People v. Gonzalez

• Docket Number: 360589
• Decision Date: 18 January 2024
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ALANA GEORGIENNE GONZALEZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ALANA GEORGIENNE GONZALEZ, Defendant-Appellant.

No. 360589

Court of Appeals of Michigan

January 18, 2024

UNPUBLISHED

Berrien Circuit Court LC No. 2020-001099-FC

Before: M. J. KELLY, P.J., and MARKEY and CAMERON, JJ.

PER CURIAM.

Defendant appeals by right her jury trial conviction of soliciting another person to commit murder. MCL 750.157b(2). The trial court sentenced defendant to 10 to 40 years' imprisonment. We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arose after defendant discovered her ex-husband, Elvin Gonzalez, was dating another woman. Defendant became enraged, and she sought a hitman to murder Elvin's girlfriend. She met Corey Parker at a liquor store and Parker later introduced her to Quacy Roberts. Defendant and Roberts exchanged many text messages over several months relating to defendant's plan to have Roberts murder the victim. Defendant also gave Roberts a written "agreement" stating that she would pay "1k down" and pay "5k if before 2/12/20" or "7k if before 2/1/20." She wrote that he should do the "Hit" at about 6:15 a.m. or 7:00 p.m. Defendant paid Roberts more than $1,000.

Roberts eventually reported the scheme to the Benton Township Police Department. A Berrien Circuit Court judge authorized a search warrant of defendant's home, where police officers seized a cell phone containing the text messages exchanged between defendant and Roberts. Defendant was arrested and charged with soliciting murder.

Because Elvin worked for the Berrien County courts, the judges there disqualified themselves, and the case was assigned to a visiting judge. The jury found defendant guilty and she was sentenced as noted. Defendant moved for a new trial, claiming that trial counsel was

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ineffective for failing to move to suppress the text messages and for failing to impeach two prosecution witnesses. The trial court entertained oral argument, but ultimately denied the motion. Thereafter, defendant filed this claim of appeal. She moved this Court for a remand to conduct an evidentiary hearing concerning whether trial counsel was ineffective, which we rejected. People v Gonzalez, unpublished order of the Court of Appeals, entered April 17, 2023 (Docket No. 360589).

II. VALIDITY OF THE SEARCH WARRANT

Defendant first argues that the search warrant used to seize her cell phone was invalid and therefore the text messages found on that phone should have been suppressed. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To preserve an issue for appellate review, defendant had to object in the trial court and specify the same ground for objection that she asserts on appeal. People v Clark, 330 Mich.App. 392, 414; 948 N.W.2d 604 (2019). Defendant concedes that she did not move to suppress the text messages because, in her view, the text messages were recovered under the authority of an invalid search warrant. Therefore, this claim of error is not preserved. Id.

"A trial court's findings of fact on a motion to suppress are reviewed for clear error, while the ultimate decision on the motion is reviewed de novo." People v Hrlic, 277 Mich.App. 260, 262-263; 744 N.W.2d 221 (2007). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v Blevins, 314 Mich.App. 339, 348-349; 886 N.W.2d 456 (2016). However, unpreserved claims of error are reviewed for plain error. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. An error affects substantial rights when it "affected the outcome of the lower court proceedings." Id.

B. LAW AND ANALYSIS

"The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime." Shadwick v City of Tampa, 407 U.S. 345, 350; 92 S.Ct. 2119; 32 L.Ed.2d 783 (1972). Accordingly, a judicial officer who issues a warrant must satisfy two tests. First, "[h]e must be neutral and detached ...." Id. And second, "he must be capable of determining whether probable cause exists for the requested arrest or search." Id. In this case, the judge who issued the search warrant of defendant's home was familiar with Elvin because they worked in the same circuit court. Defendant argues that this judge impliedly conceded that he was biased against defendant when he (1) admitted to being familiar with defendant and Elvin and (2) disqualified himself from the case after conducting defendant's arraignment.

