel by defendant,
which was not enough for a showing of good cause. Strickland, 293 Mich App at 398.
Additionally, even if there were an absence of judicial consideration of defendant’s claims in this
case, the trial court’s decision should be affirmed because the record does not show that defense
counsel was in fact inattentive to his responsibilities. Buie, 298 Mich App at 67. The record
demonstrates that defense counsel raised appropriate pretrial motions, presented arguments to the
trial court and jury, cross-examined witnesses, raised proper objections, moved for a directed
verdict, and otherwise appropriately preformed his duties representing defendant.
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