People of Michigan v. Anthony Michael Myers ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 13, 2016
Plaintiff-Appellee,
v No. 328605
Oakland Circuit Court
ANTHONY MICHAEL MYERS, LC No. 2014-250283-FC
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right his conviction, following a jury trial, of first-degree
premeditated murder, MCL 750.316(1)(a). The trial court sentenced defendant as a third-
habitual offender, MCL 769.11, to life imprisonment without the possibility of parole. We
affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises from the March, 2014 homicide of Lenore Hartman, a 64-year-old
Southfield resident. About a week after her death, defendant, her 54-year-old boyfriend, turned
himself in to the police and confessed during an initial interview that he had killed Hartman
because she had refused to give him money to purchase crack cocaine. After about 10 hours in a
holding cell, defendant initiated a second interview in which he again confessed to killing
Hartman and provided more details of the killing. Although the medical examiner opined that
Hartman had died of asphyxiation, defendant, who had been using crack cocaine and alcohol
during the homicide and for several days following it, claimed during both interviews that he had
stabbed Hartman. Defendant was charged with first-degree premeditated murder. At trial,
recordings of both interviews were presented to the jury. Defense counsel conceded during
closing arguments that defendant’s commission of the homicide was not in dispute, but argued
that the evidence proved that defendant had acted in the heat of passion, and requested that the
jury return a conviction of a lesser-included offense. The jury found defendant guilty as charged.
This appeal followed.
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II. FIFTH AMENDMENT
On appeal, defendant first argues that certain inculpatory statements during his second
interview with officer-in-charge Detective David Clevenger, and Clevenger’s partner, Officer
Hancock, were made after defendant invoked his right to an attorney and should therefore have
been suppressed as having been obtained in violation of his Fifth Amendment right to have an
attorney present during questioning. We disagree.
Although defense counsel brought a pretrial motion to suppress his confessions on the
ground that they were not voluntarily made, he did not challenge the statements on the basis of a
failure to cease questioning upon defendant’s request for an attorney. Therefore, defendant’s
claim is unpreserved. People v Gentner, Inc, 262 Mich App 363, 368-369; 686 NW2d 752
(2004). We review unpreserved claims for plain error. People v Carines, 460 Mich 750, 764;
597 NW2d 130 (1999). A plain error is one that is “clear or obvious,” and the error must affect
the defendant’s “substantial rights.” Id. In other words, defendant must have been prejudiced by
the plain error. Id. Further, “[r]eversal is warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant or an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of defendant’s innocence.” Id.
at 763-764 (internal quotations and alterations omitted).
The Fifth Amendment’s Self-Incrimination Clause states that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” US Const, Am V. This
declaration is mirrored in the Fifth Amendment’s corollary in the Michigan Constitution. Const
1963, art 1, § 17. Reflective of these constitutional protections, a criminal defendant is
guaranteed a number of safeguards against involuntary self-incrimination during custodial
interrogations. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966);
People v Henry (After Remand), 305 Mich App 127, 145; 854 NW2d 114 (2014). One of those
safeguards is the right to have an attorney present. People v Marsack, 231 Mich App 364, 372-
373; 586 NW2d 234 (1998) (“[T]he Fifth Amendment right to counsel is a corollary to the
amendment’s stated right against self-incrimination and to due process.”).
In Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981), the
Supreme Court held that when a defendant invokes his right to have an attorney present during a
custodial interrogation, the defendant may not be subject to further interrogation by the police
until an attorney has been made available, unless the accused initiates further communication,
exchanges, or conversations with the police. Subsequently, in Davis v United States, 512 US
452; 114 S Ct 2350; 129 L Ed 2d 362 (1994), the Supreme Court clarified Edwards and stated
that courts must determine, by objective inquiry, whether the accused actually invoked the right
to counsel. Id. at 458-459. “[A]fter a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the suspect clearly requests an
attorney.” Id. at 461. “[I]nvocation of the Miranda right to counsel requires a statement that can
reasonably be construed to be an expression of a desire for the assistance of counsel.” People v
Adams, 245 Mich App 226, 237; 627 NW2d 623 (2001). Police officers are not required to cease
their interrogation until the accused makes a reference to an attorney and the reference is
unequivocal and unambiguous, such that a reasonable police officer under the circumstances
would have understood only that the accused is invoking his right to counsel. Id.-2-
Defendant does not challenge the admissibility of inculpatory statements he made in his
first interview with the officers, after he was read his Miranda rights and voluntarily signed a
waiver. Further, defendant concedes that it was he who initiated his second interrogation, by
requesting an additional opportunity to speak with Clevenger and Hancock, and that at the
beginning of the second interview, he was again read his Miranda rights before signing a waiver.
