People v. Boles

• Decision Date: 19 October 1983
• Docket Number: Docket No. 63736
• Citation: 127 Mich.App. 759,339 N.W.2d 249
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony BOLES a/k/a Dickie a/k/a Robert Allen, Defendant-Appellant. 127 Mich.App. 759, 339 N.W.2d 249
• Court: Court of Appeal of Michigan — District of US

Page 249

339 N.W.2d 249

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony BOLES a/k/a Dickie a/k/a Robert Allen Defendant-Appellant.

Docket No. 63736.

127 Mich.App. 759, 339 N.W.2d 249

Court of Appeals of Michigan.

Submitted May 24, 1983.

Decided Aug. 2, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 761] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the People.

Melissa Z. El, Detroit, for defendant-appellant.

Before CYNAR, P.J., and J.H. GILLIS and WAHLS, JJ.

PER CURIAM.

Defendant was convicted by a jury of manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. He was sentenced to 10 to 15 years imprisonment and appeals as of right.

This prosecution arose from the fatal stabbing of Marvin Davis, which occurred during the evening hours of August 5, 1981, in an alley adjacent to [127 MICHAPP 762] 6919 Frederick in Detroit, Michigan. Tanitha Pierce, defendant's girlfriend and the mother of his child became embroiled in an argument with her mother, Emma White, concerning the quality of care rendered by Tanitha's babysitter. The deceased, who was Emma White's boyfriend, intervened in the argument which touched off a confrontation between defendant and the deceased.

Nine-year-old Hershell Howell was on the back porch of his home when he heard the argument between defendant and Marvin Davis. According to Hershell, defendant said: "I'm tired of you, Marvin", and started stabbing him. Another man present with defendant knocked Marvin Davis down. Davis fell but struggled to stand up and run. Defendant stabbed Davis several more times, whereupon he fell a second time. Barbara Davis saw a part of the confrontation, though it appeared to her that the two men were beating Davis with their fists.

The medical examiner found three stab wounds closely grouped in the deceased's upper chest and one in the right front portion of his abdomen. He also discovered seven distinct stab wounds of lesser significance on the deceased's legs, right arm and hands.

The theory of the defense, as reflected in opening statement, was that defendant stabbed Davis in self-defense. Defendant testified that Davis had rushed him and seized him by the throat and that he had retreated but that Davis reached for a knife. Defendant further testified that, believing his life to be in danger, he went for his own knife and lashed out at his attacker. Defendant could not explain how Davis had been stabbed so many times.

Defendant raises four issues on appeal, which we discuss in the order raised.

[127 MICHAPP 763] Defendant first claims that the trial court erred in allowing the testimony of an unendorsed prosecution witness to rebut the testimony of witnesses she had listened to in violation of a sequestration order. Part of the defense strategy had been to elicit testimony from res gestae witnesses concerning the deceased's reputation in the community as a violent person. Defense counsel was broadly permitted to inquire into specific instances of the deceased's conduct pursuant to MRE 405(b). Under the authority of this rule, both Tanitha and Emma White testified that they had heard that the deceased had stabbed his former wife, Ernestine Davis, causing her to lose her baby. When the prosecutor objected on hearsay grounds, the court advanced what appeared to be a simple solution: "Why don't you call his wife and ask her?"

Defendant objected, initially because Ernestine Davis had not been endorsed as a witness and later because Davis had been present in the courtroom despite the issuance of a blanket sequestration order. This objection being overruled, Ernestine Davis stated that, while her husband did stab her, she was not pregnant at the time.

Defendant's brief on appeal suggests that any testimony taken in contravention of a sequestration order constitutes reversible error, at least where defendant has been prejudiced by the admission of this testimony. This is in fact not the case. Whether to exclude a witness who has violated a sequestration order is within the trial judge's discretion. People v. Adams, 122 Mich.App. 759, 333 N.W.2d 538 (1983); People v. Cyr, 113 Mich.App. 213, 231, 317 N.W.2d 857 (1982), lv. den. 414 Mich. 888 (1982); People v. Boose, 109 Mich.App. 455, 311 N.W.2d 390 (1981). We find no evidence of abuse of discretion for several reasons. Initially, [127 MICHAPP 764] there was no attempt on the part of either the witness or the prosecution to openly defy the sequestration order. As defendant admits on appeal, the witness had not been endorsed on the information. Certainly this was not a witness that the prosecution anticipated calling, and her testimony was introduced only to rebut testimony concerning a specific prior act of the deceased elicited by defense counsel's cross-examination. Secondly, the testimony contradicted by Ernestine Davis should not have been introduced into evidence in the first place.

