People of Michigan v. Elijah Zackary Robinson ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 13, 2020
Plaintiff-Appellee,
v No. 346390
Wayne Circuit Court
ELIJAH ZACKARY ROBINSON, LC No. 18-004458-01-FH
Defendant-Appellant.
Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ.
PER CURIAM.
Defendant was convicted following a jury trial of carrying a concealed weapon, MCL
750.227. He was sentenced to three to five years in prison. Defendant appeals as of right. Finding
no errors warranting reversal, we affirm. This appeal is decided without oral argument. MCR
7.214(E)(1)(b).
I. BASIC FACTS AND PROCEDURAL HISTORY
On May 1, 2018 at approximately 2:00 a.m., River Rouge Police Officer Sergio Olivito
was on routine patrol when he observed a vehicle disregard a stop sign, and he effectuated a traffic
stop. When Officer Olivito approached the driver, River Rouge Police Sergeant Ronald Guffey
was present at the scene. There were two individuals in the car, the driver and defendant, the front
seat passenger. When the driver was asked for his driver’s license and registration, he presented
a “sovereign citizens card” and represented that the vehicle was a rental. Officer Olivito learned
that the license for the driver was suspended. The officer also opined that the sovereign citizens
card was not “a legal instrument.” It was determined that the vehicle would be impounded, and
defendant, as the passenger, had to be removed from the car.
Defendant was asked to step out of the car, but he hesitated. Officer Olivito noticed that
there was something in defendant’s right front pants pocket. When asked what he had in his
pocket, defendant indicated that it was a flashlight. Officer Olivito recognized that it was a gun.
Sergeant Guffey recovered the gun, a black subcompact Smith & Wesson. The gun was loaded
with one round in the chamber and six rounds in the magazine. Defendant refused to answer
whether he had a concealed weapons permit, a license that authorizes a civilian to carry a concealed
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weapon, and the police determined that he did not have a valid permit. Defendant was arrested at
the scene for carrying a concealed weapon (CCW).
At his arraignment on the information, defendant’s counsel waived formal reading of the
information and indicated that defendant stood mute. However, defendant objected to the
proceeding and sought to “waive counsel.” Defendant indicated that he would represent himself.
Wayne Circuit Court Judge Dalton Roberson advised defendant that he would not represent
himself at that stage of the proceeding. Defendant inquired whether the judge had received his
motion to dismiss. However, defendant filed the document with court administration, not the court
clerk. The court noted that defendant’s actions demonstrated why he needed representation by
counsel because defendant did not know what he was doing. Defendant orally moved to dismiss
the charge of carrying a concealed weapon, relying on his “certificate of genuineness” from the
state department. The court asked to see a copy of the motion, but defendant did not have one.
The court advised defendant that he should keep copies of his filings if he was acting as his own
lawyer. The court noted that the arraignment was complete, and the case was assigned to Judge
Cynthia Gray (CG) Hathaway.
On June 14, 2018, Judge CG Hathaway held a calendar conference hearing that notified
the parties of the schedule and motion deadlines. Defendant refused to sign the document and
again sought to “waive counsel.” Defendant stated that he did not want counsel representing “my
estate,” counsel had a “conflict of interest,” and she was “dangerous” to his estate. The trial court
indicated that it would allow defendant to represent himself, but counsel would remain in her
position as an advisor. Defendant nonetheless continued to argue with the court about the need
for advisory counsel. Defendant then inquired about the status of his motion for dismissal because
he was a “foreign state.” The trial court noted that it had not received any such motion and asked
if it had been sent to the court and the prosecutor. Defendant inquired how he was supposed to
know where to send the motion. The trial court noted that it could not address bond because
defendant refused to cooperate with the evaluation and that defendant should cooperate with
defense counsel to learn to whom to serve the motions. As defendant was led away, he stated that
he did not consent to the proceedings.
On July 20, 2018, Judge CG Hathaway held a hearing on defendant’s motion to dismiss,
but denied the motion by concluding that the court had jurisdiction over defendant. Additionally,
the trial court rescinded its prior order allowing defendant to represent himself, finding that
defendant would not act in an orderly and non-disruptive manner during the trial. Consequently,
counsel would conduct the trial and not merely act in an advisory capacity. Further, the trial court
advised defendant that if he disrupted the trial, he would not be present in the courtroom.
