Opinion
364068
09-19-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHELLE RENEE LYON, Defendant-Appellant.
UNPUBLISHED
Ingham Circuit Court LC No. 19-000713-FC
Before: PATEL, P.J., AND YATES and SHAPIRO, [*] JJ.
PER CURIAM.
Defendant was found guilty by a jury of first-degree felony murder, MCL 750.316(1)(b), and armed robbery, MCL 750.529. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to life in prison without the possibility of parole for the murder conviction and 375 to 960 months' imprisonment for the armed-robbery conviction. Defendant appeals as of right, arguing that she was denied her constitutional right to a public trial, that trial counsel was ineffective for failing to call certain witnesses, that the convictions and sentences for both felony murder and the underlying felony of armed robbery violated her protections against double jeopardy, and that her constitutional right to a speedy trial was violated. We reject defendant's speedy-trial, public-trial, and double-jeopardy challenges, but we remand for a Ginther hearing with respect to defendant's claim of ineffective assistance of counsel.
People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).
I. BACKGROUND
This case involves the stabbing of Judy Terry on July 16, 2019, at Terry's apartment building in Lansing. The stabbing resulted in Terry's death. At the time of the homicide, defendant had known Terry for approximately a year and a half. Defendant testified that she had been addicted to crack cocaine for many years and regularly obtained drugs from Terry. In exchange for drugs, defendant would either pay Terry or steal merchandise for her. According to defendant, Terry and her boyfriend used their apartment to sell drugs to many other individuals, not just defendant, and more than 30 people had visited the apartment in the two days before Terry's murder. Defendant periodically lived at the apartment with Terry and Terry's boyfriend. Defendant conceded that she and Terry had been together on the day of the killing. Sometime in the morning, defendant and Terry were driven by an acquaintance to Terry's mother's home for a visit and then to see Terry's probation officer. The acquaintance testified that defendant and Terry became embroiled in a heated argument during the drive. After Terry checked in with her probation officer, defendant and Terry visited a Meijer gas station and then returned to Terry's apartment by hitching a ride with a different, unknown person.
Thereafter, defendant claimed that she briefly left Terry's apartment to pick up "Cigarillos" for Terry and that when she returned to the apartment, defendant observed Terry covered in blood lying on a bed. In support of this view, she relied on her own testimony and the fact that the knife used in committing the murder was tested for DNA and, while DNA was found, it did not match defendant's DNA.
Defendant testified that when she saw Terry on the ground bleeding, she became afraid when she saw Terry move her head. However, rather than summoning the police or medical help, defendant grabbed Terry's purse and ran from the apartment complex. Defendant contended that she snatched the purse because of her addiction to crack cocaine and her knowledge that the purse contained crack. As defendant crossed a street on foot, a vehicle nearly struck her. A passenger in that car testified that he saw two women running across the street-the first woman was holding a purse, and the second woman came to the passenger window of the vehicle and claimed to be hurt. The car's passenger further testified that defendant kept running away while the second woman turned around and headed back toward the apartment complex. The vehicle's passenger and driver then contacted the police. The police arrived in short fashion and subsequently found Terry on the side of her apartment building next to a stairwell. She had multiple stab wounds and no pulse.
According to defendant, she had not known that Terry was behind her until after defendant crossed the street. Defendant testified that she looked behind her and saw Terry going back toward the apartment complex. Nevertheless, defendant kept running in the opposite direction in a heavy rainfall. Video footage from a surveillance camera showed defendant later throwing Terry's purse into some bushes. The police later recovered the purse, which contained documents with Terry's name on them. Terry's boyfriend testified that on that day of the murder, Terry had approximately $2,000 in her purse. The video footage showing defendant disposing of the purse also revealed what appeared to be blood on defendant's shirt. Christopher Scott, defendant's long-time friend, testified that defendant visited his house unannounced with what seemed to be streaks of blood running down the front of her legs, although he did not recall seeing any on her shirt. Defendant told Scott that she had fallen. Defendant asked Scott for a T-shirt, and he provided her with one.
Detective Martha McGonegal, the lead investigator on the homicide case, testified that in her interrogation of defendant, defendant admitted that she had engaged in a physical altercation with Terry in which Terry pulled defendant's hair and defendant pushed Terry. In a search of Terry's apartment, the police discovered a purple bloodstained knife that was believed to be the murder weapon. The search also revealed areas in the apartment with possible bloodstains. Police used a chemical blood reagent that detects traces of blood and identified bloodstains on the T-shirt that Scott gave to defendant. Furthermore, when this chemical was used on defendant herself during one of her police interviews, it produced a strong reaction in relation to defendant's hands, right forearm, and legs. Defendant, however, claimed to have cut herself shaving in the shower. She denied attacking and killing Terry.
The jury found defendant guilty of first-degree felony murder and armed robbery. The trial was conducted with various COVID-19 restrictions in place, such as face masks, plexiglass, and staggered seating. Furthermore, the courtroom appears to have been closed to members of the general public, but the trial court did set up a video livestream that allowed members of the public to view the trial from a separate room in the courthouse. Three members of Terry's family, however, were permitted to observe the trial from inside the courtroom.
II. ANALYSIS
A. THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
Defendant was arrested in 2019, and her trial did not take place until September 2022. In light of the lengthy delay between arrest and trial, defendant argues that she was denied her constitutional right to a speedy trial.
"Whether defendant was denied his right to a speedy trial is an issue of constitutional law, which we . . . review de novo." People v Williams, 475 Mich. 245, 250; 716 N.W.2d 208 (2006). But underlying factual findings are reviewed for clear error. Id; see also People v Waclawki, 286 Mich.App. 634, 664-665; 780 N.W.2d 321 (2009) ("The determination whether a defendant was denied a speedy trial is a mixed question of fact and law."). De novo review "means that we review the issues independently, with no required deference to the trial court." People v Beck, 504 Mich. 605, 618; 939 N.W.2d 213 (2019). On the other hand, clear error only exists when we are "left with a definite and firm conviction that a mistake was made." People v Abbott, 330 Mich.App. 648, 654; 950 N.W.2d 478 (2019). A "[v]iolation of the constitutional right to a speedy trial requires dismissal of the charge with prejudice." Waclawski, 286 Mich.App. at 664.
"Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a speedy trial." People v Waclawki, 286 Mich.App. 634, 665; 780 N.W.2d 321 (2009), citing U.S. Const, Am VI; Const 1963, art 1, § 20; MCL 768.1; MCR 6.004(A). In People v Williams, 475 Mich. 245, 261-262; 716 N.W.2d 208 (2006), our Supreme Court explained:
The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant's arrest. In contrast to the 180-day rule, a defendant's right to a speedy trial is not violated after a fixed number of days.... In determining whether a defendant has been denied the right to a speedy trial, we balance the following four factors: (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.
Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury. Under the . . . test, a presumptively prejudicial delay triggers 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. [Quotation marks and citations omitted.]
With respect to the length of the delay, in this case there is no dispute that the delay between defendant's arrest and her trial was far more than 18 months, thereby making it presumptively prejudicial. Next, in regard to examining the reasons for a delay, the panel in Waclawski, 286 Mich.App. at 666, observed:
In assessing the reasons for delay, this Court must examine whether each period of delay is attributable to the defendant or the prosecution. Unexplained delays are charged against the prosecution. Scheduling delays and docket congestion are also charged against the prosecution. However, [a]lthough delays inherent in the court system, e.g., docket congestion, 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. [Quotation marks and citations omitted.]
A delay due to the complexity of the case and related evidence is deemed a legitimate delay. People v Cain, 238 Mich.App. 95, 113; 605 N.W.2d 28 (1999). Generally, a delay caused by an adjournment sought by a defendant or created by a substitution of defense counsel is attributed to defendant. Id. And delays caused by adjudicating motions filed by a defendant are also charged to the defendant. Id. Delays sought by defense counsel, whether counsel is retained or assigned, are ordinarily attributable to the defendant. Vermont v Brillon, 556 U.S. 81, 90-91; 129 S.Ct. 1283; 173 L.Ed.2d 231 (2009). In People v Smith, ___ Mich.App. ___, ___; ___ NW3d ___ (2024) (Docket No. 362114); slip op at 1, this Court addressed delays attributable to the COVID-19 pandemic, ruling:
The COVID-19 pandemic placed immeasurable, unexpected, and unprecedented stress on our court system. That stress included the suspension of jury trials, the resulting backlog of cases, and the inevitable delays in taking cases to trial. These delays affected everyone who makes up our justice system, but they uniquely affected criminal defendants, especially those incarcerated while awaiting trial. This case, like many others that our Court has confronted since the COVID-19 pandemic, involves a claimed violation of the constitutional right to a speedy trial. Defendant Quatrail Terell Smith was incarcerated for over two and a half years before a jury convicted him of three counts of first-degree murder, along with several firearm possession charges.
We hold that delays caused by the COVID-19 pandemic are not attributable to the prosecution when evaluating a speedy-trial claim. The government simply cannot be faulted for a highly contagious and mutating virus. While the length of the delay in this case creates a presumption of prejudice to Smith, nearly all the delay stemmed from emergency public-health measures taken to limit the spread of
COVID-19, and the delay did not prejudice Smith's ability to defend against the charges. We therefore conclude that Smith's right to a speedy trial was not violated.
In this case, the record is sparse concerning the reasons for many of the delays, especially from 2019 through early 2021. Defendant concedes that much of the delay was due to the COVID-19 pandemic. Under Smith, the pandemic-related delays cannot be attributed to the prosecution. By defendant's calculations, she was incarcerated for 1,155 days, of which 455 days of delay were caused by the COVID-19 pandemic. This left 700 days of delay, according to defendant, that were not due to the COVID-19 pandemic. Defendant summarily contends that, in relation to the 700 days, "the delay is primarily attributed to the prosecution" and that the 700 days were "well enough time to go to trial, especially when the prosecutor had lab reports, police reports, and names &statements from witnesses before March 2020." Apart from such conclusory statements, however, defendant fails to demonstrate how the delays were attributable to the prosecution.
Regardless, the record shows that defendant was not, in fact, ready for trial. Defendant did not submit her notice of an alibi defense until May 2020, and, at a July 2021 pretrial conference, defendant's prospective expert witness was still reviewing information obtained from the prosecution. The trial court discussed delaying the trial until 2022, and trial counsel and defendant agreed to this delay because of the need for additional preparation. In early 2022, defendant submitted a notice of expert testimony and later stipulated to an adjournment of the trial until September 2022 because her expert was unavailable for the previously-scheduled trial date. Accordingly, the delays outside those caused by the pandemic were not solely attributable to the prosecution.
With respect to the third factor, defendant argues that she timely asserted her right to a speedy trial. In support, she submits a document entitled, "September 2019 Demand for Speedy Trial," which is dated July 22, 2019. This document appears to have been sent from defendant's trial counsel to the prosecutor's office, and, among a litany of demands, it demanded a speedy trial. Therefore, assuming this document is part of the record, it weighs in defendant's favor.
Finally, with respect to the issue of prejudice, there are two types of prejudice-prejudice to the defense and prejudice to the person. Waclawski, 286 Mich.App. at 668. "Prejudice to the defense is the more serious concern, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Williams, 475 Mich. at 264 (quotation marks and citations omitted). "Our Supreme Court has repeatedly recognized in the context of lengthy pretrial incarcerations that the most significant concern is whether the defendant's ability to defend himself or herself has been prejudiced." Waclawski, 286 Mich.App. at 668-669 (quotation marks and citation omitted). A generalized allegation of prejudice caused by a delay, such as the unspecified loss of evidence or fading of memories, is insufficient to establish that a defendant was denied his right to a speedy trial. People v Gilmore, 222 Mich.App. 442, 462; 564 N.W.2d 158 (1997). Increased anxiety alone does not suffice. Id. "[I]n determining prejudice to a defendant, we do not look at how the prosecutor's case was improved during the delay, but to whether the defendant's defense was degraded." People v Holtzer, 255 Mich.App. 478, 494; 660 N.W.2d 405 (2003).
In this case, defendant has failed to show any prejudice to her defense. Apart from listing her anxiety, emotional concerns, stricter incarceration conditions related to the COVID-19 pandemic, and exposure to COVID-19-all matters of personal prejudice, she fails to present any argument whatsoever concerning how her defense was affected. Defendant fails to demonstrate any prejudice to her defense. Accordingly, after weighing the four factors, we conclude that the prosecution has successfully rebutted the presumption of prejudice based on the length of the delay. In sum, we hold that defendant has failed to show an infringement of her constitutional right to a speedy trial.
B. CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL
Defendant argues that she was deprived of her constitutional right to a public trial. We note that the denial of the right to a public trial constitutes structural error. People v Vaughn, 491 Mich. 642, 666-667; 821 N.W.2d 288 (2012). Defendant's eight-day trial took place in September 2022. The parties do not dispute that the courtroom during defendant's trial was set up in a manner to accommodate the COVID-19 pandemic. At the outset of the first day of trial, the trial court described, in part, the arrangement of the courtroom:
I think maybe you [the prosecutor] have not tried a case with me since we . . . went into this wonderful set-up we have in the courtroom where you are basically sitting almost in the hall. And the jurors, we have moved-actually since Mr. Watson [defense counsel] was here trying a case, we have moved the seats in what I call the outfield, the juror seats up a little bit so they are a little bit closer to all of us in this area in front of the bench.
Additionally, the trial court indicated that the trial was "being broadcast downstairs," and the court later observed that the trial was being "stream[ed]" to a "viewing room." The seating left available in the courtroom was severely limited, and it appears that while the trial court permitted some members of Terry's family to sit in the courtroom, the courtroom was otherwise effectively closed to the general public. At one point during the trial, the prosecutor stated, "I do understand that there may be some people that will be watching from the media room, so if we could make sure that gets hooked up." A law clerk responded that the matter would be handled. Accordingly, it does appear that some individuals could not access the courtroom and had to observe the trial from the media or viewing room.
The trial court stated on the record that one of the court's staff members had contracted COVID-19 while on vacation, thereby necessitating other court staff members to assist with the trial. Further, the prosecutor informed the trial court that she had been exposed to COVID-19 through her child; however, the prosecutor had recently received a "booster shot," tested negative the night before trial, and was "feeling fine." There was also a discussion regarding a witness who, by stipulation, would testify by Zoom because the witness was incarcerated at the Alger Correctional Facility where there was a lockdown due to a COVID-19 outbreak. There is no indication that the COVID-19 restrictions were implemented at trial because the staff member and the prosecutor's child had COVID-19, nor did the restrictions have anything to do with the situation at the correctional facility. Rather, the trial court was apparently operating under a local administrative order, C30 2021-06J / P33 2021-04J, dated June 9, 2021, which order was titled as a Phase Three Plan to Return to Full Capacity. This order was issued more than 15 months before trial, and § C(2) of the order provided that "[a] separate viewing area will be available for those who cannot be accommodated in the courtroom." There does not appear to be any dispute that Ingham County experienced a spike in COVID-19 cases in September 2022. We note that by order dated July 26, 2021, our Supreme Court repealed or rescinded any remaining COVID-related administrative orders pertinent to courtroom closures and procedures. See ADM File No. 2020-8.
We take judicial notice of the administrative order. See MRE 201; Precise MRI of Mich, LLC v State Auto Ins Co, 340 Mich.App. 269, 281 n 5; 985 N.W.2d 892 (2022) ("This Court may take judicial notice of public records."). We note that at the final pretrial conference held on September 1, 2022, the trial court remarked: "We are, for better or for worse, still set up in a COVID set-up in the courtroom." The court also commented at the hearing that "[i]t's not ideal where everyone is located, but we adapt."
Initially, the prosecution argues that defendant waived her claim that there was an infringement of her constitutional right to a public trial. In People v King, 512 Mich. 1, 9-10; 999 N.W.2d 670 (2023), our Supreme Court explained:
The United States Supreme Court has made clear that waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. A waiver extinguishes the right, as well as any right to pursue an alleged error on appeal.... One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.... On the other hand, when a litigant fails to timely assert a right or object to an alleged error, it is deemed to be forfeited, but the error is not extinguished. Notably, preserved structural errors are a limited class of constitutional errors that are not subject to harmless-error analysis, but are instead subject to automatic reversal.
As properly recognized by the Court of Appeals, unpreserved constitutional errors, including structural errors, are reviewed for plain error affecting substantial rights. This Court recently modified the . . . "plain error" test as applied to unpreserved structural errors in People v Davis, 509 Mich. 52, 67-68; 983 N.W.2d 325 (2022). In addressing the third prong, also known as the prejudice prong, the Davis Court held that a forfeited structural error creates a formal presumption that this prong of the plain-error standard has been satisfied. The formal rebuttable presumption in cases of forfeited structural error shifts the burden to the prosecutor to demonstrate that the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceeding. In such instances, the prosecutor must present specific facts that affirmatively demonstrate that, despite the error, the overall fairness, integrity, and reputation of the trial court proceedings were preserved. [Quotation marks, citations, alteration brackets, and ellipses omitted.]
In this case, the lower court record presents a close call regarding whether defendant waived or forfeited the issue concerning an alleged public-trial deprivation. We shall proceed on the assumption that defendant forfeited and did not waive her argument that she was denied her constitutional right to a public trial. Accordingly, we apply plain-error analysis in the context of a possible structural error.
In order to obtain relief on a forfeited claim of constitutional error, a defendant must prove that (1) error occurred, (2) the error "was plain, i.e., clear or obvious," and (3) "the plain error affected substantial rights." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. Further, "[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks, citation, and alteration brackets omitted). However, the existence of a forfeited structural error automatically satisfies the third prong of the plain-error standard, relieving a defendant of the need to demonstrate the occurrence of outcomedeterminative prejudice. Davis, 509 Mich. at 74. As indicated in King, the Davis Court further ruled that with respect to the fourth prong of the plain-error test, i.e., whether the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings, there is a formal presumption that the prong has been satisfied when structural error occurs. Id. at 75. "Given th[e] conceptual overlap between the third and fourth prongs of the plain-error standard and that a forfeited structural error automatically satisfies the third prong of the plain-error standard, a forfeited structural error is very likely to also satisfy the fourth prong of the plain-error test." Id. at 75-76.
"The Sixth Amendment right to a public trial is incorporated to the states by the Due Process Clause of the Fourteenth Amendment." Vaughn, 491 Mich. at 650. "Both the United States Constitution and the Michigan Constitution guarantee a criminal defendant the right to a public trial. U.S. Const, Am VI; Const 1963, art 1, § 20." Davis, 509 Mich. at 66. The public-trial requirement is for an accused's benefit, allowing the public to see that he or she has received fair treatment and has not been unjustly condemned. Id. The presence of interested spectators may keep jurors keenly attuned to a sense of responsibility and to the importance of their functions. Id. "The public-trial right also helps ensure that judges and prosecutors fulfill their duties ethically, encourages witnesses to come forward, and discourages perjury." Id. "Despite serving these important interests, the public-trial right is not unlimited, and circumstances may exist that warrant the closure of a courtroom during any stage of a criminal proceeding." Id. "In order to justify a courtroom closure, there must be an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id. at 66-67 (quotation marks and citations omitted). As gleaned from this quoted language, the Davis Court made clear that all of the factors or elements set forth by the Court must be satisfied in order to avoid a deprivation of a defendant's right to a public trial; they are not alternative considerations. Therefore, absent a demonstration that there existed an overriding interest justifying the closure of a courtroom, the analysis ends, without the need to examine the broadness of a closure or the imposition of reasonable alternatives.
In Waller v Georgia, 467 U.S. 39, 44-45; 104 S.Ct. 2210; 81 L.Ed.2d 31 (1984), the United States Supreme Court addressed a defendant's constitutional right to a public trial under U.S. Const, Am VI:
This Court has not recently considered the extent of the accused's right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected....
In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care....
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. [Quotation marks and citations omitted.]
Under Davis and Waller, the first step in the analysis is to determine whether the trial court articulated an overriding interest essential to the preservation of higher values. Because members of Terry's family were allowed to watch the proceedings from inside the courtroom, one could argue that this case concerns a partial closure of the courtroom to the public, not a full closure. In People v Russell, 297 Mich.App. 707, 720; 825 N.W.2d 623 (2012), this Court stated that "[a] defendant has the right to a public trial, which includes the right to have the courtroom open to the public . . .[;][h]owever, the effect of a partial closure of trial does not reach the level of a total closure and only a substantial, rather than a compelling reason for the closure is required." That said, we tend to believe that there was an inadequate showing of an overriding, compelling, or substantial reason for the trial court to have partially or fully closed the courtroom due to COVID-19.
The prosecution does make the argument that "the courtroom was not even locked down" and that "[a]nyone could enter." The effect, however, of the trial court's reconfiguration of the courtroom resulted in a substantial reduction of available seating, which was used by Terry's family members. We agree with the somewhat analogical sentiments expressed in United States v Smith, 426 F.3d 567, 571 (CA 2, 2005):
We believe the district court erred in assuming that a defendant's Sixth Amendment rights cannot be violated unless a court itself restricts courtroom access. First, although cases involving the right to a public trial commonly arise in the context of courts entering formal closure orders, we believe that measures that limit the public's access to federal buildings with courtrooms where public trials may be occurring implicate Sixth Amendment concerns.In this case, although the court apparently did not lock down the courtroom, the court itself effectively restricted access to the courtroom by taking measures that directed the general public to the separate viewing room.
But see our Supreme Court's early decision in People v Yeager, 113 Mich. 228, 230; 71 N.W. 491 (1897), which might be read to suggest otherwise.
COVID-19 vaccines have been widely available to the general public since the spring of 2021. And as noted earlier, by order dated July 26, 2021, the Michigan Supreme Court repealed or rescinded any remaining COVID-related administrative orders pertinent to courtroom closures and procedures. See ADM File No. 2020-8. To the extent that the two anecdotal accounts of COVID-19 discussed on the record and the COVID-related prison lockdown in a different county had any bearing on the closure, those reasons were insufficient to demonstrate an overriding, compelling, or substantial interest that needed protection. And even if the trial court was acting consistently with a local administrative order, the order could not overcome an actual constitutional deficiency.
See, A Timeline of COVID-19 Vaccine Developments in 2021, American Journal of Managed Care (June 3, 2021), available at <https://ajmc.com/view/a-timeline-of-covid-19-vaccinedevelopments-in-2021 > (accessed August 31, 2024).
In Administrative Order 2020-6, which has since been rescinded, our Supreme Court declared that procedures implemented as a result of COVID-19 "must be consistent with a party's Constitutional rights[.]"
Although we believe that the trial court erred by closing the courtroom, we cannot conclude that the court's decision constituted "plain" error. Once again, under plain-error analysis, the error must of course be "plain," meaning that the error has to be "clear or obvious." Carines, 460 Mich. at 763. The trial court articulated that COVID-19 was the reason for reconfiguring and rearranging the courtroom such that the courtroom was partially or wholly closed to the general public. As noted earlier, there was a local spike in COVID-19 cases at the time of trial. The silence of all involved before, at the start of, and during the trial in reaction to the COVID-19 protections imposed by the trial court belies any assertion that it was clear or obvious that the court was making a mistake of constitutional magnitude. There is nothing in the record suggesting that the trial court acted with any kind of nefarious intent; rather, the court engaged in a good-faith effort to safeguard the health of the trial's participants and of the general public during what could be fairly characterized as a "grey" period toward the end of the pandemic. We simply cannot find that it was clear or obvious that the trial court erred by closing the courtroom on the basis that COVID-19 required the move.
Moreover, we conclude that the closure was no broader than necessary to protect against the health threat posed by COVID-19 and that livestreaming video and audio of the trial to the viewing room in the courthouse was a reasonable alternative. In United States v Allen, 34 F4th 789, 792-793 (CA 9, 2022), the Ninth Circuit for the United States Court of Appeals found a violation of the defendant's constitutional right to a public trial where the trial court closed the courtroom and allowed an audio feed but did not employ livestreaming. The Ninth Circuit observed:
In determining whether the district court erred in not adopting less restrictive alternatives here, we begin by considering the policies adopted by other jurisdictions to address COVID issues. In this context, we consider video streaming to be a less restrictive alternative to audio streaming, because the core of the defendant's Sixth Amendment right is to have his trial open for public attendance and observation.
Our review of other jurisdictions reveals that the district court's order was "truly exceptional." During the pandemic, federal trial courts throughout the country addressed the same issue as the district court here. These courts (including courts that held trials in late 2020, when the district court held Allen's trial) consistently allowed some form of visual access to the trial, either by allowing the public to view a live video feed of the trial in a separate room in the courthouse, or by allowing a limited number of spectators to be present in the courtroom. [Id. at 798 (citations omitted); see also United States v Hunt, 82 F4th 129, 141 (CA 2, 2023).]
In this case, livestreaming was a reasonable, narrowly-tailored alternative to safeguard the integrity of the judicial process and to secure the protections afforded by the constitutional right to a public trial.
We do recognize that the jury and witnesses were not made aware that viewers might be watching the trial from another room in the courthouse viz-a-viz livestreaming. As noted earlier, the presence of interested spectators may keep jurors and others keenly attuned to a sense of responsibility and to the importance of their functions. Davis, 509 Mich. at 66. This goal might not be accomplished if witnesses and jurors are unaware of spectators. But, in this case, there were known spectators in the courtroom, Terry's family members; the fact that there were additional spectators added little to nothing with respect to keeping the jury and witnesses keenly attuned to a sense of responsibility and to the importance of their functions. On this issue, we believe that the presence of Terry's family members sufficed to protect defendant's constitutional right to a public trial. In sum, we hold that the trial court did not commit "plain" error with regard to defendant's argument that she was deprived of her right to a public trial.
Finally, defendant argues, in the alternative, that trial counsel was ineffective for failing to object to the closure of the courtroom. Assuming that counsel's performance was deficient, defendant cannot establish prejudice because it is patently clear that the trial court would still have closed the courtroom in the face of an objection and because there is no reasonable probability that, but for counsel's presumed error, the result of the proceeding would have been different. See People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001).
C. DOUBLE JEOPARDY
Defendant argues that her convictions for both felony murder and armed robbery, which was the predicate felony for purposes of the murder conviction, violated the prohibition against double jeopardy. Defendant maintains that our Supreme Court's ruling in People v Ream, 481 Mich. 223; 750 N.W.2d 536 (2008), which undermines defendant's double jeopardy argument, was wrongly decided. In Ream, id. at 225-226, our Supreme Court stated and held:
At issue here is whether convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the "multiple punishments" strand of the Double Jeopardy Clause of the United States and Michigan constitutions. Following a jury trial, defendant was convicted and sentenced for first-degree felony murder and first-degree criminal sexual conduct, where the latter constituted the predicate felony for the former. The Court of Appeals affirmed defendant's first-degree felony-murder conviction and sentence, but vacated defendant's first-degree criminal sexual conduct conviction and sentence on double-jeopardy grounds. We conclude that convicting and sentencing a defendant for both felony murder and the predicate felony does not necessarily violate the "multiple punishments" strand of the Double Jeopardy Clause, and, thus, we overrule People v Wilder, 411 Mich. 328, 342; 308 N.W.2d 112 (1981). Because each of the offenses for which defendant was convicted has an element that the other does not, they are not the "same offense" and, therefore, defendant may be punished for both. Accordingly, we reverse the part of the Court of Appeals judgment that vacated defendant's first-degree criminal sexual conduct conviction and sentence, and we reinstate them.
Felony murder requires the killing of a human being, People v Beck, 510 Mich. 1, 31 n 17; 987 N.W.2d 1 (2022), which is not an element of armed robbery, and armed robbery requires the felonious taking of property while armed, People v Henry (After Remand), 305 Mich.App. 127, 142-143; 854 N.W.2d 114 (2014), which is not an element of felony murder. Accordingly, each of defendant's two offenses contain an element that the other does not; therefore, the multiplepunishments strand of the Double Jeopardy Clause was not implicated. We also note that the Supreme Court in People v Smith, 478 Mich. 292, 319; 733 N.W.2d 351 (2007), specifically held, for the reasons we just expressed, that a defendant can be convicted of both armed robbery and felony murder-with the predicate felony being armed robbery-without offending double jeopardy protections. Although defendant argues that Ream was wrongly decided, we are bound to follow Ream, as well as Smith, because it is binding precedent from our Supreme Court. See People v Harverson, 291 Mich.App. 171, 182; 804 N.W.2d 757 (2010). Reversal is unwarranted.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that trial counsel was ineffective for failing to call three potential witnesses at trial who could have provided testimony suggesting someone other than defendant may have committed the murder. We conclude that this argument merits a remand for a Ginther hearing. The three individuals resided at Terry's apartment complex and were interviewed by the police. One of persons also wrote a letter that defendant attached to her brief on appeal. The letter and videos of the three interviews are not part of the record. As offers of proof, defendant did attach the videotaped interviews to a motion to remand filed with this Court. See MCR 7.211(C)(1)(a). The motion panel denied the motion, but without prejudice to the case call panel making its own determination that remand is necessary to properly resolve the appeal. People v Lyon, unpublished order of the Court of Appeals, entered March 7, 2024 (Docket 364068).
We have reviewed the police interviews and the letter. All three of the individuals, two of whom lived together, stated that Terry was a known crack dealer and that there was a lot of traffic in and out of her apartment, as many as 40 people a day. All three also stated that they noticed an unfamiliar black sedan parked in the complex's lot shortly before the murder, one person noting that it was in a spot often used by visitors to Terry's apartment. Two of the prospective witnesses also recalled that they had gone to pick up a pizza around 5:25 p.m., just a couple of minutes before the estimated time of the murder, and that when they returned about 20 minutes later the black car was gone and the police were there. One of these two individuals also recalled that when he left their apartment that day, he saw Terry outside talking on the phone and speaking in an angry upset tone. The third neighbor stated that close to the date of the murder she was outside of her apartment when she was approached by a woman who had visited Terry's apartment in the past and that this woman thrust a barbecue fork in her direction, threatening to kill her. None of these statements standing alone would be sufficient to trigger a need for a Ginther hearing. But all three statements taken together do suggest that further investigation by counsel may have yielded exculpatory evidence, particularly in the context of the fact that the DNA found on the handle of the murder weapon was neither Terry's nor defendant's DNA.
While defendant did not present affidavits from the three prospective witnesses, if these individuals were called to testify at a Ginther hearing, defendant would be able to use the police interviews to challenge any deviations in their statements to the police.
As part of the analysis of a claim of ineffective assistance of counsel, it must be determined whether strategic choices were made after less than complete investigation, and any choice was reasonable precisely to the extent that reasonable professional judgments supported the limitations on investigation. People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). We remand for a Ginther hearing to allow defendant the opportunity to offer testimony from the three witnesses, to question trial counsel regarding why these persons were not called as witnesses, and for defendant to argue to the trial court that a new trial is warranted on the basis of ineffective assistance of counsel.
III. CONCLUSION
We reject defendant's speedy-trial, public-trial, and double-jeopardy challenges, but we remand for a Ginther hearing with respect to defendant's claim of ineffective assistance of counsel.
Remanded. We retain jurisdiction.
LC No. 19-000713-FC
Sima G. Patel Presiding Judge Christopher P. Yates Douglas B. Shapiro Judges
ORDER
For the reasons stated in the opinion issued with this order, we REMAND this case for further proceedings. We retain jurisdiction. After the remand proceedings conclude, we will review the decisions that the trial court made during those proceedings and consider any remaining issues in this appeal. Any challenges to the trial court's decisions on remand must be raised in this appeal. Therefore, the parties and the trial court must not initiate a new appeal from an order entered on remand within the scope of this appeal. The Clerk of the Court is directed to reject the initiation of a new appeal from such an order.
Appellant must initiate the proceedings on remand within 21 days of the Clerk's certification of this order, and the trial court must prioritize this matter until the proceedings are concluded. As stated in the accompanying opinion, the trial court shall conduct a Ginther hearing and determine whether defendant was denied the effective assistance of counsel. The proceedings on remand are limited to this issue.
The parties must serve copies of their filings in the trial court on this Court. Appellant must file with this Court copies of all orders entered on remand within seven days of entry.
Appellant must ensure the transcript of all proceedings on remand is filed in the trial court and this Court within 21 days after completion of the proceedings.
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.