Opinion
354386
05-19-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL GARDNER, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-007612-01-FH
Before: Swartzle, P.J., and Cameron and Patel, JJ.
PER CURIAM.
Defendant appeals as of right his jury conviction of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant contends that he was denied effective assistance of counsel because his attorney failed to object to the admission to a third party of his recorded statement that he did jail time, but he had never been convicted of a crime. Defendant further maintains that the prosecution knew that the statement was false and engaged in misconduct by introducing it. Because defendant has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different without the statement, we affirm on both issues.
I. BACKGROUND
Defendant and the victim, Cleveland Dell, have been acquaintances for over ten years. Tension developed between the two men due to an alleged love triangle. The tension peaked at a crowded event on August 11, 2019 when defendant charged at Dell, without provocation, and the two men fought. Someone stepped in to separate the two men, at which point Dell heard defendant yell, "Give me the gun, give me the gun." Dell observed defendant walk towards another individual and then point a gun in the air. Dell fled when he saw the gun. As he fled, he heard two gunshots. Dell acknowledged that he did not see defendant fire the gun. Two individuals testified that they witnessed the fight, heard a noise that sounded like a gunshot, and saw Dell flee. But neither of the individuals heard defendant ask for a gun, saw him holding a gun, or saw him fire a gun.
Dell testified that defendant called him shortly after the incident and asked, "Where you at . . . why are you running?" Dell also received a text message from defendant shortly after the fight that said "Bum ass dude. Where you at? Don't be scared of no, of no hot shit. You said you had been shot before, right?" Two days later, defendant texted Dell an apology and offered to pay any costs associated with the cleaning or replacement of Dell's clothing.
At trial, the prosecution introduced three recordings of conversations that occurred in July of 2019 between defendant and the woman involved in the alleged love triangle. During the conversations, defendant made multiple statements that he was going to beat up and shoot Dell. In one recording, defendant stated, "I want the n****'s blood" and "I might shoot that bitch up." In another recording, defendant stated either "I did jail time, I did seven years to life" or "I did time in jail, facing seven years in prison." Trial counsel did not object to the admission of these recordings and did not request a curative instruction after the recordings were played for the jury. Ultimately, the jury found defendant guilty of AWIGBH and felony-firearm. Defendant was sentenced to 11 months to 10 years' imprisonment for the AWIGBH conviction and two years' imprisonment for the felony-firearm conviction.
There was no evidence or testimony of the love triangle. Defendant spoke of "pillow talk" and made other statements during the recorded conversations that defense counsel referenced during closing arguments and argued that the fight arose out of a love triangle.
This Court has requested a copy of the recording on several occasions, but has not received it. The parties acknowledge that defendant's statement on the recording is difficult to hear. It is undisputed that defendant stated, at a minimum, that he did jail time. But the parties dispute defendant's statement in the second clause. Defendant contends that he stated, "I did seven years to life." The prosecution maintains he stated he was "facing seven years in prison."
Defendant moved for a new trial pursuant to MCR 6.431(b). Defendant argued that his counsel was ineffective for failing to object to the admission of his statement that he did jail time. Defendant further argued that the prosecution engaged in flagrant misconduct by introducing this statement because the prosecution knew that defendant had never been convicted of a crime. The trial court set the matter for a Ginther hearing.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
At the Ginther hearing, trial counsel acknowledged that he was aware of defendant's false statement regarding jail time in one of the audio recordings and admitted that it was not helpful for the defense. Trial counsel maintained that he did not think the prosecution would play that particular portion of the recording, which is why he did not object to the admission of the recording. He asserted that he focused his efforts on defending the other incriminating statements made by defendant that overshadowed his isolated statement about jail time. Trial counsel explained that he elected to use the recordings as part of his trial strategy to argue that defendant was recklessly boasting to impress the woman who was involved in the love triangle.
The trial court noted that the statement was difficult to decipher, but concluded that defendant said that he did seven years. The trial court found that defense counsel was ineffective for failing to make any effort to suppress the statement. However, the trial court determined that the statement was not outcome-determinative because there was no evidence that the jury focused on the statement to convict defendant and the other evidence sufficiently established that defendant committed the crimes for which he was convicted. The trial court also concluded that, while the prosecution erred in introducing defendant's statement, it did not amount to misconduct. Consequently, the trial court denied defendant's motion for a new trial. Defendant now appeals.
The trial court noted that the jury asked for the text messages during deliberations, but did not ask for the recording or submit any questions regarding the recording.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he is entitled to a reversal of his convictions and a new trial because trial counsel failed to object to the admission of defendant's false statement that he served jail time. We disagree.
Claims of ineffective assistance of counsel present mixed questions of fact and constitutional law. People v Armstrong, 490 Mich. 281, 289; 806 N.W.2d 676 (2011). We review factual findings for clear error, while the constitutional issue is reviewed de novo. Id. "Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id. Additionally, a trial court's decision on a motion for a new trial is reviewed for an abuse of discretion. People v Russell, 297 Mich.App. 707, 715; 825 N.W.2d 623 (2012). An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. Id.