Defendant inquired if the trial court had an oath of office. He repeatedly asked the question despite
the trial court’s affirmative answer. The trial court then noted for the record that defendant had to
be restrained by the deputies in the courtroom, and this conduct provided another reason to deny
his request for self-representation.
On August 30, 2018, Judge Michael Hathaway was assigned to preside over the trial, but
it had to be adjourned. Defendant once again moved to dismiss the CCW charge for lack of
jurisdiction. Specifically, he asserted that he was a “Moor Executive Officer” and dismissal was
appropriate in light of the “Treaty of Peace and Friendship with Morocco of 1786.” The trial court
denied the motion, stating that the 1786 treaty was superseded by a treaty of 1952, and held that it
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had personal and subject matter jurisdiction. Defendant requested a jury trial and to represent
himself. The trial court advised defendant that he was expected to follow the rules of the
courtroom, there were restrictions on his conduct before the jury, the charge was carrying a
concealed weapon, and the penalty was five years. The trial court also advised defendant that the
conduct of a bench trial was “more liberal” than a jury trial because there was no “nonsense” before
a jury. Although the trial court agreed that defendant could represent himself, the trial court
advised that defense counsel would remain on the case in an advisory capacity. Again, defendant
insisted that advisory counsel presented a “conflict of interest.” The trial court scheduled the case
for a jury trial at defendant’s request.
On the trial date, defendant again alleged that he was not subject to prosecution.
Specifically, defendant alleged that he was a Moor “representing treaty of friendship and peace,”
he was the executive officer of his estate, and he was the “owner and the custody holder” of the
certificate of genuineness. The trial court again advised that defendant was subject to the laws of
this state. With regard to the right of self-representation, the trial court stated:
In the past you have expressed an interest in representing yourself, which
you have a right to do, but I just need to warn you that you are charged with a 5-
year felony. You have a lawyer that was appointed to represent you, a very
competent lawyer who is prepared to move forward and represent you in this
matter. But I also indicated to her the last time we were on the record that if you
persist in your insertion of your right to represent yourself then I will just simply
ask [defense counsel] to continue in her role of advisor so in case any legal issue
comes up you can consult her.
But this case, if you do represent yourself, you’re going to be expected to
follow the rules of criminal procedure from picking the jury to making opening
statements, cross examining the prosecution witnesses, to making your closing
arguments. And one of the things that you will not be permitted to do is interrupt
or disrupt this trial in any way or attempting to advance your idea of the law that
the jury is to take into account in this case. As the trial Judge I tell the jury what
the law is. You don’t tell the jury what the law is especially if your idea of the law
is what has be[en] written about in one way or another in the various writings that
appear in the Court file and or some of your oral statements. It’s the law of the
State of the Michigan, the United States[,] the Michigan rules of criminal procedure
that will apply in your case.
Now I also want to make a record with respect to . . . something I received
in the mail a few days ago called a Notice Statement, and it contains five numbered
paragraphs. Paragraph one says: . . . I require you Michael Hathaway . . . to
discharge[] all matters pertaining to 18-004458-01, Elijah Robinson and close the
account.
Paragraph 2, says furthermore, I require you to release Elijah Robinson on
his own personal recognizance until the hearing.
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Third paragraph: If, Elijah Robinson is not released within 3 days, then you
agree to pay 100 million dollars to Elijah Robinson on the next hearing.
This is the next hearing. I’m not paying all that money.
And then the forth [sic] paragraph is, I will need your confession to treason,
Treasonous treatment, and find Elijah Robinson waiver benefit privilege and
waiver no rights at any time, at any place, without prejudice . . . . All rights
reserved.
So I received this and there is nothing for me to do about it other than to tell
you perhaps what you already know, and that is that I do not recognize an agreement
to pay 100 million dollars, and I will not confess to treason.
And once again, this case will proceed in accordance with the Michigan
Rules of Civil [sic] Procedure and the laws and statutes of the State of the Michigan.
