People v. DAVENPORT (AFT. REM.)

• Citation: 779 NW 2d 257,286 Mich. App. 191
• Decision Date: 03 November 2009
• Docket Number: Docket No. 271366.
• Court: Court of Appeal of Michigan (US)
• Parties: PEOPLE v. DAVENPORT (AFTER REMAND).

779 N.W.2d 257

286 Mich. App. 191

PEOPLE v. DAVENPORT (AFTER REMAND).

Docket No. 271366.

Court of Appeals of Michigan.

Submitted July 17, 2009, at Lansing.

Decided November 3, 2009, at 9:20 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Mark G. Sands, Assistant Attorney General, for the people.

Kirsch & Satawa, P.C. (by Mark A. Satawa, Southfield, Stuart G. Friedman, Plymouth, and Lisa B. Kirsch Satawa, Southfield), for defendant.

Before: SAAD, C.J., and MURPHY and DONOFRIO, JJ.

PER CURIAM.

I. TRIAL COURT PROCEEDINGS ON REMAND

This case is before us following a remand to the trial court for an evidentiary hearing on the question whether the prosecutor's office undertook adequate safeguards to shield the prosecuting attorney, Donald McLennan,¹ from communications about the case from Richard Steiger, an assistant prosecuting attorney who formerly represented defendant, Gary E. Davenport. Steiger acted as defense counsel for Davenport at his preliminary examination but, before trial, he accepted a job as the Presque Isle County assistant prosecutor. The prosecuting attorney's office employed only two attorneys, McLennan and Steiger, and McLennan prosecuted Davenport in the trial court.

In our prior opinion, People v. Davenport, 280 Mich.App. 464, 470-471, 760 N.W.2d 743 (2008), we addressed Davenport's claim that his trial counsel, Janet Frederick-Wilson, provided ineffective assistance² for failing to raise the issue of Steiger's move to the prosecutor's office:

We affirm the trial court's ruling that defense counsel's failure to raise this matter constitutes an objectively unreasonable error. Clearly, a potential conflict of interest arose when Steiger joined the prosecutor's office after representing defendant at the preliminary examination. Defense counsel was obligated to protect her client from the potential prejudice inherent in these circumstances. Had she raised a timely objection, the trial court would have been obligated to make an inquiry and fashion an appropriate safeguard.

We also agree with the trial court that defendant failed to show a reasonable probability that, absent defense counsel's error, the result of his trial would be different. However, because during the pendency of this case, defendant's former counsel joined the same two-attorney prosecutor's office that pursued the case against him, we hold that it was plain error for the trial court to fail to explore the matter and to make a ruling that the prosecutor's office employed appropriate safeguards to prevent Steiger from sharing information about defendant's case with McLennan. Indeed, when confronted by an apparent conflict of interest of this magnitude, it is incumbent upon the trial court to fully explore the matter to determine whether disqualification of the prosecutor's office is warranted and whether the failure to do so prejudiced defendant.

We further ruled that "once a defendant has shown that a member of the prosecutor's office counseled him or represented him in the same or related matter, a presumption arises that members of the prosecutor's office have conferred about the matter." Id. at 473, 760 N.W.2d 743. Accordingly, we remanded this case to the trial court for an evidentiary hearing. We further opined:

We emphasize that the prosecutor's office bears the burden of establishing that it implemented measures to prevent improper communications and that it consistently followed through with these measures. The trial court's inquiry must be thorough and in-depth, and take into consideration the prosecutor's failure to come forward with this matter voluntarily, and the office's ability to effectively quarantine the conflict of interest when the office employs only two attorneys. Unless the trial court finds sufficient evidence that the prosecutor's office consistently undertook adequate safeguards to shield McLennan from the taint of Steiger's conflict of interest, defendant's convictions must be reversed and a new trial ordered. Id. at 475-476, 760 N.W.2d 743 (citation omitted).

On remand, the trial court conducted a lengthy evidentiary hearing during which an assistant attorney general presented testimony from the staff members employed by the Presque Isle County prosecutor's office when Davenport's case was pending. We hold that the trial court correctly ruled that the prosecutor, through the assistant attorney general, established "that it implemented measures to prevent improper communications and that it consistently followed through with these measures." After reviewing the factors set forth in our prior opinion, the court ruled that, as a result of following the procedures employed by the office, Steiger exchanged no information with McLennan about any aspect of Davenport's case. Though the office maintained no written procedures about how to handle a potential conflict or the Davenport file in particular, it is abundantly clear that both attorneys and all staff members were informed and understood that Steiger was to have no contact with the Davenport file and that he would not participate in any discussions, interviews, or meetings about the case. Members of the staff all testified that, to their knowledge, Steiger had no contact with the case file and was not present for, and did not participate in, any discussions about the case. Both Steiger and McLennan testified that, after an initial discussion about the potential conflict in the Davenport prosecution if Steiger joined the prosecutor's office, they exchanged no information about the case. Moreover, McLennan testified that his investigation and interviews were completed before Steiger joined the prosecutor's office.

The record further reflects that Steiger immediately disclosed his decision to join the prosecutor's office to Davenport and his wife and he repeatedly assured them that he would not reveal to McLennan anything about his representation of Davenport. Though Davenport's subsequent attorney, Frederick-Wilson, denied that she knew about the conflict, McLennan testified that all the attorneys knew about Steiger's move to the prosecutor's office. Davenport's wife also testified that she received numerous letters from people in the community expressing concern when Steiger became the assistant prosecutor. Under these circumstances, while the prosecutor should have notified the trial court about the potential conflict, it also appears that the defense was aware of the issue and chose not to raise it until after the trial. As in our prior opinion, we reiterate that the trial court correctly concluded "that defense counsel's failure to raise this matter constitutes an objectively unreasonable error." Davenport, supra at 470, 760 N.W.2d 743.

We also hold that Davenport is not entitled to relief on this issue because he failed to show that he was prejudiced by defense counsel's error and, after the trial court explored the matter on remand, the record does not indicate that he was prejudiced by Steiger's move to the prosecutor's office. Again, the prosecution met its burden to show that the prosecutor's office took adequate steps to prevent improper communications and consistently followed through with those steps, and no evidence showed that there were any improper communications about the case.

II. DEFENDANT'S REMAINING CLAIMS

A. ASSISTANCE OF COUNSEL

Davenport claims that he was denied the effective assistance of counsel when Frederick-Wilson recommended that he waive a jury trial and when she rushed the case to trial.³ Davenport maintains that Frederick-Wilson did so because she wanted to finish the trial, and keep her retainer, before she was suspended from the practice of law on June 1, 2006. However, at the Ginther⁴ hearing, Frederick-Wilson denied that she attempted to fast-track the case and the trial court found no evidence that defense co...