However, defendant claims that, shortly thereafter, he requested an attorney. The interview
transcript reads in relevant part as follows:
[Clevenger]: Yes. Ah, you have the right to remain silent. Anything you
say can and will be used against you in a court of law. Ah, you have the right to
talk to a lawyer before answering questioning. You have the right to have a
lawyer present with you while you’re answering questions. If you cannot afford
to hire a lawyer one will be represented to appoint you [sic] before any
questioning if you wish one. You have the right to decide at any time before or
during questioning to use your right to remain silent and your right to talk to a
lawyer while being questioned. And the last thing it says here, like we did
yesterday. Do you understand each of these rights I’ve explained to you? You
[sic] answer is?
[Defendant]: Read that part again.
Clevenger: You understand, which one? Which part?
Defendant: Four.
Clevenger: Four? You do not ah, if you cannot afford to hire a lawyer
one will be ah, appointed to represent you before any questioning if you wish one.
And the last part here says do you understand each of these rights that I’ve
explained to you?
Defendant: So I can have a lawyer during this question [sic] here?
Clevenger: Well you can’t have one right now, we don’t have one
available right now. Your answer, put your answer here. And the date and time.
Defendant: Four?
Clevenger: Ah, it’s Monday, April 7th. And the time is 8:11 p.m. and
what you’re saying to us, right now, just so we’re clear okay? Is you did not want
to have a lawyer present with, with you while you’re being questioned in
reference this, and you don’t want to have, have a lawyer right now. Is that what
you’re telling us?
Defendant: Well I asked for a lawyer and you said you all didn’t have a
lawyer, you say wasn’t a lawyer present right now.
Clevenger: Well, there’s not a lawyer present right now, obviously.
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Defendant: You can get me a lawyer why, why you all questioning me.
Clevenger: You have the right to hire a lawyer and have one if you can
afford one, okay?
Defendant: But I want to talk to you but I want a lawyer present.
Clevenger: Okay, so what you’re saying is that, you want to talk to us?
Defendant: I want to talk to you.
Clevenger: Okay, but you want to have a lawyer present while you’re
talking with us? Okay, well.
Defendant: Is that possible?
Clevenger: Well we can’t question you right now and reference that.
Defendant: Why?
Clevenger: Because you need to have a lawyer, you’re saying that you
want a lawyer.
[Hancock]: You’re requesting a lawyer be present, so.
Clevenger: This is on you, obviously, you came to us you wanted to do
this so, I’m giving you this opportunity if you know, to talk again about this but, I
want to protect your rights, and that’s important to me and that’s important to
Detective Hancock, but, you’re the only person that can tell us what you want to
do we can’t tell you what you want to do okay? and [sic] that’s why I wanted to
go over these rights with you just so you understand that cause [sic] you’re the
one approaching us. You’re.
Defendant: I did approach you.
Clevenger: And you’re the one.
Defendant: I wanted to talk. I just asked, could a lawyer be present? Is
that possible?
Clevenger: Do you have a lawyer in mind?
Defendant: No I don’t, I can’t afford a lawyer.
* * *
Clevenger: . . . So you’re the one that’s gonna have to reach out, the
court will appoint one for you um, at your arraignment, okay? But right now we
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can’t just call some lawyers off the (inaudible) or some guy I know from
(inaudible) say hey this guy wants a lawyer.
Defendant then inquired when he would be charged, and subsequently offered
unprompted additional information, at which time Clevenger attempted to ensure that defendant
was indeed willing to waive his request for an attorney:
Defendant: I’m awake now.
Clevenger: You’re awake now?
Defendant: Yeah. I’m not on crack now.
Clevenger: That’s good. That’s good. So, what you’re saying and you,
you can change your mind if you want but that’s, and like we talked about
yesterday.
Defendant: Lenore um, had twenty dollars on the nightstand. After all,
after all the arguments and things I wanted the twenty dollars. And um, she had a
[sic] ATM card and after I, after I stabbed her and laid there with her, I left with
both those items. The twenty dollars and the ATM card.