The trial court then inquired whether defendant wished to represent himself on two
occasions, and defendant instead began to argue his status as a Moor. The trial court admonished
defendant that he could not continue to interrupt the court and the proceedings, and he would be
removed from the courtroom while the trial occurred without his presence. The trial court asked
defendant a third time whether he wished to represent himself and whether he wanted a jury or
bench trial. Defendant responded by asking if a jury trial was a contract. At that time, the trial
court inquired of defense counsel if defendant had been evaluated for competency. Defendant
responded, “I’m clearly competent because I have made my status on the record of my name, body
and soul pursuant [to] Cannon’s Positive of Law, Cannon 2056 and 2057. I’m extremely
competent.” Defense counsel indicated that he has been competent since her assignment, but she
was unaware of what transpired in district court when defendant was assigned different counsel.
Finally, defendant expressed that he would represent himself according to the Michigan Court
Rule, select a jury, and leave counsel in an advisory role.
Before jury selection, the trial court again advised defendant that he could not be disruptive
to the proceedings, and it would be to defendant’s advantage to remain in the courtroom. However,
defendant was told that he would be removed and the trial would continue without him if he did
not abide by the court’s instruction. Specifically, defendant was given notice that his right of self-
representation was conditional and premised on following the rules. At the conclusion of jury
selection, defendant sought to admit an exhibit. The trial court advised defendant that opening
statement was the time to discuss what the evidence would show and speeches about Moor values
or what the law should be was inappropriate. The court also noted that the admission of evidence,
including exhibits, would occur after opening statements occurred. During opening statement,
defendant argued that his defense was his “American nationality” and the privileges guaranteed
by the US Constitution.
During cross-examination of Officer Olivito, defendant asked the officer to recite the
Second Amendment. The trial court instructed defendant that this was not a Second Amendment
trial, and he could question the officer about the traffic stop and arrest. Defendant continued to
cross-examine the officer about the contents of the police report and again began to question him
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about the Second Amendment. The trial court admonished defendant that the CCW charge
pertained to a Michigan statute that made it unlawful to carry a weapon without a license.
Defendant then questioned the validity of the US Constitution in the courtroom. The trial court
instructed defendant to stop arguing with the court and either cross-examine the witness within
permissible boundaries or end the questioning.
Despite the court’s instruction, defendant then posed the following question to Officer
Olivito, “So you said that the second amendment pertains to the right to bear arms?” The court
then advised defendant accordingly:
All right. Mr. Robinson, I’m going to have to - - you do this one more time
I’m just going to make it so - - you have the Constitutional right to a fair trial, but
that also requires you to follow the court’s rulings and rules of engagement. I told
you not to question this witness about the second amendment. The statute in the
State of Michigan requires people to obtain licenses to carry pistols has been tested
in our Federal Courts numerous times and does not violate the second amendment.
But the jury in this case doesn’t even have to get into that issue any way. It’s
already taken care of.
I instruct the jury on the law. You litigate the facts of the case. And if you
have any questions of this witness you - - otherwise I’m going to have [defense
counsel] do the cross-examination?
Instead of following the trial court’s instruction regarding witness questioning, defendant
once again began to question the court about its authority and “oath of office.” The trial court
reminded defendant that he was instructed to follow the rules and procedures of the court and if he
persisted in failing to follow direction, defendant would be removed from the courtroom.
Defendant questioned the legality of that action, and the trial court had defendant “taken to the
back.” Defense counsel took over the cross-examination of the witnesses. Although defendant’s
theory raised Second Amendment and constitutional rights, defense counsel focused on the
officers’ lack of knowledge of who carried the gun into the car and the time spent with the driver
while defendant was alone in the vehicle. Defendant returned to the courtroom to determine if he
wanted to testify. Defendant stated:
You want to dishonor your oath of office. I am not obligated to participate
in this trial because you have dishonored the oath of office. You are sitting next to
the flag of the United States of American [sic] and you are making false accusations
misleading statements, and they are super treasonous and I’m acting upon my right
to remove myself from this contact that you’re all over. I do not want to be a part
of this and I would like this case moved to the Michigan Court of Appeals because
you are a terrorist treasonous person and I do not want to be here any longer.
