Opinion
358401
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DERIC EUGENE EARLS, Defendant-Appellant.
UNPUBLISHED
Ingham Circuit Court LC No. 20-000182-FC
Before: Gadola, P.J., and Garrett and Feeney, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a); MCL 750.520b(2)(b) (sexual penetration of victim under 13 years of age by defendant 17 years of age or older); one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a); MCL 750.520c(2)(b) (sexual contact with victim under 13 years of age by defendant 17 years of age or older); and one count of accosting, enticing, or soliciting a child for an immoral purpose (accosting), MCL 750.145a. The trial court sentenced defendant to serve 25 to 40 years' imprisonment for all three counts of CSC-I, 45 months' to 15 years' imprisonment for CSC-II, and 17 months' to 4 years' imprisonment for accosting. We affirm.
I. BACKGROUND
This case arises out of the sexual abuse of the minor victim and his younger sister. The victim testified that defendant, who is his uncle, sexually assaulted him on multiple occasions. The victim was eight years old when the defendant sexually assaulted him for the first time. The victim's sister similarly testified that defendant inappropriately touched her when she was seven or eight years old.
Defendant's wife (the victim's aunt) testified that she never saw defendant act inappropriately toward the victim or the victim's sister. She further testified that she believed that the victim's stepfather had sexually assaulted him because he was scared of his stepfather. She testified that the victim came to her trailer "scared, shaking, [and] crying" after the victim's stepfather was released from prison; however, the trial court sustained the prosecution's objections when she appeared to be on the verge of testifying about what the victim specifically said to her. Defendant's wife stated that she "would never allow" defendant "to go down the hallway and be around the kids by himself."
The jury found defendant guilty of three counts of CSC-I, one count of CSC-II, and one count of accosting, but acquitted him of two additional counts of CSC-II. Defendant moved for a new trial and an evidentiary hearing, arguing that his trial counsel was ineffective for failing to seek admission into evidence of the victim's statement to his aunt under a hearsay exception after the prosecution objected to his aunt's testimony on hearsay grounds. The trial court denied both of defendant's motions for failing to show that his counsel was ineffective or that an evidentiary hearing was warranted. This appeal followed.
II. SPEEDY TRIAL
Defendant argues that he was denied his constitutional right to a speedy trial, and the trial court abused its discretion by denying his motion to dismiss. We disagree.
We review a trial court's decision on a motion to dismiss for an abuse of discretion. People v Stone, 269 Mich.App. 240, 242; 712 N.W.2d 165 (2005). The trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. People v Babcock, 469 Mich. 247, 269; 666 N.W.2d 231 (2003). We review de novo the constitutional question whether a defendant was denied the right to a speedy trial. See People v Williams, 475 Mich. 245, 250; 716 N.W.2d 208 (2006). A trial court's factual findings are reviewed for clear error. Id.
The right to a speedy trial is guaranteed to criminal defendants by the federal and Michigan Constitutions as well as by statute and court rule. U.S. Const, Am VI; Const 1963, art 1, § 20; MCL 768.1; MCR 6.004(A). To determine whether a defendant has been denied the right to a speedy trial, a court should balance the following four factors set forth in Barker v Wingo, 407 U.S. 514; 92 S.Ct. 2182; 33 L.Ed.2d 101 (1972): "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Williams, 475 Mich. at 261-262. In this case, defendant asserted his right to a speedy trial in his motion to dismiss.
"The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant's arrest." Id. at 261, citing United States v Marion, 404 U.S. 307, 312; 92 S.Ct. 455; 30 L.Ed.2d 468 (1971). A delay of more than 18 months is presumptively prejudicial, and the prosecution must show that no prejudice occurred. People v Rivera, 301 Mich.App. 188, 193; 835 N.W.2d 464 (2013). There is then "an inquiry into the other factors to be considered in the balancing of the competing interests to determine whether a defendant has been deprived of the right to a speedy trial." Williams, 475 Mich. at 262 (quotation marks and citation omitted).
