KIRSTEN FRANK KELLY, P.J.
Defendant appeals as of right his jury trial convictions of assault with intent to do great bodily harm less than murder, MCL 750.84, and reckless driving causing serious impairment of a body function, MCL 257.626. Defendant was sentenced to 19 to 120 months' imprisonment for his assault with intent to do great bodily harm less than murder conviction and 5 to 60 months' imprisonment for his reckless driving causing serious impairment of a body function conviction. We previously entered an order granting defendant's motion to remand so that
The trial court held a Ginther
The victim, Deshun Battle, and an associate of the victim, Dijon Deal, went to defendant's hotel room, seeking the return of Deal's laptop computer. After defendant had failed to emerge from the hotel room to return the computer, Battle observed a computer in defendant's truck and pointed it out to Deal. Deal grabbed a crowbar and began applying the crowbar against the window of defendant's truck, as if to break the window. Defendant came out to the parking lot and indicated that he would retrieve the computer. At that point, Battle decided that he did not want anything more to do with the situation. Battle got into his own vehicle, drove it around a corner and parked it in order to fix his speakers. Instead of retrieving
The jury convicted defendant of assault with intent to do great bodily harm less than murder and reckless driving causing serious impairment of a body function. Defendant appealed his convictions and we granted his motion to remand for a Ginther hearing on defendant's claim that defense counsel was ineffective for failing to investigate and call a key witness and for failing to object to the closing of the courtroom during voir dire.
At the Ginther hearing defendant's girlfriend, Kiesha Yates, testified that she was with defendant at the hotel. She heard loud noises outside their hotel room and saw two men banging on defendant's truck, one with a crowbar, and one with a "shiny metal thing." Defendant then exited the room. Yates saw defendant get into his truck and drive off. She testified that the two men had chased after defendant's vehicle with objects in their hands. Yates gave the police a written statement at the scene; however, she was not contacted by defense counsel David Lankford.
Defendant testified that during trial preparation he told Lankford that Yates was with him at the time of this incident and wished to have her called as a witness. Lankford told defendant that he did not feel comfortable calling civilian witnesses.
Lankford testified that he was aware of Yates and another woman being witnesses to this incident. Lankford never talked to Yates or the other woman personally; however, he did review Yates's police statement. Lankford believed that Yates's statement that two men had chased defendant's vehicle was inconsistent with and contradictory to his theory of the case that Battle was hit with the front of defendant's vehicle. Lankford assumed that the two men Yates referred to in her statement were Battle and Deal.
The trial court ruled as follows:
The trial court rejected defendant's claim that the courtroom had been closed during jury voir dire and declined to grant relief on that basis.
The matter is now before us after remand.
From the outset, we reject the prosecution's argument that the trial court's order granting defendant a new trial exceeded the scope of this Court's remand order.
When an appellate court remands a case with specific instructions, it is improper for a lower court to exceed the scope of the order. K & K Constr., Inc. v. Dep't of Environmental Quality, 267 Mich.App. 523, 544, 705 N.W.2d 365 (2005). Again, in relevant part, the order provided:
We also retained jurisdiction "in the cause and the time for proceeding with the appeal in this Court begins upon issuance of an order in the trial court that finally disposes of the remand proceedings." It would be meaningless for this Court to explicitly direct that a motion be filed without necessarily permitting the trial court to either deny or grant the motion. This is particularly true when the trial court was specifically directed to make a "determination on the record." We could not have been clearer that the trial court had the ability to and was, in fact, directed to make such a determination. Therefore, the lower court order granting defendant's motion for a new trial did not exceed this Court's remand order.
Defendant argues that he was denied the effective assistance of counsel.
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. Horn, 279 Mich.App. 31, 39, 755 N.W.2d 212 (2008).
Defendant argues that counsel was ineffective for failing to call Yates as a witness at trial. We disagree.
Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy. People v. Rockey, 237 Mich.App. 74, 76-77, 601 N.W.2d 887 (1999). "[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense." People v. Dixon, 263 Mich.App. 393, 398, 688 N.W.2d 308 (2004). Similarly, "[t]he failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." People v. Grant, 470 Mich. 477, 493, 684 N.W.2d 686 (2004).