* * *
I still motion for leave to appeal, and I don’t consent to [defense counsel]
operating this case because she doesn’t have custody of my name, mind, body or
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soul. I have property of it. No one in here does. And you dishonored your oath of
office. And I am grieving you to the Tenor [sic] Commission and you too.
The trial court concluded that defendant did not wish to testify, and he was removed from
the courtroom. A discussion occurred regarding jury instructions addressing defendant’s exercise
of his right of self-representation in light of the trial court’s decision to vacate the right because of
the interference with the trial. When the jury returned to the courtroom, the trial court advised the
jury:
So we brought the defendant back out to ask him if he wanted to testify
because he has a right to testify on his own behalf as long as he just testifies and
doesn’t make speeches, but he also has a right not to testify. What Mr. Robinson
expressed while he was out here was that he found the whole process to be
treasonous and so he didn’t want to have any more - - didn’t want to have any part
of it any more. So he’s back behind the courtroom, and we’re just going to have to
finish the trial without him, I guess.
To provide you some context here and I want to be fair about this. Mr.
Robinson professes to be what is called sovereign Moor, and that’s sort of a
movement that there is some followers of and they believe as best as I can tell, that
they’re sovereign entities and that the laws doesn’t apply to them. I’m not totally
clear on what their belief system is. But the - - he’s a citizen and a resident of the
United States. So obviously our laws apply to him whether he thinks they do or
not. That also means that his Constitutional protections apply to hm whether he
wants them or not. It means he’s entitled to have a fair trial as fair as we can make
it without his interfering with it.
But anyway, the issues that you’re going to have to decide in this case is
whether or not he committed the crime that he is charged with. That’s all. Not
whether his idea of the second amendment has any application here or whether I’m
guilty of treason and anything else. But he chose not to participate any further in
the trial.
And so [defense counsel] was originally appointed as his lawyer and who
he said he didn’t want representing him now has to represent him again because he
just wanted to do it his own way, and we were never going to really get to a
conclusion here with him in the courtroom.
So you know it’s still he’s entitled to a fair consideration of the evidence
that you heard whether he’s guilty of the crime or not.
Defense counsel argued to the jury that the individual who brought the gun into the vehicle
was unknown. It was suggested that the driver of the rental vehicle was caught without a valid
license and had the time to pass the gun over to defendant. Under those circumstances, defense
counsel argued that defendant could not be convicted of CCW. Despite this argument, the jury
convicted defendant as charged.
I. WAIVER OF RIGHT TO COUNSEL
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Defendant first alleges that he is entitled to a new trial because the court failed to obtain a
valid waiver of his right to counsel. We disagree.
A trial court’s factual findings addressing a knowing and intelligent waiver of the right to
counsel are reviewed for clear error. People v Williams, 470 Mich. 634, 640; 683 NW2d 597
(2004). Questions of law, including the meaning of the phrase “knowing and intelligent,” are
reviewed de novo. Id. The appellate court may not substitute its view for that of the trial court,
but must respect the trial court’s factual findings and determinations regarding credibility. Id. at
642.
Defendant did not challenge the validity of the waiver of the right to counsel in the trial
court. Appellate relief for a claim of error not raised in the trial court will not be granted unless
“the proponent establishes, among other things, that the unpreserved error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” People v Cain, 498 Mich. 108,
112; 869 NW2d 829 (2015). The rule that issues not raised in the trial court cannot be raised on
appeal absent extraordinary or compelling circumstances is rooted in fairness; it allows a litigant
to address an error at the time it occurs, and it protects the public from bearing the cost of a new
trial that could have been avoided by a timely objection. Id. at 114. Even consideration of
unpreserved claims of constitutional error are disfavored. Id. at 115. The requirement of a
contemporaneous object not only permits correction of a claim of error, but prevents a litigant from
“sandbagging” the court by remaining silent about the objection and belatedly raising the claim if
the trial does not conclude in his favor. Id. Thus, unpreserved claims of structural error are
nonetheless reviewed for plain error affecting substantial rights. Id. at 116. To meet the plain
error standard, the proponent must establish that (1) an error occurred, (2) the error was plain, i.e.,
clear or obvious, and (3) the error affected substantial rights, meaning the outcome of the
proceedings was affected. People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). If these
three requirements are met, the fourth prong involves the court’s exercise of its discretion, and
reversal is warranted only when it is concluded that the plain, forfeited error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. Id.
Although an accused is afforded the Sixth Amendment right to counsel, US Const, Am VI,
he also has a constitutional right to proceed without counsel if he truly wants to do so. Faretta v
California, 422 U.S. 806, 817; 95 S. Ct. 2525; 45 L. Ed. 2d 562 (1975). In Michigan, the right of self-
representation is explicitly recognized by our constitution and by statute. Const 1963, art 1, § 13;
MCL 763.1; People v Anderson, 398 Mich. 361, 366; 247 NW2d 857 (1976). When a defendant
initially requests to proceed as his own counsel, a court must determine that (1) the defendant’s
request is unequivocal, (2) the defendant is asserting his right knowingly, intelligently, and
voluntarily through a colloquy advising the defendant of the dangers and disadvantages of self-
representation, and (3) the defendant’s self-representation will not disrupt, unduly inconvenience,
and burden the court and the administration of the court’s business. People v Russell, 471 Mich.
182, 190; 684 NW2d 745 (2004) citing Anderson, 398 Mich. at 367-368. Compliance with the
waiver of counsel procedures is necessary to a judicial grant of the right to proceed in propria
persona. People v Adkins (After Remand), 452 Mich. 702, 721; 551 NW2d 108 (1996).
Additionally, MCR 6.005(D)(1) addresses the procedure for a defendant’s waiver of the
right to an attorney and prohibits a court from granting the request without first advising the
defendant of the charge, the maximum possible prison sentence for the offense, any mandatory
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minimum sentence required by law, and the risk involved in self-representation. People v
Williams, 470 Mich. 634, 642-643; 683 NW2d 597 (2004). A defendant may only enter into self-
representation fully aware of the dangers of acting as his own counsel, or “with his eyes open.”
Faretta, 422 U.S. at 835.
When a defendant seeks to represent himself, trial courts must substantially comply with
the substantive requirements set forth in both Anderson and MCR 6.005(D) through a short
colloquy with the defendant, and make an express finding that the defendant fully understands,
recognizes, and agrees to abide by the waiver of counsel procedures. Adkins, 452 Mich. at 726-
727. When the trial court fails to substantially comply with those requirements, the defendant has
not effectively waived his right to the assistance of counsel. Russell, 471 Mich. at 191-192.
Here, defendant unequivocally requested the waiver of his right to trial counsel, by
requesting self-representation at each hearing and rejecting the assistance of trial counsel. Further,
defendant’s right was knowingly, intelligently, and voluntarily waived as established by the
exchange with the trial judges regarding the advantages and disadvantages of self-representation.
Indeed, both Judge Roberson and Judge CG Hathaway expressly noted that defendant’s filing of
the motion to dismiss with the wrong office and the failure to serve the appropriate parties
demonstrated his need for legal assistance. Defendant was advised that he must abide by the rules
governing practice and procedure despite his lack of legal training. Finally, defendant agreed to
abide by the court rules and rules of evidence and acknowledged that he would not disrupt the
court proceedings. Accordingly, the trial judges complied with the requirements of the Anderson
decision.
Additionally, the trial court complied with the procedures of MCR 6.005(D)(1) by advising
defendant of the charge of CCW, the possible penalty of five years, and warning him of the risks
of self-representation. Defendant argues that the trial court did not adequately advise him of the
risks of self-representation. However, the trial court informed defendant that he would have to
comply with the rules of the court, with the court rules to select the jury, make an opening
statement, cross-examine the prosecution witnesses, and make a closing argument. Further,
defendant was apprised that he could not advance legal theories that did not comport with
Michigan law and the court rules, and that he would be removed for disruptive behavior. Thus,
the trial court provided adequate advice to defendant about the perils of self-representation.
