People Of The State Of Mich. v. Davenport

• Decision Date: 05 August 2010
• Docket Number: No. 287767,LC No. 2007-000165-FC,287767
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ERVINE LEE DAVENPORT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v
ERVINE LEE DAVENPORT, Defendant-Appellant.

No. 287767
LC No. 2007-000165-FC

Court of Appeals of Michigan

August 5, 2010

Before: Stephens, P.J., and Gleicher and M. J. Kelly, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of first-degree premeditated murder. MCL 750.316. The trial court sentenced defendant to life in prison without the possibility of parole. Because we conclude that there were no errors warranting relief, we affirm.

Defendant first contends that he was denied his due process rights when the trial court required him to wear shackles during the trial. Although defendant's trial counsel requested that defendant's right hand be freed to enable him to write notes, defendant's trial counsel did not otherwise object to defendant being shackled. Therefore, this issue was not properly preserved before the trial court. See People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). This Court reviews unpreserved claims of constitutional error for plain error affecting substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

Generally, a defendant has a due process right to be free of shackles or handcuffs during trial. People v Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). However, this right is not absolute; a trial court may order a defendant to be restrained where it "is necessary to prevent escape, injury to persons in the courtroom or to maintain order." People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994). Although a trial court may order a defendant to be restrained during trial, it is well settled that a trial court may not do so as a matter of routine. See Deck v Missouri, 544 US 622, 627; 125 S Ct 2007; 161 L Ed2d 953 (2005) ("Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so."). And it is not sufficient that a law enforcement officer has expressed a preference for the use of restraints. People v Banks, 249 Mich App 247, 258; 642 NW2d 351 (2002). Instead, before a trial court can order a defendant to be restrained, it must make specific findings on the record and supported by record evidence that justify restraining the particular defendant. Deck, 544 US at 632 (noting that trial courts must take into account the circumstances of the particular case before ordering a defendant to be restrained). In this case, the trial court failed to make any findings on the

Page 2

record let alone findings that were supported by record evidence that warranted such an extreme precaution. Therefore, the trial court plainly erred. See Dunn, 446 Mich at 425.

Although it was error for the trial court to order defendant to be restrained without making the requisite findings, in order to warrant relief, defendant must still show that this error prejudiced his trial. People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008). Typically, a defendant will show prejudice by demonstrating that his restraints were visible to the jury. Id. at 36-37; see also Deck, 544 US at 635 (stating that shackling is inherently prejudicial and, for that reason, a defendant need not demonstrate actual prejudice in order to warrant relief where the defendant's restraints were visible to the jury).

Here, the trial court took precautions to ensure that the jury did not see the restraints: the trial court had a curtain placed around the defense table, instructed the parties on the procedures for standing, and had the shackles removed before defendant walked to the witness stand. Despite these procedures, defendant argues that the jury must have seen that his left hand was shackled on the basis of a video from the trial that purportedly shows that his wrist shackle was visible. The video does show a visible cuff around defendant's wrist. However, it is also clear that the video was recorded from a height. And there is no record evidence that the video accurately portrays the view from the position of the jurors. Because the video does not appear to portray the view from the jury box, we cannot conclude that the jurors actually saw the restraint on defendant's left wrist. Defendant has not shown that his restraints were visible to the jury and, for that reason, has not met his burden of showing prejudice. Horn, 279 Mich App at 37.

Even if we were to conclude that defendant demonstrated that his restraints were visible to the jury, this would not by itself warrant relief. Where a trial court orders a defendant to be visibly shackled without adequate justification, the error is still subject to harmless error review. Deck, 544 US 635. In order to be considered harmless, the prosecution must normally "prove 'beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.'" Id., quoting Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967); see also Lakin v Stine, 431 F3d 959, 966 (CA 6, 2005) (applying the harmless beyond a reasonable doubt standard to a shackling error and concluding that the error did not warrant relief because the error was harmless in light of the overwhelming evidence against the defendant). However, where as is the case here the constitutional error is unpreserved, the defendant bears the burden of proving that the shackling error prejudiced his trial. Carines, 460 Mich at 764; see also United States v Miller, 531 F3d 340, 346 (CA 6, 2008) (examining defendant's unpreserved claim that he was improperly restrained for plain error).

After carefully reviewing the evidence adduced at trial in light of the shackling error, we conclude that defendant has not demonstrated prejudice. Defendant's right hand was free throughout the trial and the jury saw defendant walk to the witness stand without restraints. Moreover, the trial court declined the prosecutor's request to have defendant shackled again after he testified. Thus, to the extent that the jury might have seen defendant's restraints, the exposure was quite limited. Given the substantial evidence of defendant's guilt, we conclude that any error in shackling defendant was harmless. See Carines, 460 Mich at 763-764. For the same reason, we cannot conclude that defendant's trial counsel's failure to properly object to defendant's shackles constitutes the ineffective assistance of counsel warranting relief. Defendant has failed to demonstrate that any deficiency in this regard prejudiced his trial.

Page 3

People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) ("To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different.").

Next, defendant contends that he was denied his constitutional right to a speedy trial. This Court reviews a defendant's claim of deprivation of speedy trial rights by balancing factors set forth in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). See People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). The following four factors are relevant to determining whether a defendant has been denied the right to a speedy trial: "(1) the length of delay, (2) the reason for delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." Id. Where a delay is less than 18 months, the defendant bears the burden of showing prejudice. Id. at 262.

In this case, defendant agrees that the delay was approximately 16 months and that he has the burden to show prejudice. Id. In examining the reasons for the delay, we note that many delays were the result of scheduling and docket issues, which weigh against the prosecutor but are given a neutral tint. Id. at 263. The remainder of delays slightly more than six months are attributable to defendant. On this record, we conclude that the reasons for the delay and the length of the delay do not weigh in favor of concluding that defendant was denied his right to a speedy trial. Id. We also do not agree that defendant...