Hancock: Now, are you still saying you laid there with her for two days
like you told us originally or you left right away with those items.
Defendant: I stayed there two days.
Hancock: Okay, they you left with those items, okay.
Clevenger: Let me ask you this again. Do you want to talk with us? And
this is huge, this is a big deal because this is not just some simple case here, okay?
Do you want to have a lawyer present with you?
Defendant: Yes I do.
Clevenger: While you’re being questioned here.
Hancock: We need to stop.
Clevenger: We need to stop, okay?
Defendant: Why?
Clevenger: Because that’s what you’re saying. I have to honor, we have
to honor your request.
Hancock: We can’t continue to talk to you.
Clevenger: Right.
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Hancock: Okay?
Clevenger: We can’t ask you questions about the case. I mean that’s the
law, that’s the constitution, I mean that’s the constitution.
Defendant: I want to help you with this case.
Clevenger: Sure.
Defendant: But I also need to protect myself too.
Clevenger: That’s fair, I understand that, we understand that.
Defendant: Which means now if I want a lawyer I go back to where I was
at?
Hancock: Yeah.
Clevenger: We’ll take you back upstairs. I mean you have to, I mean
that’s where you’re going it’s not like you’re gonna go.
Defendant: I’m not.
Clevenger: You know what I’m saying?
Defendant: I know I’m not going home.
Clevenger: Yeah, that, I mean it just, we, and I mean we’ve been doing
this a long time. I want to make sure that your rights are protected. It’s only fair
to you and only fair to anybody else involved in this so, if that’s what you’re
saying that you want lawyer present with you while you’re being questioned, like
I said it’s your constitutional rights, then that’s what we’ll honor. Now, if you’re
saying no I don’t want to have a lawyer present and you’re, you’re adamant about
that, I don’t want to have a lawyer present, I will answer questions without a
lawyer present then that’s a different story but that’s your decision, that you have
to make, we can’t make that decision for you.
Defendant: Can you give me a moment let me think about this?
Clevenger: Sure.
Hancock: Sure.
Defendant: Ask your question.
Clevenger: Okay, I’m gonna go over your rights again.
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Clevenger then re-read defendant his Miranda rights, and defendant again indicated that he
understood them, including his right to an attorney. Clevenger again asked defendant whether he
wanted an attorney:
Clevenger: Okay. Do you want to have a lawyer present with you in this
room, while you’re being questioned by us? In reference.
Defendant: Not at this time.
Clevenger: Not at this time?
Hancock: Okay.
Clevenger: So what you’re saying is, you do not want to have a lawyer
right now?
Defendant: Not at this time.
Clevenger: And you’re gonna answer our questions?
Defendant: At this time.
Clevenger: At this time, okay. And you understand at any time during
this questioning.
Defendant: I can stop and ask for a lawyer.
Clevenger: Okay.
Defendant: Is that fa, is that fair?
Clevenger: That’s fair[.]
Defendant then answered the officers’ questions and volunteered information related to his
crime, largely confirming information he had already provided to the officers during his first
interview.
After a review of the interview transcripts, we conclude that defendant did not
unequivocally assert a right to counsel. Defendant, who admitted that he was intelligent and
experienced with the criminal justice system, turned himself in to the police before voluntarily
and unambiguously waiving his rights. After his initial 2½ to 3 hour long interview, he was
taken to a cell where he rested for more than 10 hours before requesting a second interview. At
the second interview, the officers took care to re-apprise defendant of his Miranda rights and ask
him to sign an additional waiver form, which defendant agreed to do. It was only after he had
indicated his willingness to waive his rights that defendant began asking the officers questions
regarding the possibility of having an attorney present for questioning that day. Upon receiving
information and having an opportunity to think, defendant then unequivocally indicated that he
understood his rights and wished to proceed without an attorney.