In this case, the parties agree that defendant was arrested and arraigned on January 15, 2020, and he remained incarcerated until his trial began on June 14, 2021. Defendant, therefore, remained incarcerated for approximately 17 months between his arrest and trial. Regarding the reasons for the delay, it is undisputed that the COVID-19 pandemic was responsible for the greater part of it. The trial court explained that it could not hold a trial for defendant because of logistical problems resulting from compliance with administrative orders from March 2020 up to the July 2020 hearing on defendant's motion. The trial court also noted at the hearing that defendant's trial was already rescheduled and that his trial would begin when the court was permitted to resume jury trials.
On March 15, 2020, the Michigan Supreme Court issued Administrative Order No 2020-1 imposing emergency measures on the Judiciary as a result of the pandemic. On March 18, 2020, Administrative Order 2020-2 instructed trial courts to adjourn all criminal matters, including jury trials, until after April 3 with few exceptions. These orders were extended through a number of additional orders, including Administrative Order 2020-10 through Administrative Order 2020-19, the continuing order regarding return to full capacity entered June 26, 2020. 505 Mich. xcix-clxviii (2020).
Docket congestion and delays are inherent in the court system, and, even if they are" 'technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial.'" People v Gilmore, 222 Mich.App. 442, 460; 564 N.W.2d 158, 167 (1997), quoting People v Wickham, 200 Mich.App. 106, 111; 503 N.W.2d 701 (1993). In United States v Smith, 494 F.Supp.3d 772, 783 (ED Cal, 2020), the court concluded that "emergency health measures to limit the spread of COVID-19" were responsible for a delay in the defendant's trial that did not "weigh against the Government" because "the Court's inability to safely conduct a jury trial is a good-faith and reasonable justification for the delay." Similarly, in this case, we conclude that the trial court could not hold the prosecution responsible for the docket congestion and delays caused by COVID-19 safety protocols. The prosecution had no ability to bring defendant to trial within several months of his arrest, and should not be held responsible for a delay resulting from the need to protect the health of all trial participants, and over which plaintiff had no control. Therefore, the 17-month delay from arrest to trial could not properly be imputed to plaintiff.
Whether defendant was prejudiced by the delay is critical to the analysis of whether defendant's speedy trial rights were abridged. People v Cain, 238 Mich.App. 95, 112; 605 N.W.2d 28 (1999). A defendant must prove that he suffered prejudice when the delay is less than 18 months. Rivera, 301 Mich.App. at 193. Defendant argues that his ability to defend himself was "significantly impaired" by the delay because it resulted in memory loss, witness loss, and a loss of evidence. "In considering the prejudice to the defendant, the most serious inquiry is whether the delay has impaired the defendant's defense." People v Simpson, 207 Mich.App. 560, 564; 526 N.W.2d 33 (1994). While the time lapse may have made presenting a defense more difficult, defendant's general allegations of prejudice are insufficient to establish that defendant was denied his right to a speedy trial. See Gilmore, 222 Mich.App. at 462. Defendant does not provide any specific allegation or proof or any particular instance of prejudice that he suffered as a result of the delay. Defendant has failed to demonstrate that his defense suffered prejudice by the delay.
In considering the four Barker factors (length of delay, reason for delay, the defendant's assertion of the right, and prejudice), defendant has not established that the prosecution or the court violated his right to a speedy trial. The 17-month delay resulted from factors that could not be imputed to plaintiff or the trial court, and could not have been avoided. Moreover, defendant has failed to establish that he suffered prejudice by the delay. The fact that the charged offenses occurred three to six years prior to the January 15, 2020 arraignment is insufficient to establish prejudice because the young victims did not report the abuse for years. The prosecution made a "diligent, good-faith effort to bring him to trial" during the pandemic. Moore v Arizona, 414 U.S. 25, 26; 94 S.Ct. 188; 38 L.Ed.2d 183(1973). Accordingly, the trial court did not abuse its discretion by denying defendant's motion to dismiss based on a speedy-trial violation.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that defense counsel was ineffective for failing to seek admission into evidence of the victim's statement to defendant's wife under an exception to the hearsay rule. We disagree.
