People v. Carbin, Docket No. 114799, Calendar No. 6.

CourtSupreme Court of Michigan
Citation623 N.W.2d 884,463 Mich. 590
Docket NumberDocket No. 114799, Calendar No. 6.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steve CARBIN, Defendant-Appellant.
Decision Date03 April 2001

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and James M. Surowiec, Assistant Prosecuting Attorney, Detroit, MI, for the people.

David R. Cripps, Detroit, MI, for the defendant-appellant.

Opinion

CORRIGAN, C.J.

We granted leave to consider defendant's claim that he was denied the effective assistance of trial counsel. The trial court, acting as trier of fact, found defendant guilty of first-degree criminal sexual conduct, M.C.L. § 750.520b; MSA 28.788(2), and sentenced him to a five to fifteen year term of imprisonment. After a Ginther hearing1 ordered by the Court of Appeals, the trial court denied defendant's motion for a new trial. The Court of Appeals then affirmed defendant's conviction in an unpublished opinion.2 We affirm the judgment of the Court of Appeals. Defendant was not denied the effective assistance of trial counsel.

I. FACTUAL AND PROCEDURAL BACKGROUND

The victim, a woman in her mid-thirties, worked at a private recreation center in Detroit. On the evening of February 11, 1994, she stayed at work to close the facility. Sometime shortly after 9:00 p.m., when she believed that she was alone, she was attacked by two men who remained inside the building. One of those men forcibly raped her. At trial, the victim identified defendant as the man who raped her. She could not identify her other attacker. Defendant's trial counsel argued that the victim identified the wrong man and that defendant could not have committed the crime because he had been locked inside the Detroit Psychiatric Institute at the time the crime occurred.

The victim testified that she saw defendant's face in the light for one minute when the attack began and then again for five or ten minutes during the rape itself. She recognized defendant as one of the members of the recreation center. Although she did not know his name, she explained that she had seen him around the center before the rape:

Q. How is it that you know [defendant] from the past?
A. Because he's a member at the center. He came upstairs when we had the floor exercise, and I had to get the supervisor one time to ask him to leave. And he left and stayed gone for awhile. Then he came back to the center, he came back up again the night of the floor exercise, and the exercise instructor she came back to the ceramics table and she said that the ladies were uncomfortable and could I have the young man to leave. And I went and told [the supervisor] again that he was upstairs and the ladies wanted him to leave.

The victim also explained that defendant frequently came to the recreation center to swim hours before the pool was scheduled to open and waited outside or in the lobby. When the pool opened, defendant entered, but stayed at the shallow end.

The police did not immediately locate defendant because the recreation center did not have a picture of him. After the February assault, the victim did not return to work at the recreation center until May. She did not see defendant at the recreation center until September 1994. When she first saw defendant at the recreation center after the rape, she immediately panicked and left the building. By the time she called the police from her house, the center had already closed for the evening. The next day, defendant once again came to the recreation center. This time, staff members alerted the police and defendant was arrested.

In addition to the victim's testimony, the prosecutor presented the testimony of the victim's friend, who arrived at the recreation center shortly after the rape and called the police, and two police officers who responded to the initial call. One of the police officers testified that they got the run at 9:35 p.m. and that they arrived at 9:40 p.m. The victim, who appeared shaken, told the officers that she had been assaulted by two men, one of whom she knew.

Defendant's only witness at trial was Yvonne Bond, director of medical records at the Detroit Psychiatric Institute. Bond testified that the institute's medical records indicated that defendant had been involuntarily hospitalized at the institute on the day of the crime. The records showed that defendant was present at 5:55 p.m. and 10:30 p.m. on that day and that he was "locked up" and "couldn't get out" during the interim hours.