In his appellate brief, defendant writes:
At trial, defendant's theory of the case was that this was a terrible accident and that he simply did not see Battle before the point of contact. During opening statements, defense counsel stated:
And during closing argument, defense counsel argued:
At the Ginther hearing, defense counsel testified that Yates's "statement was, in my opinion, contradictory, inconsistent with the theory of the case" and "entirely inconsistent with the physical evidence." Counsel explained that "I didn't see how Mr. Battle could be chasing that vehicle and then basically end up in front of the path of the Tahoe."
We believe that the trial court abused its discretion by granting defendant a new trial. Specifically, we fail to see how defense counsel's decision not to call Yates as a witness was anything other than sound trial strategy. Defendant argues that Yates's potential testimony would have contradicted Battle's testimony that Battle was simply in the wrong place at the wrong time when he was struck by the vehicle. Defendant believes that defense counsel should have set forth a theory that defendant was racing out of the parking lot in order to avoid Deal, who was wielding a crow bar, and Battle, who was wielding a gun. But Yates's statement conflicted with the physical evidence. Michigan State Police Sergeant Kevin Lucidi testified that defendant's vehicle was traveling at a rate of approximately 19 miles per hour just prior to his airbag deploying. Assuming (as does defendant) that Battle was one of the two individuals who had pursued defendant's vehicle on foot, an untenable conclusion would have to be drawn — that Battle initially ran behind defendant's vehicle, passed it on foot at a speed of over 19 miles per hour, and then positioned himself behind his own vehicle before the point of impact. We cannot fault defense counsel for failing to call Yates as a witness when her testimony would have required Battle to be in two places at the same time.
Furthermore, even if defense counsel's decision not to further investigate Yates fell below an objective standard of reasonableness, defendant has failed to show that defense counsel's decision not to call Yates as a witness prejudiced him. Defense counsel argued that this incident was an accident; defendant was looking in his rearview mirror at Deal when he hit Battle, who was in front of him. Defendant was not denied a substantial defense. Furthermore, it is unclear how Yates's testimony would have contributed to this defense given that it seems contradictory. Defendant failed to show that he was denied the effective assistance of counsel, and the trial court abused its discretion by granting defendant's motion for a new trial.
Defendant argues that defense counsel was ineffective by failing to object to the partial closure of the courtroom during jury voir dire, thereby depriving defendant of his right to a public trial, as guaranteed by the Sixth Amendment, U.S. Const, Am VI. We disagree.
Defendant did not object to the partial closure. Our Supreme Court recently held that the forfeiture rule stated in People v. Carines
A defendant has the right to a public trial, which includes the right to have the courtroom open to the public during jury voir dire. Id. at 650-652, 821 N.W.2d 288. However, 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. People v. Kline, 197 Mich.App. 165, 170, 494 N.W.2d 756 (1992).
The record reveals that the voir dire proceedings were partially closed as a result of the limited capacity of the courtroom. The limited capacity of the courtroom was a substantial reason for the closure, and thus, this partial closure did not deny defendant his right to a public trial. Furthermore, defense counsel was not ineffective by failing to object, because there was no error. See People v. Matuszak, 263 Mich.App. 42, 58, 687 N.W.2d 342 (2004) ("[T]rial counsel is not ineffective when failing to make objections that are lacking in merit.").
Next, defendant argues that the evidence was insufficient to establish the intent element of assault with intent to do great bodily harm less than murder. We disagree.
"This Court reviews de novo challenges to the sufficiency of the evidence to determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v. Lockett, 295 Mich.App. 165, 180, 814 N.W.2d 295 (2012) (quotation marks and citation omitted). This Court reviews the evidence in the light most favorable to the prosecution. Id.
The evidence established that Battle and Deal went to defendant's hotel room to confront defendant about Deal's laptop and to retrieve it from defendant. Battle and Deal asked for the laptop once or twice. Defendant assured them that he was going to get the laptop. After defendant neglected to retrieve Deal's laptop, which Battle saw in defendant's truck that was parked right in front of defendant's hotel room, Deal went to defendant's truck, acted like he was going to smash defendant's window, and then actually hit the window once. When defendant saw Deal hit his truck window, he came out of the hotel room and said, "Wait. Hold on." Defendant initially acted as though he was going to retrieve the laptop, but instead got into his truck, backed up, and pulled away. As defendant was backing up, Deal threw the crowbar at defendant's vehicle and then chased the vehicle. Defendant then struck Battle with his vehicle.
Michigan State Police Sergeant Kevin Lucidi testified as an expert in crash reconstruction. Lucidi testified that just before the airbag of defendant's vehicle deployed, the vehicle was accelerating and going approximately 19 miles per hour.