Whether counsel was ineffective presents a mixed question of fact and law, and factual findings are reviewed for clear error, whereas questions of law are reviewed de novo. People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018). "The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake." People v Shaw, 315 Mich.App. 668, 672; 892 N.W.2d 15 (2016). Because no Ginther hearing was held in the trial court, our review is limited to errors apparent from the record. People v Acumby-Blair, 335 Mich.App. 210, 227; 966 N.W.2d 437 (2020).
People v Ginther, 390 Mich. 436, 445; 212 N.W.2d 922 (1973). The trial court denied the request for a Ginther hearing, at least in part, because defendant did not present an affidavit from the witness as to what testimony would have been given or any other offer of proof.
"To establish ineffective assistance of counsel, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." Shaw, 315 Mich.App. at 672. A defendant "making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland v Washington, 466 U.S. 668, 690; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). This Court then evaluates "whether the trial attorney's acts or omissions were outside the wide range of professionally competent assistance." People v Green, 322 Mich.App. 676, 684; 913 N.W.2d 385 (2018) (quotation marks and citation omitted). "This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel's competence with the benefit of hindsight." People v Traver (On Remand), 328 Mich.App. 418, 422-423; 937 N.W.2d 398 (2019) (quotation marks and citation omitted). However, "a court cannot insulate the review of counsel's performance by calling it trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). We presume counsel was effective, and defendant carries a heavy burden to overcome this presumption. Head, 323 Mich.App. at 539.
" 'Hearsay' is 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." MRE 801(c). "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 generally inadmissible, unless it is subject to a hearsay exception listed in the Michigan Rules of Evidence. MRE 802. Defendant asserts that the victim's statement was excepted from the hearsay rule as an "excited utterance," which is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." MRE 803(2). Defendant additionally argues that the statement was admissible under MRE 803(3) as "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)."
The admission of hearsay evidence as an excited utterance requires satisfaction of two conditions: (1) "that there be a startling event" and (2) "that the resulting statement be made while under the excitement caused by the event." People v Smith, 456 Mich. 543, 550; 581 N.W.2d 654 (1998). We agree with defendant that the alleged statement could presumably have been admitted as an excited utterance if, as defendant's wife's testimony suggested, the victim made the statement while "scared, shaking, [and] crying" when he spoke to her after finding out that his stepfather was released from prison. But we do not agree that defense counsel was ineffective for failing to further pursue admission of the specific statement when the gravamen of that statement was already clear from the aunt's testimony. It is clear from the record that counsel's trial strategy was to create reasonable doubt that defendant committed the sexual abuse by emphasizing that the victim's stepfather, whom the victim was afraid of, was the more likely culprit. Both the victim and his aunt testified that the victim was afraid of his stepfather and that the victim's stepfather was in and out of prison. The victim and his mother also testified that the victim previously made allegations to CPS against his stepfather for "flicking his penis." Defense counsel's decision not to pursue admission of the victim's statement under a hearsay exception, particularly in the face of repeated objections by the prosecutor, was a matter of trial strategy, and it was reasonable for defense counsel to choose not to the pursue admission of the statement because it was, at best, clearly cumulative evidence. People v Solloway, 316 Mich.App. 174, 190-191; 891 N.W.2d 174 (2016). This Court will not second-guess defense counsel's on matters of reasonable trial strategy, and defendant has not presented this Court with a reason to do so. See Traver, 328 Mich.App. at 422-423. Moreover, defendant has not shown that there is a reasonable probability of a different result. Accordingly, defendant has failed to establish the deficient-performance prong of his ineffective-assistance-of-counsel claim. Head, 323 Mich.App. at 539.
We do not, however, agree that the statement was potentially admissible under MRE 803(3), because that exception excludes "a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."
Affirmed.