Opinion
No. 335350
06-20-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DEVON ARMANTE BELL, Defendant-Appellee.
UNPUBLISHED Wayne Circuit Court
LC No. 15-007963-01-FC Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ. PER CURIAM.
The prosecution appeals by leave granted the trial court's order granting defendant's motion for a new trial. Defendant was convicted after a bench trial of carjacking, MCL 750.529a, armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 108 to 180 months' imprisonment for the carjacking conviction, 108 to 180 months' imprisonment for the armed robbery conviction, and two years' imprisonment for the felony-firearm conviction. Defendant filed a motion for a new trial with the trial court, claiming he was denied the effective assistance of counsel. The trial court held a Ginther hearing, and subsequently granted defendant's motion for a new trial. We reverse and remand.
People v Bell, unpublished order of the Court of Appeals, entered December 6, 2016 (Docket No. 335350).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
This case arises out of a carjacking that occurred around 4:00 a.m. on September 8, 2015, in Detroit. The victim, Katie Clark, had just parked her Pontiac G6 on the street and was standing near the back driver's side door when a gold minivan pulled up next to her car. The passenger had a gun in his hand, and he got out of the minivan and told Clark to "give me all of your s***." Clark threw her keys at the passenger, and he got in the Pontiac G6 and drove away. Clark watched the driver of the van close the passenger van door and drive away. That same day, around 1:00 p.m., Detective Alfredo Jimenez discovered the stolen Pontiac G6 and a stolen Pontiac Torrent. Approximately nine men were standing around the cars, including defendant and another man, Terrell Cook. Defendant got in the Pontiac Torrent with a few others, and the two cars drove to a collision shop nearby. Cook stayed back and walked to a nearby house. Jimenez ordered scout cars to move in on the two cars, and approximately nine people were arrested in connection with the stolen cars, including defendant and Cook. The next day, Clark picked defendant and Cook out of a lineup, claiming that defendant was the gunman and Cook was the driver. At the joint bench trial, Clark said she told police that the gunman had a light skin complexion, but admitted that defendant did not have a light skin complexion. Cook was acquitted of all charges because the trial court determined that Clark only had a "split second" to look at Cook. However, the trial court convicted defendant because Clark had a much better ability to see defendant.
At the Ginther hearing, defendant claimed that his trial attorney, Ben Gonek, refused to call three alibi witnesses to the stand, Yvetta Gee, Yolanda Bell, and Charrita Brown, and instead only pursued a misidentification defense. According to the witnesses, defendant was at Gee's house at the time of the incident. At the hearing, Gonek testified that he told defendant that the alibi defense would not work because he did not find the three witnesses to be credible, the prosecution had jail calls between defendant and the witnesses that were damaging to the alibi defense and may have undermined the misidentification defense, and defendant once told Gonek that he was not at Gee's house that night. After the hearing, the trial court reserved ruling until it had listened to the jail tapes that Gonek relied on. After listening to the tapes, the trial court stated the following:
First of all, [Gonek] made the claim that he had listened to the tapes and the tapes reinforced his belief that there was not a valid alibi defense. When I listened to those tapes, from the very beginning, from tape number one, I just heard: You didn't do it, Devon. So and so was there. Such and such was there. Yeah. I was over so and so's. I didn't do it. So and so could tell me. There is no question in my mind that, call it alibi, call it excuse, call it trying to remember, trying to get the witnesses saying who was here, pull the phone records, that was the focus of easily the first fifteen calls. I mean -- And excited talk. Because they hadn't met the lawyer, [Gonek], yet. And so, the excitement level was: Just tell him. You know that he's not gonna [sic] talk to me. Well, tell him to -- It was just everywhere.
* * *
I'm of the belief that there was sufficient enough information provided to [Gonek] that, in this particular case, with the facts as he thought them to be, that he didn't listen to that tape as carefully as I did. I think that there was evidence to support, not a complete alibi. Because, of course, you know, the question is: Well, you don't know where somebody is if you're sleeping. That's always the bottom line. Well, how do you know if they were there at 12:00 if you were sleeping at 12:00. And then the answer is: Well I would know.
It should have been prevented, the outcome in this case. It's likely that the outcome would have been different had those witnesses testified.
The prosecution argues that defendant received the effective assistance of counsel because Gonek's decision to go forward with only a misidentification defense without calling any other witnesses was sound trial strategy.