Despite the compliance with the caselaw and court rules, appellate counsel argues that
defendant did not knowingly and understandingly waive his right to counsel because of his
apparent mental illness. Before the trial judges, defendant argued that he was a member of the
“Moorish Science Temple of America,” that he was governed by a Moroccan Treaty, and that he
was not subject to the court’s jurisdiction. This argument prompted Judge Michael Hathaway to
inquire if defendant had been evaluated for competency. Defendant seemingly took offense to that
inquiry and confirmed on the record that he was competent. Defense counsel further affirmed that
during her representation she found defendant to be competent. Indeed, defendant submitted
documentation regarding his membership in the Moors and their laws, and his belief that he was a
person of national origin entitled to a possessory interest in land. A nonconventional belief system
does not equate with mental incompetence, but also, membership in religious or other
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organizations does not exempt an individual from the laws and regulations passed by the state.1
Accordingly, the trial judges heard defendant’s argument involving his membership in the Moors
and his reliance on the Second Amendment to preclude the prosecution, but rejected his argument
by relying on the statutory violation of CCW in accordance with MCL 750.227.2 Appellate
counsel’s blanket assertion of mental incompetency is not supported by the record.3 Accordingly,
defendant failed to demonstrate plain error affecting substantial rights arising from this
unpreserved issue. Defendant adamantly sought to represent himself in the trial court and
attempted to prevent advisory counsel from assisting him. The trial court substantially complied
with the Anderson requirements as well as MCR 6.005 and obtained a knowing, voluntary, and
understanding waiver.
III. JUDICIAL IMPARTIALITY
Defendant next submits that the trial court improperly made misrepresentations to the jury
regarding defendant’s statements and beliefs and that these misrepresentations amounted to
testimony by the trial judge. This claim of error does not entitle defendant to appellate relief.
A defendant has a right to a neutral and detached judge and a trial court may not “pierce
the veil of judicial impartiality.” People v McDonald, 303 Mich. App. 424, 437; 844 NW2d 168
(2013). A defendant claiming judicial bias must overcome a heavy presumption of judicial
impartiality. People v Jackson, 292 Mich. App. 583, 598; 808 NW2d 541 (2011). “A judge’s
conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering
the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a party.” People
v Stevens, 498 Mich. 162, 171; 869 NW2d 233 (2015). A breach of the veil of impartiality presents
a fact-specific inquiry, and this Court examines the “cumulative effect” of any errors. Id. at 171-
172. A single instance of misconduct generally does not create an appearance that the trial judge
is biased, unless the instance is “so egregious that it pierces the veil of impartiality.” Id. at 171.
When evaluating the totality of the circumstances, we consider a variety of factors that include the
nature of the judicial conduct, the tone and demeanor of the trial judge, the extent of the judicial
1
Defendant’s Moorish identity card also states that “I AM A CITIZEN OF THE U.S.A.” Although
defendant’s presentation of the Moorish documents indicate that the Grand Sheik has the “power
to make law,” he does not present those laws and does not address the Grand Sheik’s position
regarding laws governing citizens and residents of the U.S.A.
2
According to the only testimony offered at trial, defendant hesitated to leave the vehicle when
asked by the police. Additionally, when the officers observed the bulge in defendant’s pocket, he
did not disclose the gun. Rather, Officer Olivito testified that defendant indicated it was a
flashlight. Curiously, defendant did not immediately rely on his Moor membership and
constitutional law, but sought to hide the gun on his person.
3
Appellate counsel contends that defendant suffered from a mental illness by relying on a
statement made by his mother to the probation office. However, an affidavit or other documentary
evidence from his mother or other medical professional was not submitted with the brief.
Defendant filed a Standard Four Brief, but did not raise an issue of mental incompetence impacting
his waiver of the right to counsel.
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conduct in light of the duration and complexity of the trial and the issues raised, the direction of
the conduct at one side more than the other, and the presentation of curative instructions. Id. at
172.
Defendant contends that the trial judge pierced the veil of judicial impartiality by
misrepresenting to the jury that defendant believed that the “process was treasonous” when
defendant accused the trial court of being a “terrorist treasonous person.” Further, defendant
contends that the trial court’s commentary constituted improper testimony. Although we question
the necessity and extent of the explanation offered by the trial court to the jury, under the totality
of the circumstances, we do not conclude that defendant was deprived of a fair trial.
First, with regard to the claim of the judge’s mischaracterization of treason as applying to
the entire court process as opposed to only the trial judge, we note that defendant had challenged
jurisdiction of the court from the beginning. He claimed that his status as a Moor precluded the
assumption of personal jurisdiction and that dismissal was warranted. He repeatedly raised this
same claim at each hearing and filed documentation pertaining to Moors. Further, defendant
submitted a notice statement that demanded his release and payment of millions of dollars. It
appears that the trial court did not deliberately misrepresent defendant’s view of the extent of the
treason and its application, but rather, attempted to explain defendant’s position in view of its
expressions in documentation filed with the court and at multiple court hearings.
We also note that this trial lasted a single day and involved one charge of CCW. Further,
the trial court’s admonishments were precipitated by defendant’s repeated failure to follow
instructions. Although defendant agreed to follow the court rules and procedures, agreed to not
disrupt the proceedings, and agreed that the trial court instructed on the law, defendant ignored the
trial court’s direction and continually raised a claim pertaining to the Second Amendment.
Additionally, defendant admitted evidence that the driver of the vehicle also presented a sovereign
citizens card. Furthermore, the trial judge instructed the jury that “[n]othing I say is meant to
reflect my own opinions about the case,” that the jurors were the sole decisionmakers, and that the
judge’s rulings on the evidence also did not reflect his opinions about the facts of the case.
Finally, the trial court’s questionable instruction to the jury came after the parties discussed
jury instructions. Specifically, defendant was entitled to M Crim JI 2.20 governing a defendant’s
self-representation that provides:
In this case, the defendant, ___________________________, is representing
[himself / herself]. This fact should not affect your decision in any way. The
defendant has the right to represent [himself / herself], and [he / she] has chosen to
exercise that right. [A lawyer, _____________________________, is present if the
defendant wishes to consult (him / her).]
However, the trial court determined it had to remove defendant from representing himself in light
of his continual disruptions, disregard of the trial court’s instructions, and his apparent attempt to
pursue jury nullification by asking the jurors to disregard MCL 750.227 in favor of the Second
Amendment. Thus, the trial court’s instruction to the jury was seemingly designed to explain the
change in representation, defendant’s decision not to testify, and the appropriate law to apply.
Although the trial court may have exceeded the bounds of what was necessary to explain
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defendant’s removal, the short duration of the trial, the curative instructions presented to the jury,
and the need to clarify the exchange between defendant and the court in light of the rules
demonstrate that defendant was not deprived of a fair trial.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next submits that trial counsel was ineffective for failing to object to the trial
court’s commentary and its conduct over the trial that pierced the veil of judicial impartiality. We
disagree.
Although defendant initially represented himself, the trial court ordered defendant removed
from the courtroom. Accordingly, standby counsel took over the questioning of witnesses, the
discussion of the applicable jury instructions, and closing argument. Thus, we only address this
issue to the extent it raises alleged deficiencies of standby counsel.4 “Whether a defendant received
ineffective assistance of trial counsel presents a mixed question of fact and constitutional law.”
People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011). This Court reviews a trial court’s
factual findings for clear error and its conclusions of law de novo. People v Miller, 326 Mich. App.
719, 726; 929 NW2d 821 (2019). When no Ginther5 hearing is held in the trial court, appellate
review is limited to mistakes apparent on the record. Id.
“Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions.” People v Schrauben, 314 Mich. App. 181, 189-190; 886 NW2d
173 (2016). To obtain a new trial premised on ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of reasonableness and
that there is a reasonable probability that but for counsel’s errors, the result of the proceeding
would have been different. People v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012). It is
presumed that defense counsel was effective, and a defendant must overcome the strong
presumption that counsel’s performance was sound trial strategy. People v Trakhtenberg, 493
Mich. 38, 52; 826 NW2d 136 (2012). “[D]ecisions regarding what evidence to present and which
witnesses to call are presumed to be matters of trial strategy, and we will not second-guess strategic
decisions with the benefit of hindsight.” People v Dunigan, 299 Mich. App. 579, 589-590; 831
NW2d 243 (2013). “Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793
NW2d 120 (2010). The burden of establishing the factual predicate for a claim of ineffective
assistance is on the defendant. People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
After defendant was removed from the courtroom, an inquiry had to occur with regard to
his exercise of his right to present a defense and testify. However, when defendant was brought
into the courtroom, he explained his dissatisfaction with the court proceedings and his intent to
grieve the trial judge and his counsel. The litigants then had a discussion with the court regarding
4
“[A] defendant who elects to represent himself cannot thereafter complain that the quality of his
own defense amounted to a denial of ‘effective assistance of counsel.’ ” People v Kevorkian, 248
Mich. App. 373, 419; 639 NW2d 291 (2001).
