People v. Aceval

Decision Date05 February 2009
Docket NumberDocket No. 279017.
Citation764 N.W.2d 285,282 Mich. App. 379
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Principal Attorney, Appeals, for the people.

Law Offices of David L. Moffitt & Associates (by David L. Moffitt), for the defendant.

Before: MURPHY, P.J., and K.F. KELLY and DONOFRIO, JJ.


Defendant pleaded guilty of possession with intent to deliver 1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i), and was sentenced to 10 to 15 years' imprisonment. Defendant then filed a delayed application for leave to appeal, which this Court denied1 and, subsequently, he sought leave to appeal in our Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court

for consideration ... of whether the defendant was denied the right to counsel of his choice under United States v. Gonzalez-Lopez, 548 U.S. 140, [126 S.Ct. 2557, 165 L.Ed.2d 409] (2006), and for consideration of whether the prosecution's acquiescence in the presentation of perjured testimony amounts to misconduct that deprived the defendant of due process such that retrial should be barred. [People v. Aceval, 480 Mich. 1108, 745 N.W.2d 749 (2008).]

We now consider these issues on remand2 and affirm.


This matter arises out of an illegal drug transaction. On March 11, 2005, police officers Robert McArthur, Scott Rechtzigel, and others, acting on information obtained from Chad William Povish, a confidential informant (CI), were on surveillance at J Dubs bar in Riverview, Michigan. Povish previously told police officers that defendant had offered him $5,000 to transport narcotics from Detroit to Chicago. That day, the officers observed defendant, Povish, and Bryan Hill enter the bar. Defendant arrived in his own vehicle, while Povish and Hill arrived in another. Eventually the three individuals left the bar and loaded two black duffel bags into the trunk of Povish's car. Povish and Hill then drove away, while defendant drove away in his own vehicle. Subsequently, the officers stopped both vehicles and found packages of cocaine in the duffel bags located in the trunk of Povish's car. Defendant was subsequently arrested and charged with possession with intent to deliver 1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i), and conspiracy to commit that offense, MCL 750.157a.

Before trial, defendant moved for the production of the identity of the CI. During an evidentiary hearing on June 17, 2005, defendant requested that the trial court, Judge Mary Waterstone, conduct an in camera interview of McArthur, the officer in charge of the investigation. The judge agreed, and in the conference it was revealed that McArthur and Rechtzigel knew that Povish was the CI. Further, the officer told the trial court that Povish was paid $100 for his services, plus "he was going to get ten percent, whatever we got." The conference was sealed and the trial court denied defendant's motion.

Subsequently, defendant filed a motion to suppress certain evidence. During a hearing on September 6, 2005, Rechtzigel lied when he testified, in response to defense counsel's questioning, that he had never had any contact with Povish before March 11, 2005. The prosecutor did not object. On September 8, 2005, in another sealed in camera conference between the judge and the prosecutor, the prosecutor admitted that she knew that Rechtzigel had knowingly committed perjury but stated that she "let the perjury happen" because "I thought an objection would telegraph who the CI is." In response, the judge stated that she thought "it was appropriate for [the witness] to do that." Further, the court added, "I think the CI is in grave danger.... I'm very concerned about his identity being found out."

The matter went to trial on September 12, 2005. At trial, the prosecutor and the judge continued their efforts to protect the CI's identity. Povish testified that he had never met Rechtzigel or McArthur before they stopped his vehicle on the day that he received the duffel bags and that neither had offered him a deal of any kind. He further testified that did not know what was in the duffel bags and that, until trial, he believed that he could be charged with a crime for his role in the incident. The prosecutor made no objection to this testimony. The prosecutor and the judge again indicated, in another sealed ex parte bench conference on September 19, 2005, that they knew Povish had perjured himself in order to conceal his identity. At the close of the trial, the jury was unable to reach a verdict and, thus, the trial court declared a mistrial.