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Defendant’s questions to the officers clarifying the scope of his right to have an attorney
present did not constitute an unequivocal invocation of the right to counsel. Defendant’s
conversation with the officers makes clear that defendant knew of his right to counsel and knew
that requesting an attorney would stop the interview. But defendant chose nonetheless to
continue with the interview. Although at one point defendant responded directly to Clevenger’s
question of whether defendant wanted an attorney with, “Yes I do,” this utterance, in context,
was not sufficient to invoke the right to counsel and cut off all further questioning under the
specific circumstances in this case. Defendant initiated the interview and began the exchange
with the detectives regarding the right to counsel by asking if it was “possible” to have an
attorney. When defendant thereafter began offering information, the officers actually stopped
him and asked him again to consider whether he wanted a lawyer, explaining that they were
constitutionally bound to honor defendant’s rights and could not continue the interview without
an attorney if that was defendant’s decision.1 Defendant, who did not wish to return to his cell
and repeatedly stated that it was his wish to speak with the officers, then asked for “a moment”
to think. This request for time to consider his options clearly indicated that defendant’s previous
questions “were merely inquiries into the way the process worked, not an actual demand for an
attorney.” Adams, 245 Mich App at 238.
Further, when defendant subsequently indicated his intent to answer questions, the
officers re-read him his Miranda rights, for the third time, and asked him to verify that he was
voluntarily waiving his right to an attorney for the time being. Defendant again indicated that he
was. Not only did defendant fail to unambiguously invoke his right to an attorney, but in this
case, the officers engaged in “good police practice” by repeatedly and carefully clarifying
whether defendant actually wanted an attorney before moving on with their questioning. Davis,
512 US at 461.
Defendant’s contention on appeal that the officers went beyond merely trying to clarify
his words and instead pressured defendant to waive his right to counsel and to keep talking, is
unsupported by the factual record. The officers merely explained, in response to defendant’s
questioning, the various consequences that would arise from defendant’s decision to request an
attorney, and defendant was thereafter given the opportunity to weigh his options before the
officers would allow him to provide additional information. Indeed, the officers here went above
and beyond their obligations by seeking to clarify with defendant his ambiguous requests for
information. See id. at 459, 461 (explaining that when a suspect makes a reference to an attorney
that is ambiguous or equivocal, the police need not cease questioning or seek to clarify the
suspect’s reference to counsel). Further, inquiries aimed at determining whether a defendant has
reconsidered his request for an attorney do not constitute police-initiated interrogation and are
1
In the context of a suspect’s invocation of his right to remain silent, officers are not prohibited
from attempting to clarify statements that are ambiguous or confusing in context, even if in
isolation they appear unequivocal, such as defendant’s “yes I do” response in this case. See
People v Henry (After Remand), 305 Mich App 127, 172; 854 NW2d 114 (BOONSTRA, J.,
concurring in part and dissenting in part).
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not improper under Edwards. People v Kowalski, 230 Mich App 464, 479-482; 584 NW2d 613
(1998). As this Court has explained:
And police legitimately may inquire whether a suspect has changed his mind
about speaking to them without an attorney. It is not unusual for a person in
custody who previously has expressed an unwillingness to talk or a desire to have
a lawyer, to change his mind and even welcome an opportunity to talk. Nothing
in the Constitution erects obstacles that preclude police from ascertaining whether
a suspect has reconsidered his original decision. [Id. at 480, quoting Edwards,
451 US at 490 (citations omitted; emphasis added in Kowalski).]
Thus, Clevenger did not violate defendant’s right to an attorney when he sought to clarify for
defendant the procedures involved in requesting an attorney and the consequences of defendant’s
decision to invoke that right.
Even if we were to find that defendant had unambiguously requested an attorney, reversal
would not be required because defendant has failed to prove that the admission of defendant’s
subsequent inculpatory statements affected the outcome of defendant’s trial. Defendant clearly
and unambiguously confessed during his first interview to killing Hartman, and he does not
challenge that confession here. Although defendant offered some new information during his
second interview, such as his theft of Hartman’s ATM card, this new information was only
minimally probative, given defendant’s previous confession, and would have been presented to
the jury regardless of whether it came from his interview. Hartman’s ATM card was discovered
in the vehicle that defendant drove to the police station. Additionally, the statements showing
that the card had been used several times after Hartman’s death, and surveillance camera videos
depicting defendant attempting to use the card, would still have been presented to the jury. Thus,
defendant’s statement regarding the theft was unlikely to have had an effect on the jury’s
interpretation of the evidence. Additionally, although defendant stated during his second
interview that he had climbed on top of Hartman and placed his hand on her neck, he had also
suggested during his first interview that he had done so, although his memory was “fuzzy” at that
time.