A rational jury could have inferred from the recent confrontation, coupled with the evidence that defendant was accelerating his vehicle before hitting Battle, that defendant had intended to cause Battle great bodily harm. Additionally, the jury was free to disbelieve the evidence that defendant was looking into his rearview mirror when he struck Battle. Therefore, the evidence was sufficient for a rational trier of fact to find that defendant committed assault with intent to do great bodily harm less than murder.
Finally, defendant argues that his verdicts were inconsistent and require reversal of his conviction of assault with intent to do great bodily harm less than murder. We disagree.
This Court reviews de novo questions regarding inconsistent verdicts, which are constitutional issues. See People v. Vaughn, 409 Mich. 463, 465-467, 295 N.W.2d 354 (1980). Under Michigan law, each count of an indictment is regarded as if it were a separate indictment and consistency in jury verdicts is not necessary. Id. at 465-466, 295 N.W.2d 354. Also, "it is possible for a jury to reach separate conclusions on an identical element of two different offenses." People v. Garcia, 448 Mich. 442, 464, 531 N.W.2d 683 (1995).
The Michigan Vehicle Code, MCL 257.1 et seq., defines reckless driving as driving "in willful or wanton disregard for the safety of persons or property...." MCL 257.626(2). Anyone who violates MCL 257.626(2), and in doing so causes serious impairment of a body function to another
Defendant asserts the inconsistency of the verdicts with regard to the intent elements of the respective charges. Defendant's verdicts were not necessarily inconsistent. Defendant's act of driving his vehicle into Battle could have been in willful disregard of Battle's safety and simultaneously with the intent to do Battle great bodily harm. Even so, consistency in jury verdicts in criminal cases is not necessary. Garcia, 448 Mich. at 464, 531 N.W.2d 683; Vaughn, 409 Mich. at 465-467, 295 N.W.2d 354. Defendant's claim is without merit.
Defendant's convictions and sentences are affirmed and the order granting new trial is reversed.
SAWYER, J., concurred with KIRSTEN FRANK KELLY, P.J.
RONAYNE KRAUSE, J., (dissenting).
I respectfully dissent from the majority's conclusion that the trial court abused its discretion by granting defendant's motion for a new trial.
To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance resulted in prejudice. People v. Armstrong, 490 Mich. 281, 289-290, 806 N.W.2d 676 (2011). Determining the issue of effectiveness of counsel entails an analysis of the facts and of the law; the trial judge "must first find the facts, then must decide whether those facts establish a violation of the defendant's constitutional right to the effective assistance of counsel." Id. at 289, 806 N.W.2d 676 (quotation marks omitted). We review the trial court's factual findings for clear error, meaning we must be definitely and firmly convinced that the trial court made a mistake in its factual findings. Id. We review de novo questions of law. Id. We also review de novo whether a defendant was prejudiced. People v. Dendel, 481 Mich. 114, 132 n. 18, 748 N.W.2d 859 (2008). "A trial court's decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion." People v. Blackston, 481 Mich. 451, 460, 751 N.W.2d 408 (2008) (citation omitted). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. People
A defendant is entitled to a new trial on the basis of ineffective assistance of counsel if two requirements are satisfied: first, that counsel's performance was objectively unreasonable and second, that it was reasonably probable that the outcome of the proceedings would have been different but for counsel's deficient performance. Armstrong, 490 Mich. at 289-290, 806 N.W.2d 676. Defendant's claim of ineffective assistance is premised on his trial counsel's failure to call an eyewitness to some of the events that immediately led up to the specific events on which defendant's convictions were based. Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy. People v. Rockey, 237 Mich.App. 74, 76, 601 N.W.2d 887 (1999). This Court does not generally second-guess counsel on matters of trial strategy, nor does it assess counsel's competence with the benefit of hindsight. People v. Horn, 279 Mich.App. 31, 39, 755 N.W.2d 212 (2008).
However, an attorney's "failure to call witnesses ... constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense." People v. Dixon, 263 Mich.App. 393, 398, 688 N.W.2d 308 (2004). "The failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." People v. Grant, 470 Mich. 477, 493, 684 N.W.2d 686 (2004). Additionally, the failure to call a witness may constitute ineffective assistance of counsel when the witness' testimony is substantial, even when the testimony is cumulative. People v. Johnson, 451 Mich. 115, 120-124, 545 N.W.2d 637 (1996). Importantly, therefore, whether counsel's failure to call a witness or investigate a potential witness was objectively deficient may depend significantly on a factual inquiry into the effect the witness might have had on the outcome of the proceedings.
