People v. Herron

• Decision Date: 12 December 2013
• Docket Number: Docket No. 309320.
• Citation: 845 N.W.2d 533,303 Mich.App. 392
• Parties: PEOPLE v. HERRON.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 392

845 N.W.2d 533

PEOPLE

v.HERRON.

Docket No. 309320.

Court of Appeals of Michigan.

Submitted Oct. 1, 2013, at Marquette.

Decided Dec. 12, 2013, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Daniel E. Hass, Prosecuting Attorney, and Mark G. Sands, Assistant Attorney General, for the people.

State Appellate Defender (by Christine A. Pagac) for defendant.

Before: RIORDAN, P.J., and MARKEY and KIRSTEN FRANK KELLY, JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering with intent to commit a larceny, MCL 750.110, and possession of burglary tools, MCL 750.116. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 6 years and 4 months to 20 years' imprisonment. He appeals by right. We affirm.

On January 3, 2011, police responded to a call about a possible break-in of a Menominee beauty salon. Upon arriving, a police officer shined a spotlight on the building and saw defendant inside. Defendant fled, discarding a tire iron as he ran. He was apprehended soon thereafter. At trial, defendant did not dispute that he had broken into the salon using the tire iron; however, he claimed that he did not have the necessary intent to commit a larceny to convict him of the breaking and entering charge.¹ Instead, defendant claimed the break-in was a “cry for help” because he wanted to be arrested so he could receive help for mental health problems he had long suffered from. He testified that he was at a friend's house on the night of the break-in and “told everyone there, ‘I can't deal with this, and I'm going to go get arrested.’ ”

For his sole issue on appeal, defendant asserted a claim of ineffective assistance of counsel and filed a motion to remand to the trial court under MCR 7.211(C)(1) in order to develop a factual record. He named three persons as potential witnesses that his trial counsel never contacted who could, he asserted, have provided information relevant to his defense theory. The three are Natasha Fuller (defendant's girlfriend at the time of the break-in), Shane Sullivan, and Lisa Christensen (Sullivan's ex-wife). We granted the motion. All three identified witnesses were called to testify, along with defendant's trial counsel and defendant's brother, William Herron. The trial court denied defendant's motion for a new trial.

Defendant argues he was deprived of his right to effective assistance of counsel by trial counsel's failure to investigate and call witnesses who would have corroborated his claim that he did not intend to commit larceny when he broke into the salon. “Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). Findings of fact are reviewed for clear error, while questions of constitutional law are reviewed de novo. Id.

The Sixth Amendment of the United States Constitution and Article 1, § 20 of the Michigan Constitution guarantee the right to effective assistance of counsel for criminal defendants. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Pubrat, 451 Mich. 589, 594, 548 N.W.2d 595 (1996). To establish that his counsel did not render effective assistance and therefore that he is entitled to a new trial, “defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different.” People v. Trakhtenberg, 493 Mich. 38, 51, 826 N.W.2d 136 (2012). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v. Solmonson, 261 Mich.App. 657, 663, 683 N.W.2d 761 (2004).

When determining whether counsel's performance fell below an objective standard of reasonableness, defense counsel is given “wide discretion” to decide questions of “trial strategy.” People v. Heft, 299 Mich.App. 69, 83, 829 N.W.2d 266 (2012). Thus, whether to call witnesses is presumed to be a matter of trial strategy. People v. Russell, 297 Mich.App. 707, 716, 825 N.W.2d 623 (2012). Nevertheless, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–691, 104 S.Ct. 2052. “The failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome.” People v. Grant, 470 Mich. 477, 493, 684 N.W.2d 686 (2004).

Defense counsel testified that his trial strategy centered on negating the element of intent. Of the identified witnesses, defendant's trial counsel said that he sent a letter to Fuller. Although counsel stated that he also sent a letter to defendant's brother, William, both denied receiving the letters. Neither Christensen nor Sullivan was sent a letter because defendant did not provide counsel a mailing address. There is no indication that counsel followed up with either William or Fuller, and he took no steps to locate either Christensen or Sullivan.

Presiding as fact-finder at the evidentiary hearing, the trial court was positioned to assess the credibility of the witnesses. See People v. Cress, 468 Mich. 678, 692, 664 N.W.2d 174 (2003); MCR 2.613(C). Thus, the court could have rejected the testimony of William Herron and Fuller that they did not receive the letters counsel sent. And counsel's office apparently received a communication from Fuller that she did not want to become involved in the trial. Defendant does not explain how counsel could have located Christensen and Sullivan without defendant's providing further information about their whereabouts. In any event, Sullivan was apparently living with William Herron at the time of trial, and assuming that the letter to William arrived, Sullivan would likely have been put on notice that defendant was looking for people who could testify about his mental state before the break-in.

As for Christensen, she testified that trial counsel frequented the restaurant where she worked; however, there is no evidence that defense counsel was aware that she worked there, or even knew who she was. Christensen testified that her last name was Sullivan when she and Shane were married. Defense counsel testified that he knew Sullivan had a wife named Lisa, but he did not know her last name was Christensen. In fact, counsel testified that he had never heard the name Lisa Christensen until the day before the evidentiary hearing. He also testified that he did not see her name in any of the correspondence he had received from defendant. And if Christensen did know who defense counsel was and desired to testify, she could have approached counsel in the restaurant.

Under these circumstances, defense counsel's actions were objectively reasonable.

Further, defendant has failed to establish that there is a reasonable probability that the outcome of the trial would have been different had counsel tried the case differently. None of defendant's proffered witnesses would have corroborated his claim that he did not have the intent to commit a larceny. While they testified that defendant seemed to have mental health problems and had commented in the past that he was more comfortable and coped better in jail, none of the witnesses testified that defendant told them he planned to be arrested. Hence, their testimony would have conflicted with defendant's own testimony that he claimed he had told several people that night “I can't deal with this, and I'm going to go get arrested.” Thus, the missing witnesses' testimony would have discredited defendant's defense.

Defendant testified that he approached the salon from behind and parked his bike behind the store. He was dressed in black. He removed and discarded a screen behind the salon and used a tire iron to pry open a window. It is reasonable to infer from this evidence that defendant planned the break-in and had taken steps to avoid detection. As he was fleeing the police, he tossed the tire iron. Then later, when asked if he were trying “to conceal evidence,” he responded, “Yes.” So, again, it is unlikely that the proposed testimony would have negated the effect of this evidence and the reasonable inferences that arise from it. See People v. Goodin, 257 Mich.App. 425, 432, 668 N.W.2d 392 (2003) (observing that evidence of flight supports an inference of “consciousness of guilt” and that the term “flight” includes fleeing the scene of the crime). Consequently, counsel's actions in trying the case do not create doubt about the outcome of the trial. Grant, 470 Mich. at 493, 684 N.W.2d 686.

Defendant also argues in a supplemental brief that in light of Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), judicial fact-finding using Michigan's sentencing guidelines, see MCL 769.34(2) and MCL 777.1 et seq., as a guide to determine a minimum term of an indeterminate sentence from a recommended range violates the Sixth and Fourteenth Amendments of the United States Constitution. We disagree. “We review de novo questions of constitutional law.” People v. Harper, 479 Mich. 599, 610, 739 N.W.2d 523 (2007).

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that the Sixth and Fourteenth Amendments of the United States Constitution limited the ability of judges to increase the maximum punishment of individuals convicted of crimes on the basis of judicial fact-finding. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Subsequently, in Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159...