Defendant asserts that “the jury used [defendant’s] unequivocal admission as a basis for
concluding beyond a reasonable doubt that [defendant] suffocated the decedent and that the
murder was therefore premeditated.” Defendant appears to argue that he unequivocally admitted
during his second interview to having smothered Hartman, and that it was the “admitted” act of
smothering that led the jury to believe that Hartman’s murder had been premeditated. This
argument lacks merit. First, defendant’s statements during the second interview regarding
allegations of smothering were hardly “unequivocal.”
Second, given the substantial evidence against defendant, it is unlikely that defendant’s
statements were the sole determining factor in the jury’s consideration of premeditation. The
evidence technician testified that she found a pillow next to Hartman’s bed, with blood on one
surface. The forensic scientists then testified that the blood on the pillow was Hartman’s, and
that Hartman’s saliva was also found on the stained portion of the pillow. They also opined that
the presence of defendant’s skin cells on the sides of the opposite surface of the pillow were
consistent with someone holding the pillow down over Hartman’s face. Finally, the medical
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examiner testified that Hartman had died of asphyxiation, most likely due to a pressured
obstruction to her airways, and that her stabbing wounds had been inflicted after her death. As
defense counsel acknowledged during closing arguments, “who’s going to dispute what [the
medical examiner] had to say? That’s the way she died.” Thus, even if it was necessary for the
jury to find that defendant had deliberately asphyxiated Hartman (rather than having stabbed her)
in order to find that Hartman’s death was premeditated, it is clear that the evidence presented at
trial supported the conclusion that defendant had asphyxiated Hartman.
III. OPINION TESTIMONY
Next, defendant argues that he was deprived of a fair trial when Clevenger was permitted
to give improper opinion testimony on the subject of defendant’s guilt. We disagree.
Defense counsel objected during defendant’s trial to certain statements, arguing that a
portion of Clevenger’s testimony was impermissible speculation. However, defense counsel did
not object to Clevenger’s testimony as impermissible opinion testimony. This issue is thus
unpreserved. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61
(2007). This Court’s review of unpreserved issues is limited to plain error affecting defendant’s
substantial rights. People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).
Defendant challenges certain statements made by Clevenger during his testimony on the
third day of defendant’s trial:
[Prosecutor]: And Detective Clevenger, you indicated -- a couple times in
your interview you told [defendant] when the interview obviously was a
somewhat lengthy interview that we saw, you said a couple times that you just
want to, quote: his statements to match up; I just want it to match up. And you
were at the crime scene, correct?
Clevenger: Yes.
Prosecutor: Based upon what you saw at the crime scene, comparing it to
what [defendant] was telling you, did his statements match up to the evidence that
you saw?
Clevenger: They did not match up. And it’s obvious that he -- he killed
her. He admitted that. But, you know, after he killed her, he -- he staged the
crime scene. And -- And what I mean by that is he didn’t have a car, so it wasn’t
like he could take her body somewhere else. You know, he had smothered her
with the pillow. The evidence at the scene suggested that, with the -- the stains on
the pillow right behind her head. The fact that her hands were behind -- behind
her like that, she was trying to push something or someone off her --
[Defense Counsel]: Excuse me. I’m going to object. This is speculation.
It is what it is --
Prosecutor: Your Honor, --
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Defense Counsel: -- in terms of what is in the record, the way the body is
displayed on the bed. But to speculate beyond that, that’s argument; and it’s fair
for argument but not for testimony from this witness.
Prosecutor: Your Honor -- Judge, I believe some of Detective
Clevenger’s responses are appropriate or necessary to explain why the interview
lasted as long as it did and why he kept asking him about the pillow and why he
kept asking him over and over again --
The Court: Yeah, but I don’t think it’s fair to speculate what she was
doing at that time.
Prosecutor: Absolutely your honor.
The Court: Okay?
Prosecutor: Thank you.
Defendant argues that through these statements, Clevenger provided impermissible opinion
testimony regarding defendant’s guilt, and that although the trial court sustained defense
counsel’s objection with regard to Clevenger’s speculation that Hartman was fighting someone
on top of her, Clevenger’s opinion that defendant smothered Hartman was still improperly
presented to the jury.
