People v. Traylor , 245 Mich. App. 460 ( 2001 )

628 N.W.2d 120 (2001) 245 Mich. App. 460

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Roy Lee TRAYLOR, Defendant-Appellant.

Docket No. 224329.

Court of Appeals of Michigan.

Submitted April 10, 2001, at Grand Rapids. Decided April 27, 2001, at 9:05 a.m. Released for Publication June 18, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Heather S. Draves, Assistant Prosecuting Attorney, for the people.

Daniel J. Rust, Detroit, for the defendant on appeal.

Before HOEKSTRA, P.J., and WHITBECK and COOPER, JJ.

PER CURIAM.

A jury convicted defendant of first-degree murder, M.C.L. § 750.316, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court sentenced defendant as a third-offense habitual offender, M.C.L. § 769.11, to consecutive sentences of life in prison for the murder conviction and two years in prison for the felony-firearm conviction. Defendant appeals as of right. We affirm.

Defendant first argues that the trial court abused its discretion in denying his request for new counsel and contends that the trial court erred in finding that defendant had not demonstrated good cause to replace trial counsel. Specifically, defendant asserts that he was entitled to new counsel because his counsel failed to adequately communicate and consult with him concerning potential defenses and pretrial motions for his case and because defendant had filed a grievance against him. Further, defendant asserted that he lacked confidence in his counsel and that he and his counsel had legitimate differences of opinion regarding trial tactics.

A trial court's decision regarding substitution of counsel will not be disturbed absent an abuse of discretion. People v. Mack, 190 Mich.App. 7, 14, 475 N.W.2d 830 (1991). Addressing the substitution of counsel, this Court has explained:

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. [Id. (citations omitted).]

Here, to the extent that defendant desired more communication with counsel, the court offered to order that defendant's pretrial incarceration location be moved to Kalamazoo pending trial to make contact easier between defendant and his counsel and to order counsel to have daily contact with defendant until the trial commenced, but defendant declined to take advantage of this arrangement. "A defendant may not purposely break down the attorneyclient relationship by refusing to cooperate with his assigned attorney and then argue that there is good cause for a substitution of counsel." People v. Meyers (On Remand), 124 Mich.App. 148, 166-167, 335 N.W.2d 189 (1983).

With regard to defendant's claim that counsel failed to file pretrial motions requested by defendant, we have reviewed the motions defendant requested that counsel file and find them frivolous. Defense counsel need not file frivolous motions. People v. Knapp, 244 Mich.App. 361, 386, 624 N.W.2d 227 (2001). Additionally, counsel's decision not to file the motions clearly falls within the categories of professional judgment and trial strategy that are matters entrusted to the attorney, and thus counsel's decision did not warrant appointing substitute counsel. People v. O'Brien, 89 Mich.App. 704, 708, 282 N.W.2d 190 (1979). In any event, defendant filed the motions on his own, and the trial court heard, and denied, the motions; thus, defendant suffered no prejudice.

To the extent that defendant implies that filing a grievance automatically created good cause for substitution, he cites no law in support of this claim. Defendant told the trial court that his filing a grievance against his counsel made him feel uncomfortable, but we find that claim insufficient to justify substitution of counsel. See People v. Mitchell, 454 Mich. 145, 170, n. 30, 560 N.W.2d 600 (1997) (although grievances against attorneys may be legitimate, they are also prompted by a desire for a new attorney, or an adjournment, and are routine incidents in the Recorder's Court). Further, defendant's mere allegation that he lacked confidence in his trial counsel is not good cause to substitute counsel. People v. Tucker, 181 Mich.App. 246, 255, 448 N.W.2d 811 (1989), remanded sub nom People v. Musick, 437 Mich. 867, 462 N.W.2d 586 (1990).

Finally, although defendant argues that he and counsel had a legitimate difference of opinion regarding trial tactics, he fails to state his claims with any degree of specificity. "Defendant may not leave it to this Court to search for a factual basis to sustain or reject his position." People v. Norman, 184 Mich.App. 255, 260, 457 N.W.2d 136 (1990). On this record, we conclude that the trial court did not abuse its discretion in denying defendant's request for new counsel.

Next, defendant argues that the trial court abused its discretion in denying defendant's pro se motion for discovery, resulting in the denial of his due process rights to a fair and impartial trial. According to defendant, "[t]he main request for discovery was for the prison files of key witnesses, who were inmates, [and] the policy directives of MDOC [Michigan Department of Corrections] relating to any benefits an inmate could obtain by testifying, including parole and their visiting records." We review for abuse of discretion a trial court's decision regarding whether to order discovery. People v. Stanaway, 446 Mich. 643, 680, 521 N.W.2d 557 (1994); People v. Perez-DeLeon, 224 Mich.App. 43, 60, 568 N.W.2d 324 (1997).

Here, defendant's motion was frivolous because he sought information that was not under the prosecutor's control and supervision. The prosecutor is not required to do defendant's investigation for him. People v. Leo, 188 Mich.App. 417, 427, 470 N.W.2d 423 (1991) ("The prosecutor's office is not required to undertake discovery on behalf of a defendant."). Defendant failed to show a violation of his due process right to the disclosure of information. People v. Lester, 232 Mich.App. 262, 281-282, 591 N.W.2d 267 (1998); see also People v. Fox (After Remand), 232 Mich.App. 541, 549, 591 N.W.2d 384 (1998). Thus, we find no abuse of discretion.

Finally, defendant argues that his counsel was ineffective for failing to secure before trial the documents that defendant sought in his pro se motion for discovery. We disagree. Defendant asserts that the requested documents were "relevant to attack the credibility of the witnesses who were inmates." However, we reviewed the record and find that defense counsel developed the issues and sufficiently attacked the inmate witnesses' credibility. See People v. McFadden, 159 Mich.App. 796, 800, 407 N.W.2d 78 (1987). Defendant has failed to show a serious error attributable to counsel, or resulting prejudice. People v. Gist, 188 Mich.App. 610, 613, 470 N.W.2d 475 (1991).

Affirmed.