On December 7, 2005, attorney Warren E. Harris filed an appearance to represent defendant in his retrial, again in Judge Waterstone's court. On March 6, 2006, attorney David L. Moffitt petitioned for leave to file a limited appearance solely for purposes of filing certain motions by defendant, which the trial court granted on March 17, 2006. Subsequently, at a hearing on March 28, 2006, defendant indicated that he had become aware that the CI was Povish and argued that the case should be dismissed because of the trial court's and the prosecutor's complicit misconduct in permitting perjured testimony. Defendant also requested that both the prosecuting attorney and Judge Waterstone disqualify themselves from the case. Judge Waterstone disqualified herself on the record. The following day, Judge Vera Massey-Jones, the successor judge, entered an order unsealing the three in camera interviews.

Twelve days before defendant's second trial, Harris moved to withdraw because of a breakdown in the attorney-client relationship that he attributed to Moffitt's increased involvement. After finding that Moffitt's appearance was only a limited appearance, the trial court, noting that it "can't deal with lawyers who aren't in the case all the way[,]" disallowed Moffitt from participating in the case and did not permit Harris to withdraw. The trial court stated, "And there's no way in the world I'm going to let you have a new trial lawyer come in here and mess up." Further, the trial court indicated that the matter was set for trial on a "particular date, and it's going to go to trial that date[,]" and that there was "no way I'm going to let" you "ruin my trial docket."

Defendant's retrial began on June 1, 2006, with Harris acting as counsel. Before trial, defendant allegedly contacted a prosecution witnesses and directed him to provide false testimony in support of the defense. After the prosecution discovered this information, it informed the trial court and defense counsel. Subsequently, the witness testified that defendant had asked him to lie and he purged his testimony. Thereafter, defendant pleaded guilty to the charge of possession with intent to distribute more than 1,000 grams of cocaine.


We first address whether defendant was denied the right to counsel of his choice under Gonzalez-Lopez, supra. Defendant did not preserve this argument by asserting it in the trial court. Because this issue is, at a minimum, unpreserved,3 our review is limited to plain error affecting defendant's substantial rights. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999).

Both the United States and Michigan constitutions provide that the accused shall have the right to counsel for his defense. US Const, Am VI; Const 1963, art 1, § 20. A defendant's right under the Michigan Constitution is the same as that guaranteed by the Sixth Amendment. People v. Reichenbach, 459 Mich. 109, 118, 587 N.W.2d 1 (1998). This guaranteed right encompasses a defendant's right to effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the right to self-representation, Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the right of indigent defendants to have appointed counsel in felony prosecutions, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the right to choice of counsel, Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932), which is at issue in this case.

The United States Supreme Court recently expounded upon a defendant's right to choice of counsel in Gonzalez-Lopez, supra. The Court stated, "[The Sixth Amendment] commands ... that the accused be defended by the counsel he believes to be best." Gonzalez-Lopez, supra at 146, 126 S.Ct. 2557. The Court continued, "Deprivation of the right is `complete' when the defendant is erroneously prevented from being represented by the lawyer he wants...." Id. at 148, 126 S.Ct. 2557 (emphasis added). It is not necessary that a defendant show prejudice; it is enough that a defendant merely show that a deprivation occurred. Id. at 150, 126 S.Ct. 2557. However, this right to choice of counsel is limited and may not extend to a defendant under certain circumstances. Id. at 151, 126 S.Ct. 2557; Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). As the Gonzalez-Lopez Court stated:

[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U.S., at 159, 108 S.Ct. 1692, 100 L.Ed.2d 140; Caplin & Drysdale [v. United States], 491 U.S. [617], at 624, 626, 109 S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 528 [1989]. Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U.S., at 159-160, 108 S.Ct. 1692, 100 L.Ed.2d 140. We have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of...

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    ...pleaded guilty to the charge of possession with intent to distribute more than 1,000 grams of cocaine.People v. Aceval (On Remand), 282 Mich.App. 379, 382–385, 764 N.W.2d 285 (2009). Following sentencing, Petitioner was twice appointed appellate counsel, but both attorneys withdrew before a......
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