MRE 404(a)(2) provides that evidence of a pertinent trait of character of the victim of a crime may be offered by an accused. This is consistent with prior Michigan law to the extent that it permits an accused claiming self-defense in a homicide case to offer proof that the alleged victim had a reputation as a violent person. People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961). Additionally, MRE 405(b) provides that, in cases in which the character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. Michigan courts have, however, recognized that such specific instances of conduct must have been known to the defendant. In People v. Perez, 66 Mich.App. 685, 693, 239 N.W.2d 432 (1976), lv. den. 397 Mich. 824 (1976), the defendant argued that the trial court had improperly excluded testimony that one of the complainants was involved in a knife fight the day before the charged incident. This Court noted that, unless the defendant could show that he knew of that incident or that it was directly connected with the homicide, the evidence should be excluded. See also People v. Kerley, 95 Mich.App. 74, 79, 289 [127 MICHAPP 765] N.W.2d 883 (1980), lv. den. 411 Mich. 868 (1981); People v. Knott, 59 Mich.App. 105, 228 N.W.2d 838 (1975). Testimony from persons other than defendant concerning specific violent acts committed by the deceased was, therefore, objectionable absent some showing that defendant also knew of the incidents. This showing was not made.

Defendant's contention that his theory of self-defense was prejudiced by admission of the evidence is not persuasive. The record contains considerable testimony concerning the reputation of the deceased as a violent person, and Ernestine Davis admitted that the deceased had stabbed her with a knife. Even the prosecutor, in closing argument, conceded that the deceased had pulled knives on people and that the deceased had stabbed both Emma White and Ernestine Davis. Finally, the trial court brought to the jury's attention the fact that Ernestine Davis had been present in the courtroom during prior testimony. The jury was free to use that piece of information in assessing Ernestine Davis's credibility.

Defendant next asserts that he was denied effective assistance of counsel, principally because his trial counsel acknowledged on the record that he had a hearing impairment.

Claims that a criminal defendant was denied effective assistance of counsel due to a hearing defect are not common, and neither party on appeal has provided any direct authoritative guidance on this issue. See 74 A.L.R.2d 1390, 1420-23, superseded by 2 A.L.R.4th 27, 203-210. Our research has not revealed a case in which a trial counsel's hearing impairment alone sufficed to constitute ineffective assistance of counsel. In United States ex rel. Castleberry v. Sielaff, 446 F.Supp. 451 (N.D.Ill.1978), the defendant's appointed counsel was [127 MICHAPP 766] 72 years old and in poor health. Counsel suffered from impaired vision, and his hearing was severely impaired as evidenced by numerous instances during the trial where he asserted his inability to hear the testimony of the witnesses and the closing argument of the assistant prosecutor. However, the record contained numerous other indicia of ineffective assistance. Counsel had entered the case on the day of trial, had offered no pretrial motions or requests, was ignorant of the granting of a severance motion made by his predecessor, openly acknowledged little if any experience in criminal defense work, and made irrelevant and foolish comments during his opening statement and closing argument. In finding that the defendant had been denied effective assistance of counsel, the Sielaff court did not single out any of the above factors as dispositive of the case. Sielaff, supra, p. 454. In this respect, the case resembles that of United States v. Rogers, 471 F.Supp. 847 (E.D.N.Y.1979), in which, aside from an obvious hearing impairment, counsel failed to pursue discovery, failed to move for a bill of particulars, exhibited a general lack of preparation for trial, and failed to abide by rulings of the trial court.

One case in which an ineffective assistance of counsel claim was based entirely on a claim that counsel could not hear properly is People v. Bell, 95 Ill.App.3d 803, 51 Ill.Dec 83, 420 N.E.2d 497 (1981). There the court determined that there was no evidence that counsel's very slight loss of hearing prevented him from effectively representing defendant. Alternatively, the court determined that any possible problem had been cured when the trial judge appointed public defenders to sit with defense counsel during trial. 95 Ill.App.3d 805, 51 Ill.Dec. 83, 420 N.E.2d 497. The Bell court's analysis is, however, cursory; more helpful [127 MICHAPP 767] is the discussion of the...