On cross-examination, Bond admitted that patients had escaped from the Detroit Psychiatric Institute in the past. She also explained that patients were not locked in their individual rooms. Thus, she admitted, it was "conceivable" that a patient could leave the sixth-floor psychiatric unit by making it past one set of locked doors to a hallway and a stairway leading down to the first floor exit. In addition to the stairway, a locked elevator could be accessed if the door happened to open while the elevator was in use.3

Regarding the medical records, Bond explained that detailed notes reflected defendant's activities at the institute between the hours of 7:00 a.m. and 3:30 p.m. on the day of the crime. These particular notes ceased at 3:30 p.m., which was the end of a shift. She also explained that the 10:30 p.m. notation indicated that a nurse had given defendant a certificate in his room. While she was never asked to explain her assertion that defendant was present at 5:55 p.m., Bond did testify that a record showed that a doctor had seen defendant at 5:10 p.m.

In making its findings of fact and conclusions of law, the trial court initially recounted the victim's testimony in detail. The judge explained that he believed the victim's testimony "just from listening to her." Her identification testimony was credible because she was familiar with defendant's face from previous observations. Finally, the trial court explained that the victim displayed no bias against the defendant that would have prompted her to falsify the story.

In rejecting defendant's alibi defense, the court opined that the detailed notes regarding defendant's whereabouts from 7:00 a.m. to 3:30 p.m. on the day of the crime established an "ironclad alibi" only for that specific period of time. In contrast, defendant had presented no records to establish conclusively his presence at the institute when the crime was committed. Regarding the institute's security measures, the trial court found that it was "not a lock down facility like the Wayne County Jail where there are guards and the like." Accordingly, the trial court reasoned that it was "just speculation" that defendant could not have left the facility to commit the crime. The trial court thus concluded that the prosecution had proven beyond a reasonable doubt that defendant was guilty of the crime of first-degree criminal sexual conduct. After trial, while defendant's claim of appeal was pending, defendant's first appellate counsel moved for defendant's release on bond pending appeal. In response to the bond motion, the trial court took testimony for purposes of assessing the substantiality of defendant's grounds of appeal. Barbara Pettibone, a clinical social worker at Detroit Psychiatric Institute, testified at the bond hearing that defendant, whom she recognized, had been involuntarily admitted to the institute at 1:30 p.m. on February 11, 1994, the day of the crime, and discharged on March 14, 1994. She explained that the institute was a "locked facility," which meant that a person attempting to enter from the outside would ordinarily have to pass through either three locked doors or one keyed elevator and one locked door-except during visiting hours from 6:30 p.m. to 8:00 p.m. when the doors were not locked. Pettibone also testified that she could not remember if she had previously been contacted by any other lawyer.

On cross-examination, Pettibone explained that the staff routinely conducted a bed check each night "around" 11:00 p.m., but that she was not positive regarding the exact time this was usually done. She also acknowledged that no one could conclude with certainty whether a new patient such as defendant, who may not have been well-known to the staff after the afternoon shift change, "left or stayed" during the visiting hours. Finally, Pettibone noted that maintenance workers were present at the facility with keys to the locked doors. After hearing Pettibone's testimony, the trial court granted defendant's motion and set bond in the amount of $25,000.4

The Court of Appeals thereafter granted defendant's motion to remand to the trial court for a Ginther hearing. The trial court once again took testimony from Pettibone regarding the security measures in place at the Detroit Psychiatric Institute. In response to direct questioning from defendant's second appellate counsel, Pettibone testified that she recalled seeing defendant at the institute on the day he was admitted. In contrast to her testimony at the bond hearing that defendant had been admitted at 1:30 p.m. on February 11, 1994, Pettibone explained that the nursing notes indicated that defendant came to the facility at 7:00 a.m. on that day and was present through at least 3:00 p.m. She also stated, more conclusively than in her testimony at the bond hearing, that a bed check had occurred at 11:00 p.m.

With respect to the institute's security, Pettibone explained that defendant would have been kept in a locked ward, behind at least two locked doors. While acknowledging that patients have escaped in the past, she opined that it would be "very difficult," but "not impossible," for a person to escape, and "impossible" to get back in through the "two or three locked doors" without a key or "having the door opened for them." Pettibone also explained that the...

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