"A defendant claiming judicial bias must overcome a heavy presumption of judicial impartiality." People v Jackson, 292 Mich.App. 583, 598; 808 N.W.2d 541 (2011) (quotation marks and citation omitted). Our Supreme Court has held that a judge is disqualified when he or she cannot hear a case impartially, which normally requires proof of actual bias. See Cain v Dep't of Corrections,

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451 Mich. 470, 494-497; 548 N.W.2d 210 (1996). However, "[c]ertain situations have been identified as requiring dismissal when the appearance of impropriety is too great even though no actual prejudice is shown." People v Payne, 424 Mich. 475, 478 n 3; 381 N.W.2d 391 (1985), quoting People v Lowenstein, 118 Mich.App. 475, 483; 325 N.W.2d 462 (1982). Those cases are rare and they arise when the "risk of actual bias is too prevalent, so that the constitutional guarantee . . . would be inhibited." Cain, 451 Mich. at 514. Such a case exists when there is a serious risk of actual bias premised on objective and reasonable perceptions. See MCR 2.003(C)(1); Caperton v AT Massey Coal Co, Inc, 556 U.S. 868, 884; 129 S.Ct. 2252; 173 L.Ed.2d 1208 (2009). Mere acquaintance with a party is not normally sufficient to warrant disqualification. See, e.g., Reno v Gale, 165 Mich.App. 86, 90; 418 N.W.2d 434 (1987) ("Although we recognize that in certain instances disqualification is necessary, we find no legal or ethical basis for such an action simply because a trial judge is acquainted with a party as a local practitioner.")

At defendant's arraignment, the judge noted that he had signed the search warrant for the case and was "somewhat familiar that one of the parties involved is a court administrator." The judge relayed that he planned to disqualify himself because he thought that "it could create an appearance of impropriety." The judge clarified that he knew defendant's "former husband" but that he had "never been to their house." He also stated that he had met defendant "in passing."

The record does not demonstrate that the judge had a relationship with anyone involved in this case that would justify disqualification. There is no evidence of actual bias arising from the judge's relationship with Elvin or defendant. See Cain, 451 Mich. at 494-497. Moreover, a mere acquaintanceship with another person-even a coworker-does not constitute the kind of relationship for which there is a serious risk of actual bias premised on objective and reasonable perceptions. See Caperton, 556 U.S. at 884. The judge's statements showed that he was minimally acquainted with Elvin, but that did not establish that the judge could not act as a neutral and detached magistrate for purposes of making a probable-cause determination. See Reno, 165 Mich.App. at 90. Accordingly, there is nothing in the record supporting defendant's argument that the judge who signed the search warrant was per se unqualified or disqualified from acting as a neutral and detached magistrate. Defendant has not shown that the trial court plainly erred when it failed to sua sponte suppress the fruit of the search because she has not shown the search warrant was signed by a person who was not qualified to act as a neutral and detached magistrate. See Carines, 460 Mich. at 763.

III. INEFFECTIVE ASSISTANCE

Defendant next argues various reasons she was denied effective assistance of counsel. None of these arguments warrants relief.

A. STANDARD OF REVIEW

Defendant's ineffective assistance of counsel claim "is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's conclusions of law are reviewed de novo and its findings of fact are reviewed for clear error. People v Shaw, 315 Mich.App. 668, 671-672; 892 N.W.2d 15 (2016). Because there was no evidentiary hearing to expand the record, this Court's review of defendant's ineffective assistance claim is limited to mistakes apparent on the record. See Clark, 330 Mich.App. at 425-426.

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B. LAW AND ANALYSIS

To establish a claim of ineffective assistance of counsel that warrants a new trial, defendant must show that trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that, but for trial counsel's deficient performance, there is a reasonable probability that the outcome of her trial would have been different. People v Haynes, 338 Mich.App. 392, 429; 980 N.W.2d 66 (2021). This Court strongly presumes that trial counsel acted within the wide range of reasonable professional conduct. Id. Indeed, "[i]f this Court can conceive of a legitimate strategic reason for trial counsel's act or omission, this Court cannot conclude that the act or omission fell below an objective standard of reasonableness." Id. at 429-430. "This Court will not substitute its judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel's competence." People v Loew, 340 Mich.App. 100, 120; 985 N.W.2d 255 (2022) (quotation marks, alteration, and citation omitted).

1. JUDICIAL...