"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Findings of fact are reviewed for clear error, but the ultimate constitutional issue is reviewed de novo. Id. This Court reviews a trial court's decision to grant or deny a motion for a new trial for an abuse of discretion. People v Powell, 303 Mich App 271, 276-277; 842 NW2d 538 (2013). An abuse of discretion is found when the trial court's decision "falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). "A mere difference in judicial opinion does not establish an abuse of discretion." People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
"To establish ineffective assistance of counsel, defendant must first show that (1) his trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Uphaus (On Remand), 278 Mich App 174, 185; 748 NW2d 899 (2008). Defense counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (citation and quotation marks omitted). Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). However, "[t]rial counsel is responsible for preparing, investigating, and presenting all substantial defenses," and "[a] substantial defense is one that might have made a difference in the outcome of the trial." People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (citation and quotation marks omitted). "In general, the failure to call a witness can constitute ineffective assistance of counsel only when it deprives the defendant of a substantial defense." People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (citation and quotation marks omitted).
There are several reasons why we must reverse the trial court's order. First, the trial court never made a finding that Gonek's "performance fell below an objective standard of reasonableness under the prevailing professional norms[.]" Uphaus, 278 Mich App at 185. Instead, the trial court skipped that required finding and went right to a conclusion that had the evidence been presented, a different result would have been probable. Of course we only get to that question if there is an initial finding that the attorney's conduct fell below the required standards. See People v Reed, 449 Mich 375, 400-401; 535 NW2d 496 (1995) ("Both prongs of the test must be fulfilled" before a finding of ineffective assistance of counsel can be made.).
Second, this is not a case where the attorney failed to investigate. The trial court recognized that Gonek had reviewed the jail tapes, but only determined that he must not have listened to them carefully enough. Additionally, Gonek testified that he interviewed defendant's three proposed alibi witnesses, and one of those proposed witnesses, defendant's mother, testified that she, Brown, and Gee met with Gonek and told him of their proposed testimony. And finally, the trial court never made a finding that Gonek had not interviewed these proposed witnesses. Thus, the question is whether Gonek's decision to refrain from calling witnesses whom he interviewed, which is presumed to be sound trial strategy, nonetheless deprived defendant of a substantial defense. Trakhtenberg, 493 Mich at 52; Payne, 285 Mich App at 190.
As the trial court recognized, alibi and misidentification defenses are not mutually exclusive or inconsistent. The record shows that Gonek put forward a misidentification defense based primarily upon the victim's limited ability to view her assailants and the resultant description that varied from defendant's actual appearance. Defendant was, therefore, not deprived of a substantial defense; instead, as the trial court ruled, defendant was not provided as robust a defense as he would have received had those witnesses testified.
There is no suggestion that Gonek's cross-examination of the victim was in any way deficient.
The trial court's exclusive explanation for finding prejudice (though not in those terms) was that the jail conversations contained a consistent theme—that defendant did not commit the crime and was with Gee that night. While not stated in precise terms, the trial court essentially determined that Gonek did not properly investigate the jail tapes. But that criticism amounts to impermissible second-guessing through the use of hindsight. Indeed, this conclusion ignores the command that "[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances . . . ." Reed, 449 Mich at 391, quoting Kimmelman v Morrison, 477 US 365, 381; 106 S Ct 2574; 91 L Ed 2d 305 (1986). Courts must remember when applying this "highly demanding" burden that "[t]here are countless ways to provide effective assistance in any given case" and that "unless consideration is given to counsel's overall performance, before and at trial, it will be 'all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.' " Reed, 449 Mich at 390-391, quoting Kimmelman, 477 US at 386 (emphasis added; citation omitted).
Here, Gonek testified to several circumstances other than the prosecutor's threat of using the jail tapes that affected his decision to not call these proposed alibi witnesses. For instance, at that time, defendant was charged in another similar crime that occurred in close proximity to the instant one, and defendant claimed that a surveillance video from that case showed he did not commit this crime. But Gonek also concluded that the video showed defendant's alibi was incomplete. Additionally, two of the proposed alibi witnesses did not support his alibi defense, and the victim had fairly significant discrepancies in her identification of defendant. None of this testimony was rejected by the trial court, and it reveals that at the time the strategic decision was made, Gonek had to consider more than just the content of the jail tapes. We cannot conclude that defendant overcame the strong presumption that Gonek's performance fell within the wide range of norms.
The charge was later dismissed.
There were inconsistences among the witnesses' testimony at the Ginther hearing. For instance, Gee said she picked her cousin up along with defendant the night before the incident, but defendant later testified that his cousin was not with them at that time. Brown testified that she saw defendant on the porch around 4:30 a.m., but defendant later testified that he went out onto Gee's porch at midnight. Additionally, Brown omitted from her affidavit the fact that she drove to Gee's house. --------
Reversed and remanded. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray