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holding that a substitution of counsel "would have unreasonably delayed the judicial process" where the defendant "waited until the day of trial to request new counsel" [t]he jury and witnesses were present, and the prosecutor and defense counsel were ready to proceed."
Summary of this case from People v. NelsonOpinion
Submitted July 13, 2011, at Detroit. [Copyrighted Material Omitted]
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jason W. Williams, Assistant Prosecuting Attorney, for the people.
Jonathon B.D. Simon, for defendant.
Before: TALBOT, P.J., and HOEKSTRA and GLEICHER, JJ.
TALBOT, P.J.
Jerome Strickland challenges his jury trial convictions of first-degree home invasion, assault with intent to do great bodily harm less than murder, being a felon in possession of a firearm, felonious assault, and possession of a firearm during the commission of a felony. Strickland was sentenced as a fourth-offense habitual offender to concurrent prison terms of 320 months to 60 years for the first-degree home invasion conviction, 2 to 20 years for the conviction of assault with intent to do great bodily harm less than murder, two to five years for the felon-in-possession conviction, and 2 to 15 years for the felonious assault conviction, to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. We affirm.
MCL 750.224f.
MCL 750.82.
Strickland was convicted of breaking into the home of a senior couple, Arlis and Vera Clarkson, during which 70-year-old Arlis armed himself with a gun after realizing the possibility of an intruder. The prosecution alleged that while Strickland was assaulting Arlis, he jointly possessed Arlis's firearm when he placed both hands on the gun as he attempted to take it from Arlis. The gun discharged three times during the struggle, and Arlis was shot in the hand. Strickland conceded at trial that he invaded the Clarksons' home, but argued that he never possessed Arlis's gun.
I. APPOINTMENT OF NEW COUNSEL
Strickland first argues that the trial court abused its discretion by denying his request for new counsel made on the first day of trial. We disagree.
" A trial court's decision regarding substitution of counsel will not be disturbed absent an abuse of discretion." " A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." As this Court has explained:
People v. Traylor, 245 Mich.App. 460, 462, 628 N.W.2d 120 (2001).
People v. Yost, 278 Mich.App. 341, 379, 749 N.W.2d 753 (2008).
" 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."
Traylor, 245 Mich.App. at 462, 628 N.W.2d 120, quoting People v. Mack, 190 Mich.App. 7, 14, 475 N.W.2d 830 (1991).
Initially, we reject Strickland's claim that the trial court failed to adequately inquire into the nature of the breakdown of the attorney-client relationship. " When a defendant asserts that the defendant's assigned attorney is not adequate or diligent, or is disinterested, the trial court should hear the defendant's claim and, if there is a factual dispute, take testimony and state its findings and conclusion on the record." Because the trial court accepted a copy of the grievance that Strickland had filed against his attorney and gave him an opportunity to " say whatever he wants to say" on the record about counsel's alleged inadequacies, the trial court was aware of Strickland's complaints regarding appointed counsel.
People v. Bauder, 269 Mich.App. 174, 193, 712 N.W.2d 506 (2005).
Further, neither Strickland's complaints nor his filing of a grievance established good cause for the appointment of new counsel. A mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason, does not amount to adequate cause. Likewise, a defendant's general unhappiness with counsel's representation is insufficient. Strickland stated that he was dissatisfied because counsel provided " no details, no challenges against the evidence," gave Strickland " nothing to work with," and did not visit him in jail. Upon inquiry by the trial court, however, counsel explained that he had recently met with Strickland at the jail to explain the prosecution's plea offer, thereby refuting the lack-of-contact claim. Strickland's remaining complaints lacked specificity and did not involve a difference of opinion with regard to a fundamental trial tactic. Counsel's decisions about defense strategy, including what evidence to present and what arguments to make, are matters of trial strategy, and disagreements with regard to trial strategy or professional judgment do not warrant appointment of substitute counsel.
People v. Otler, 51 Mich.App. 256, 258-259, 214 N.W.2d 727 (1974).
See, e.g., Traylor, 245 Mich.App. at 463, 628 N.W.2d 120 (noting that a defendant's filing of a grievance against his counsel is insufficient alone to warrant new counsel).
People v. Rockey, 237 Mich.App. 74, 76, 601 N.W.2d 887 (1999).
Traylor, 245 Mich.App. at 463-464, 628 N.W.2d 120.
In addition to the matters mentioned in the trial court, Strickland adds on appeal that counsel failed to file any pretrial motions to dispose of the assault and firearm charges. Strickland does not indicate what motions should have been filed or explain how they would have been successful. Counsel was not required to file a futile motion. Any failure by counsel in this regard did not establish good cause for substitution of counsel.
