People v. Haupt
| Decision Date | 23 September 2021 |
| Docket Number | 351593 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ALEXANDER JAMES HAUPT, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Clare Circuit Court LC No. 17-005731-FH
Before: Murray, C.J., and M. J. Kelly and O'Brien, JJ.
A jury convicted defendant of producing child sexually abusive activity, MCL 750.145c(2)(a); two counts of distributing or promoting child sexually abusive activity, MCL 750.145c(3)(a); possession of child sexually abusive material, MCL 750.145c(4)(a); four counts of using a computer to commit a crime, MCL 752.796; MCL 752.797(3)(d); and MCL 752.797(3)(f); and obstruction of justice, MCL 750.505. The trial court sentenced defendant to concurrent prison terms of 78 months to 20 years for the convictions of producing child sexually abusive activity and using a computer to commit the crime, 19 months to 7 years for the convictions of distributing or promoting child sexually abusive activity and using a computer to commit the crimes, 13 months to 4 years for the conviction of possession of child sexually abusive material and 19 months to 7 years for the conviction of using a computer to commit the crime, and 13 months to 5 years for the conviction of obstruction of justice.[1] Defendant appeals as of right. We affirm.
As part of an investigation of a September 9, 2017 stalking complaint filed against defendant by his former girlfriend, AM Sergeant Aaron Miller seized a cell phone from defendant. On September 12, 2017, Detective Donald VanBonn submitted an affidavit to search defendant's cell phone for evidence related to the stalking allegations. The magistrate concluded that there was probable cause for the warrant and authorized police to search defendant's phone for specific evidence relating to the stalking complaint, including evidence of electronic communications between defendant and AM. In part the warrant authorized a search of the metadata, file data, setting data, photographic and video data, and communication data for evidence of excessive amounts of communications between defendant and AM and for ownership of the phone.
Detective VanBonn extracted the digital data from the cell phone and loaded it into a software program called Cellebrite, which sorted the data into relevant categories such as contacts, call logs, calendars, e-mail, and photos, and each category of evidence was placed together. Cellebrite enabled the police to search for items outlined in the search warrant. On the basis of his experience and training, Detective VanBonn was aware that stalkers often take photos of their victims without their consent and that evidence of stalking might be found in the photo gallery of a phone. While searching the cell phone data for evidence related to stalking, Detective VanBonn observed what he believed to be child sexually abusive material. He terminated the search at that point. He submitted an affidavit for a second search warrant to search the device for evidence related to child sexually abusive material. The magistrate concluded that there was probable cause for the warrant on the basis of the attached affidavit and issued a warrant authorizing the police to search the cell phone data for evidence of child sexually abusive material. A search of the cell phone pursuant to the second warrant uncovered 42 images of AM naked or performing sexual acts, including vaginal-penile penetration and fellatio, that were taken by the cell phone on or within 24 hours of December 19, 2016, when AM was 17 years old, at the location where AM lived with her parents. The search also uncovered text messages and e-mails indicating that defendant took the images at the request of a third party and sold the images on at least two occasions. Additionally, the search uncovered an audio file containing a recording in which defendant tried to coerce AM to withdraw a pending criminal complaint that she had filed against him after he physically assaulted her and took her cell phone from her when she attempted to call police.
Defendant argues that the trial court denied him his Sixth Amendment right to counsel by allowing appointed counsel to withdraw without appointing substitute counsel. Defendant did not object when the court allowed counsel to withdraw and serve only in an advisory capacity, or when the court told defendant that he would have to represent himself. Therefore, this issue is unpreserved. See People v Cain, 498 Mich. 108, 114-115; 869 N.W.2d 829 (2015). Although defendant's claim that he was denied the right of counsel at a critical stage of criminal proceedings constitutes a claim of structural error, People v Russell, 471 Mich. 182, 194 n 29; 684 N.W.2d 745 (2004), a defendant is still not entitled to relief unless he or she can satisfy the four requirements set out in People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999), see Cain, 498 Mich. at 116, 117 n 4. The first three Carines prongs require establishing that (1) an error occurred, (2) the error was "plain"-i.e., clear or obvious, and (3) the error affected substantial rights-i.e., the outcome of the lower court proceedings was affected. Carines, 460 Mich. at 763. If the first three prongs are satisfied, the fourth Carines prong calls upon an appellate court to "exercise its discretion in deciding whether to reverse," and (4) relief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id.
A criminal defendant who faces incarceration has a constitutional right to counsel at all critical stages of the criminal process under the Sixth Amendment, which is applicable to the states through the Fourteenth Amendment. People v Williams, 470 Mich. 634, 640-641; 683 N.W.2d 597 (2004). Before allowing a criminal defendant to proceed pro se, the trial court must determine whether the request is unequivocal, whether the defendant is knowingly, intelligently, and voluntarily waiving the right to legal counsel, and whether the defendant's self-representation will disrupt, unduly inconvenience, or otherwise burden the court and the administration of justice. People v Anderson, 398 Mich. 361, 367-368; 247 N.W.2d 857 (1976). In addition, the trial court must comply with MCR 6.005(D), which provides:
"[I]f the trial court fails to substantially comply with the requirements in Anderson and the court rule, then defendant has not effectively waived his Sixth Amendment right to the assistance of counsel." Russell, 471 Mich. at 191-192. "Substantial compliance requires that the court discuss the substance of both Anderson and MCR 6.005(D) in a short colloquy with the defendant, and make an express finding that the defendant fully understands, recognizes, and agrees to abide by the waiver of counsel procedures." Russell, 471 Mich. at 191 (quotation marks and citation omitted).
The only period when defendant was without appointed counsel and proceeding in propria persona with advisory counsel was from the day appointed counsel was allowed to withdraw on June 10, 2019, until the day trial was to commence on July 23, 2019, when counsel was reappointed to represent defendant at trial. When appointed counsel was allowed to withdraw, defendant did not object to the withdrawal, but he also did not request to represent himself. The record indicates that the trial court failed to comply with the substance of Anderson and MCR 6.005(D).[2]
Nevertheless, even if the first three prongs of the plain error standard have been established, we conclude that reversal is not warranted under the fourth Carines prong. Carines, 460 Mich. at 763-764. Defendant does not claim that he is actually innocent, and we are not convinced that the trial court's plain error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. Id. "[T]he fourth Carines prong is meant to be applied on a case-specific and fact-intensive basis," Cain, 498 Mich. at 121, and reversal is not justified if the "underlying purposes" of the right at issue have been alternatively upheld. Id. at 119.
In People v Kammeraad, 307 Mich.App. 98, 130; 858 N.W.2d 490 (2014), this Court noted that "the right to assistance of counsel, cherished and fundamental though it may be, may not be put to service as a means of delaying or trifling with the court." Kammeraad recognized that a defendant may forfeit his right to counsel through "purposeful tactics and conduct that were employed to delay and frustrate the orderly process of the lower court's proceedings." Id. at 131, citing State v Mee, 756 S.E.2d 103, 114 (NC App, 2014). In other words, "willful conduct by a defendant that results in the absence of defense counsel constitutes a forfeiture of the right to counsel." Kammeraad, 307 Mich.App. at 131. Forfeiture is distinguishable from waiver. When a defendant forfeits the right to counsel, the court is not required to determine whether the defendant knowingly, understandingly, and voluntarily gave up his right. Id.
The defendant in Kammeraad forfeited his right to counsel by "refus[ing] to...
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