"To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel's performance was below an objective standard of reasonableness and (2) a reasonable probability exists that the outcome of the proceeding would have been different but for trial counsel's errors." People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018) (quotation marks and citation omitted; alteration removed). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018). An isolated error by defense counsel "must be assessed in relation to counsel's overall performance," and the error may form the basis to prove the ineffective assistance of counsel only if it is "sufficiently egregious and prejudicial." People v Reed, 449 Mich. 375, 393 n 14; 535 N.W.2d 496 (1995) (quotation marks and citations omitted).
Defendant alleges that trial counsel should have objected to the admission of defendant's statement under MRE 403, MRE 404(b), and MRE 609 because it was irrelevant and had no probative value other than to unfairly prejudice defendant and mislead the jury. This Court has explained that failing to object may be a matter of trial strategy because "there are times when it is better not to object and draw attention to an improper comment." People v Unger (On Remand), 278 Mich.App. 210, 242; 749 N.W.2d 272 (2008) (quotation marks and citation omitted). Nonetheless, given the nature of defendant's statement, it cannot be said that the trial court clearly erred by finding defense counsel's failure to object fell below an objective standard of reasonableness. Armstrong, 409 Mich. at 289.
Regardless of trial counsel's deficient performance, defendant has not carried his burden of establishing that it was more probable than not that the isolated error affected the outcome of the trial. Defendant's statement regarding jail time was brief, barely discernable, and neither of the parties mentioned it in closing argument. Conversely, there was strong evidence of defendant's guilt. Dell testified that defendant asked someone for a gun, that he saw defendant pointing a gun in the air, and that he heard two gunshots. Two other witnesses testified that they heard a noise that sounded like a gunshot. Dell also testified that defendant threatened him in a phone call after the fight and sent an ominous text message. Moreover, defendant texted Dell an apology and offered to pay any costs associated with the replacement of Dell's clothing. In light of the evidence, we cannot say that there is a reasonable probability that the outcome of the trial would have been different if defendant's statement about jail time would have been excluded. Trial counsel's deficient performance did not prejudice defendant. Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L ed 2d 674 (1984) (finding "[u]nless a defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable."). Accordingly, we conclude that the trial court did not abuse its discretion in denying defendant a new trial on this issue.
III. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor improperly introduced false evidence that defendant had served jail time, which warrants reversal of his conviction and a new trial. We disagree.
A prosecutor may not knowingly use false evidence to obtain a conviction and may not allow false testimony to go uncorrected. People v Smith, 498 Mich. 466, 475-476; 870 N.W.2d 299 (2015). However, to preserve an issue of prosecutorial misconduct, the defendant must contemporaneously object to the purported misconduct and request a curative instruction. Unger, 278 Mich.App. at 235. Because defendant did not object to the admission of his statement or request a curative instruction, we review the matter for plain error affecting defendant's substantial rights. People v Clark, 330 Mich.App. 392, 433; 948 N.W.2d 604 (2019). A defendant is not entitled to relief under plain-error review unless he or she can establish: (1) an error occurred; (2) the error was plain, i.e., "clear or obvious"; and (3) the plain error affected substantial rights, i.e., the defendant was prejudiced because the error affected the outcome of the proceedings. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). "Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Bennett, 290 Mich.App. 465, 475-476; 802 N.W.2d 627 (2010) (quotation marks and citation omitted).
The prosecutor maintained that, at the time of trial, she did not know that defendant's statement was false. While the prosecutor acknowledged that she was aware that defendant did not have any prior convictions, she contended that she had no knowledge of whether defendant had ever been arrested or spent time in jail. But she admitted that she made no effort to verify the information. She maintained that she thought defendant was simply bolstering to show that he was not afraid. However, the prosecutor did not attempt to capitalize on defendant's statement during her closing argument. On this record, it cannot be said that the trial court clearly erred by finding that the prosecutor's failure to verify the truth of defendant's statement did not rise to the level of misconduct.
Even if the admission of defendant's statement rose to the level of prosecutorial misconduct, defendant is not entitled to a new trial because the misconduct did not affect defendant's substantial rights by affecting the outcome of his trial. Carines, 460 Mich. at 764. As discussed in the analysis of defendant's ineffective assistance of counsel argument, there was strong evidence of defendant's guilt. The weight of the testimony and evidence was such that any prejudice caused by the admission of defendant's statement could not have affected the outcome at trial. Thus, the prosecutor's admission of the statement did not amount to plain, outcome-determinative error. See Carines, 460 Mich. at 763. Accordingly, the trial court did not abuse its discretion by denying defendant a new trial on this issue.
IV. CONCLUSION
Defendant failed to demonstrate that he suffered any prejudice as a result of the ineffective assistance of counsel. Likewise, defendant has not identified any prosecutorial misconduct that rose to the level of plain, outcome-determinative error. Consequently, the trial court did not abuse its discretion by denying defendant a new trial on either of these issues. We affirm.