The issue of a defendant’s guilt or innocence is a question for the jury to resolve, People
v Suchy, 143 Mich App 136, 149; 371 NW2d 502 (1985), and a witness may not opine about the
defendant’s guilt or innocence in a criminal case, People v Heft, 299 Mich App 69, 81; 829
NW2d 266 (2012). However, any witness, including a police witness, is permitted to testify “in
the form of opinions or inferences” that are (1) “rationally based on the perception of the
witness,” (2) “helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue,” and (3) “not based in scientific, technical, or other specialized knowledge.”
MRE 701.
Here, it should be noted that it is impossible for Clevenger to have impermissibly opined
that defendant was guilty of some form of homicide in this case, as defendant conceded that he
had killed Hartman. And the trial court sustained defense counsel’s objection regarding
Clevenger’s speculation that Hartman was trying to push someone off of her. A fair reading of
the remainder of Clevenger’s testimony reveals that Clevenger was explaining his investigation
and his reasons for asking certain interview questions from his personal perspective. This type
of opinion testimony is expressly permitted under MRE 701. Clevenger did not testify regarding
defendant’s guilt in general, nor did he express an opinion about whether defendant had acted
with premeditation. Nor was his testimony similar to statements that this Court has concluded
are improper opinions about a defendant’s guilt. For example, in People v Bragdon, 142 Mich
App 197, 199; 369 NW2d 208 (1985), this Court found that a prosecutor’s brazen question to the
defendant, “So you’re guilty of a crime?” created an improper inference of guilt. In People v
Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975), a witness for the prosecution was
improperly allowed to testify that he had informed the defendant of his plan to not encourage
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their employer to rehire the defendant because the witness was convinced that the defendant was
guilty of robbing the employer. There was no such opinion or adoptive admission in this case,
nor was one elicited.
Indeed, Clevenger’s testimony was more similar to the challenged testimony of two
officers in Heft, 299 Mich App at 81-83. In Heft, the officers were permitted to testify at the
defendant’s trial that they had become suspicious of the defendant based on facts elicited by the
prosecuting attorney. Id. at 82. Specifically, they testified that the defendant’s explanation about
what he was doing near the crime scene seemed unreasonable and untruthful, so they placed him
in custody. Id. This Court found no impropriety, holding that the officers were not expressing
their opinions, but merely explaining the investigative process. Id. at 83. Here, as in Heft,
Clevenger was responding to the prosecutor’s questions regarding facts that had already been
elicited. Clevenger was not expressing his opinion of defendant’s guilt, but explaining the
conclusions he had drawn from his observations of the crime scene and the effect they had on his
investigation of defendant from that point. This was permissible.
Even assuming that Clevenger offered improper testimony, defendant has not shown that
any error affected the outcome of trial. Defendant’s contention that Clevenger’s testimony
“corroborated the medical examiner’s testimony,” highlights the fact that there was a wealth of
other evidence supporting the jury’s verdict. As previously discussed, the evidence of
defendant’s guilt included both physical evidence and expert opinion testimony supporting the
inference that Hartman’s death was caused by asphyxiation due to smothering; defendant’s own
statements during his first and second interviews also support such an inference. Defendant’s
suggestion that the jury would not have relied on all of this other evidence without hearing
Clevenger’s testimony is unpersuasive. Defendant has therefore not demonstrated plain error
affecting his substantial rights. Benton, 294 Mich App at 202.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was deprived of the effective assistance of counsel when
defense counsel failed to (1) file a motion to suppress defendant’s inculpatory statements, made
at the second interview, on the basis that the police officers had violated defendant’s Fifth
Amendment right to counsel, and (2) object to Clevenger’s improper opinion testimony at
defendant’s trial. Again, we disagree.
Defendant failed to preserve this issue by bringing a motion for new trial or for a
Ginther2 hearing with the lower court. People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008). This Court’s review of unpreserved ineffective assistance of counsel claims is limited to
mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
Whether a person has been denied effective assistance of counsel is a mixed question of law and
fact. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s findings
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional
issue arising from an ineffective assistance of counsel claim de novo.” Id.The right to effective assistance of counsel during a criminal trial is guaranteed by both
the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20.
“Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove
otherwise.” People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). Courts will not
second-guess trial counsel’s strategic decisions, People v Henry, 239 Mich App 140, 149; 607
NW2d 767 (1999), and defendant must overcome the strong presumption that his counsel’s
conduct was sound trial strategy, People v Douglas, 496 Mich 557, 585; 852 NW2d 587 (2014).