5
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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the jury instructions, and the impact of defendant’s removal on M Crim JI 2.20. Although the trial
court’s instructions exceeded the elimination of M Crim JI 2.20 in light of defendant’s removal,
defense counsel did not object. However, we will not second-guess strategic decisions by counsel.
In light of the short duration of the trial and the curative instructions to the jury that the case must
be decided on the evidence and that the court’s rulings and opinions should have no bearing on the
trier of fact, counsel’s decision may have been strategic to avoid highlighting the court’s comments
before the jury. Under the circumstances, defendant did not meet his burden of establishing
ineffective assistance of counsel.
V. SENTENCE
Defendant contends that he is entitled to resentencing because the court misapplied the law
and application of clearly erroneous fact finding resulted in a disproportionate and unreasonable
sentence. We disagree.
The trial court’s factual determinations addressing the sentencing guidelines are reviewed
for clear error and must be supported by a preponderance of the evidence, and the facts as applied
to the law are reviewed de novo. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). A
sentence that departs from the applicable guidelines range will be reviewed by an appellate court
for reasonableness, and there is no requirement that the sentencing court articulate a substantial
and compelling reason for that departure. People v Lockridge, 498 Mich. 358, 365-365, 392; 870
NW2d 502 (2015). The legislative sentencing guidelines are advisory, and the appropriate inquiry
when reviewing a sentence for reasonableness is whether the trial court abused its discretion by
violating the principle of proportionality. People v Steanhouse, 500 Mich. 453, 459; 902 NW2d
327 (2017). On appeal, the reasonableness of a sentence is reviewed for an abuse of discretion.
Id. at 471. To determine whether a departure sentence is more proportionate than a sentence within
the guidelines range, the trial court should consider whether the guidelines accurately reflect the
seriousness of the crime, factors not considered by the guidelines, and factors considered by the
guidelines, but given inadequate weight. People v Dixon-Bey, 321 Mich. App. 490, 525; 909 NW2d
458 (2017). To facilitate appellate review, the trial court must justify the sentence imposed with
an explanation of why the sentence imposed is more proportionate to the offense and the offender
than a different sentence would have been. Id.
Although defendant contends that the trial court misapplied the law regarding
proportionality in light of the two-thirds rule of People v Tanner, 387 Mich. 683, 690; 199 NW2d
202 (1972), the trial court did not express that proportionality was satisfied by compliance with
the Tanner decision. Defendant’s contention is without merit. Furthermore, we cannot conclude
that the trial court’s sentence constituted an abuse of discretion. The trial court considered
defendant’s position that he was not bound by state law and reviewed the documentation submitted
by defendant underlying his belief system. Contrary to appellate counsel’s position, there was no
documentary evidence offered to support any mental illness and defendant expressly denied any
such condition. In sentencing, an abuse of discretion did not occur.
VI. STANDARD FOUR BRIEF
Defendant seemingly contends that the trial court lacked jurisdiction in light of his
membership in the “Moorish Science Temple of America.” However, the trial court, as a court of
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general jurisdiction, had jurisdiction over this felony action. People v Lown, 488 Mich. 242, 268;
794 NW2d 9 (2011). Further, viewing the evidence in the light most favorable to the prosecution,
there was sufficient evidence admitted at trial to support the CCW conviction, and defendant’s
challenge to the evidence admitted at trial and his contention that his girlfriend owned the firearm
do not negate that evidence. People v Tennyson, 487 Mich. 730, 735; 790 NW2d 354 (2010).
Defendant did not identify any issue entitling him to appellate relief.
Affirmed.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
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