See People v. Snider, 239 Mich.App. 393, 425, 608 N.W.2d 502 (2000).
Finally, Strickland waited until the day of trial to request new counsel. The jury and witnesses were present, and the prosecutor and defense counsel were ready to proceed. A substitution of counsel at that point would have unreasonably delayed the judicial process. Although Strickland claimed to have made the request one month earlier, the record does not support that claim. Consequently, the trial court did not abuse its discretion by denying his untimely request for a new attorney.
Traylor, 245 Mich.App. at 462, 628 N.W.2d 120.
II. SUFFICIENCY OF THE EVIDENCE
Strickland argues that he never possessed a weapon, so the evidence was insufficient to support the firearm and dangerous-weapon elements of the offenses of assault with intent to do great bodily harm less than murder, felonious assault, felon-in-possession, and felony-firearm. We disagree.
In ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court " must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." " [A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the [trier of fact's] verdict."
People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992).
People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000).
We first note that, Strickland's sufficiency challenge to his conviction of assault with intent to do great bodily harm less than murder is without merit. His conviction for assault with intent to do great bodily harm less than murder did not rely on the factual question of whether he possessed a firearm, and possession of a firearm or a dangerous weapon is not a necessary element of that offense. Viewed in a light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to reasonably infer that Strickland assaulted Arlis with the intent to do great bodily harm less than murder by repeatedly striking the 70-year-old victim in the head and face while pinning his hands to his chest and struggling with him over possession of the firearm.
People v. Parcha, 227 Mich.App. 236, 239, 575 N.W.2d 316 (1997).
With regard to the remaining convictions, possession is a question of fact for the trier of fact and can be proved by circumstantial evidence and reasonable inferences arising from the evidence. Possession of a firearm may be sole or joint; thus dominion or control over the object need not be exclusive. The essential question is one of control.
People v. Hill, 433 Mich. 464, 469, 446 N.W.2d 140 (1989); People v. Truong (After Remand), 218 Mich.App. 325, 337, 553 N.W.2d 692 (1996).
Hill, 433 Mich. at 470, 446 N.W.2d 140; cf. People v. Konrad, 449 Mich. 263, 271, 536 N.W.2d 517 (1995).
See Hill, 433 Mich. at 470-471, 446 N.W.2d 140; Konrad, 449 Mich. at 271, 536 N.W.2d 517.
Strickland invaded the Clarksons' home and discovered that Arlis had armed himself with a gun. Arlis testified that Strickland immediately attacked him and attempted to take the gun. During the struggle, Strickland had both of his hands on the gun, repeatedly tried to take it away, and directed Arlis to " give it up." Strickland nearly managed to completely wrest control of the gun away from Arlis a couple of times. As Strickland attempted to gain sole possession of the gun, it discharged and Arlis was shot.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to reasonably infer that Strickland possessed the gun jointly with Arlis during the assault. Although Strickland provides an alternative view of the evidence, it was up to the trier of fact to evaluate the evidence and, for purposes of resolving Strickland's sufficiency challenge, this Court is required to view the evidence in a light most favorable to the prosecution. There was sufficient evidence of possession to support defendant's convictions.
Wolfe, 440 Mich. at 515, 489 N.W.2d 748.
III. DOUBLE JEOPARDY
Strickland lastly argues that his dual convictions and sentences for both assault with intent to do great bodily harm less than murder and felonious assault violate his double jeopardy right not to be subjected to more punishment than the Legislature intended. Because this issue was not raised below, our review is limited to plain error affecting substantial rights.
People v. Carines, 460 Mich. 750, 752-753, 763-764, 597 N.W.2d 130 (1999).
The validity of multiple punishments under the double jeopardy provisions of the United States and Michigan Constitutions is generally determined under the " same-elements test," which requires the reviewing court to determine " ‘ whether each provision requires proof of a fact which the other does not.’ " Our Supreme Court has determined that convictions of both assault with intent to do great bodily harm less than murder and felonious assault do not violate the constitutional double jeopardy protections because the two crimes have different elements. This Court is bound to follow decisions of our Supreme Court. Accordingly, Strickland has failed to demonstrate error.
People v. Smith, 478 Mich. 292, 305, 315-316, 733 N.W.2d 351 (2007) quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
People v. Strawther, 480 Mich. 900, 739 N.W.2d 82 (2007).
People v. Hall, 249 Mich.App. 262, 270, 643 N.W.2d 253 (2002).
Affirmed.
HOEKSTRA and GLEICHER, JJ., concurred with TALBOT, P.J.