For a new trial based on ineffective assistance of counsel, defendant must show “(1) that defense
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and (2) that defense counsel’s deficient performance so prejudiced the
defendant that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” People v Fonville, 291 Mich App 363, 383;
804 NW2d 878 (2011), citing Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984).
We have already concluded that defendant’s claims of error regarding the violation of his
Fifth Amendment rights and the admission of the challenged portions of Clevenger’s testimony
fail. Defense counsel’s failure to object to either was therefore objectively reasonable.
“Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or
meritless motion.” People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).
Further, as previously discussed, neither the admission of defendant’s inculpatory
statements nor the prosecutor’s elicitation of Clevenger’s “opinion” testimony was likely to have
had an effect on the outcome of defendant’s trial. The jury was presented with all of the
evidence it needed to convict defendant of first-degree premeditated murder, even without the
evidence that defendant now challenges on appeal. There is nothing to show that the jury would
not have found defendant guilty as charged had it not considered the challenged testimony.
Without a showing of prejudice, defendant’s ineffective assistance of counsel claim must fail.
Fonville, 291 Mich App at 383.
IV. COURT COSTS
Lastly, defendant argues that the trial court’s order for defendant to pay $500 in court
costs lacked statutory authority, and was therefore improper. We disagree.
Defendant failed to preserve this issue by objecting at sentencing to the trial court’s
imposition of court costs. Carines, 460 Mich at 761-762. We review the unpreserved sentencing
error for plain error affecting defendant’s substantial rights. See People v Dunbar, 264 Mich
App 240, 251; 690 NW2d 476 (2004), overruled on other grounds by People v Jackson, 483
Mich 271 (2009).
A court may impose costs in criminal cases only where such costs are authorized by
statute. People v Cunningham, 496 Mich 145, 149; 852 NW2d 118 (2014), superseded by
statute as recognized in People v Terrell, 312 Mich App 450, 461; 879 NW2d 294 (2015), lv
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held in abeyance by People v Terrell, ___ Mich ___ (2016) (Docket No. 152470). In
Cunningham, the Michigan Supreme Court held that “MCL 769.1k(1)(b)(ii) provides courts with
the authority to impose only those costs that the Legislature has separately authorized by
statute,” and that courts therefore lacked the independent authority to impose court costs in
criminal cases. Id. at 158. However, as defendant acknowledges, the Legislature subsequently
amended MCL 769.1k through 2014 PA 352. The enacting sections of the amended statute
explicitly disavow Cunningham and are given retroactive effect:
Enacting section 1. This amendatory act applies to all fines, costs, and
assessments ordered or assessed under section 1k of chapter IX of the code of
criminal procedure, 1927 PA 175, MCL 769.1k, before June 18, 2014, and after
the effective date of this amendatory act.
Enacting section 2. This amendatory act is a curative measure that
addresses the authority of courts to impose costs under section 1k of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 769.1k, before the issuance of
the supreme court opinion in People v Cunningham, 496 Mich 145 (2014). [2014
PA 352.]
Defendant argues, however, that to the extent that the amendment of MCL 769.1k
retroactively authorizes the assessment of generalized court costs, the amendment violates state
and federal Ex Post Facto Clauses. US Const, art I, § 10; Const 1963, art 1, § 10. In People v
Konopka (On Remand), 309 Mich App 345, 370-376; 869 NW2d 651 (2015), this Court
thoroughly addressed and rejected numerous constitutional challenges to the amendment of
MCL 769.1k, including the same alleged ex post facto violations being claimed by defendant.
To the extent defendant argues that Konopka was wrongly decided, his argument lacks merit.
This Court is bound by its prior decisions. MCR 7.215(J)(1).
“When a new law makes clear that it is retroactive, an appellate court must apply that law
in reviewing judgments still on appeal that were rendered before the law was enacted, and must
alter the outcome accordingly.” Mayor of Detroit v Arms Technology, Inc, 258 Mich App 48,
65; 669 NW2d 845 (2003). By the plain terms of 2014 PA 352, the amended version of
MCL 769.1k applies to all fines, costs, and assessments imposed before June 18, 2014, and after
the effective date of October 17, 2014. Konopka, 309 Mich App at 357. Defendant was
sentenced, and the $500 in court costs imposed, on June 23, 2015. Therefore, the amended
statute applies and the court’s imposition of $500 in generalized court costs was proper.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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