During the trial, defendant's theory of the case was that the victim, Deshun Battle, and an associate of the victim, Dijon Deal, had come to his hotel room seeking the return of a laptop computer. Deal held a crowbar, and at one point defendant indicated that he believed Battle had a shotgun. Deal began applying the crowbar against the window of defendant's truck, as if to break the window. Defendant exited the hotel room, got in his truck, and attempted to drive away while being pursued by Deal. Meanwhile, Battle, according to his own testimony, drove his own car around a corner, parked it, and exited the vehicle to perform maintenance on his car's speakers. Defendant claimed to have been looking in his rearview mirror at the man chasing him when he crashed into the back of the other vehicle, pinning Battle between the two vehicles. In other words, defendant's theory was that his driving was neither reckless under the circumstances nor was it the product of any sort of intent to cause harm.
At the Ginther hearing,
Defense counsel testified that he was aware that Yates and another woman witnessed the incident. Defense counsel never talked to Yates or the other woman personally. However, he did review Yates's police statement. Defense counsel believed that Yates's statement that two men chased defendant's vehicle was inconsistent or contradictory to his theory of the case that Battle was hit with the front of defendant's vehicle. Defense counsel assumed without knowing that the two men Yates referred to in her statement were Battle and Deal. However, he conceded that Yates's statement did not necessarily contradict the physical evidence.
The trial court concluded that trial counsel was ineffective because of his failure to investigate and to call a particular witness. The court reasoned:
The only defense presented in support of defendant's case was made during closing argument. Again, defense counsel argued that defendant "was looking out of his rearview mirror at Deal when he struck Battle who was standing at the back of the Dodge Durango [Battle's vehicle]." Counsel also argued that there was no evidence that defendant knew where
I note initially that counsel's subjective discomfort with "civilian witnesses," whatever those might be in this context, is simply not, at least to my mind, a sound strategic reason for failing to investigate or call any such witness who could cast doubt on the credibility of a complainant or other prosecution witness. More significantly, the applicable standard of review in this case is that of reviewing the trial court's factual findings for clear error, there being no real legal dispute before this Court that I can discern. Consequently, our inquiry is not whether we would have arrived at the same conclusions, but whether the trial court's conclusions definitely appear wrong.
I find no clear error in the trial court's conclusion that, contrary to defense counsel's view of Yates's testimony, she did not contradict either defendant's theory of the case or the physical evidence. It is common knowledge that the viewing perspective from inside a moving vehicle is not perfect; the fact that defendant apparently did not see Battle in his rearview mirror does not constitute evidence that Battle was not giving chase. Furthermore, because defendant apparently never exceeded 20 miles an hour and went around a corner, there is no reason why Battle could not have initially pursued defendant from behind and ended up running in front of him. The majority finds this possibility "untenable," however as I interpret the evidence, this runner could have taken a "short cut" across the corner to get in front of the SUV. This scenario is certainly not impossible or contrary to the physical evidence, and I find it plausible enough that I can imagine no sound strategic reason not to seek to present it to a jury. It is also not the likeliest of scenarios, but our role on appeal is not to determine what conclusion we would have drawn had we been sitting as the trial court, but rather whether we are definitely and firmly convinced that the trial court made a mistake.
At the same time Yates's testimony supports the possibility that Battle was armed with a shotgun, and it directly contradicts Battle's testimony that he had departed from the dispute before defendant got into his truck. If the jury had chosen to find her testimony credible — which is not an assessment we may make — it could have found that Battle was not merely "minding his own business" elsewhere but was instead participating in armed pursuit of defendant with a weapon capable of killing defendant, notwithstanding the fact that defendant was inside a moving vehicle. The jury could have found that under the circumstances defendant was neither driving recklessly nor intending to harm Battle.
I am not definitely and firmly convinced that the trial court made a mistake by concluding that Yates's proposed testimony would not contradict the physical evidence but would have contradicted and undermined Battle's testimony. People v. Mullen, 282 Mich.App. 14, 22, 762 N.W.2d 170 (2008). The trial court is in the better position to evaluate the credibility of the witnesses who appeared before it, both at trial and at the Ginther hearing. The trial court will have to hear the matter again on retrial and its findings are entitled to deference. Yates's testimony would have
