People v. Horn

Decision Date15 May 2008
Docket NumberDocket No. 274130.
Citation755 N.W.2d 212,279 Mich. App. 31
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin Scott HORN, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Marla R. McCowan) and Marvin S. Horn in propria persona.

Before: WILDER, P.J., and SAAD, C.J., and SMOLENSKI, J.

SAAD, C.J.

A jury convicted defendant of kidnapping, MCL 750.349, and four counts of first-degree criminal sexual conduct, MCL 750.520b. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to five concurrent sentences of 40 to 60 years in prison.

I. Nature of the Case

Defendant perpetrated a series of physical and sexual attacks on his estranged wife that culminated in an attempt to have her murdered while he was incarcerated for the kidnapping and criminal sexual charges at issue here. Defendant challenges his convictions for abducting his wife and repeatedly raping her and, for the reasons stated in this opinion, we affirm his convictions without difficulty. Defendant also complains that the trial court failed to articulate a substantial and compelling reason to justify its upward departure from the recommended minimum sentence range under the sentencing guidelines. The trial court stated that "the particular danger" that defendant presented to his wife justified an increased sentence because this danger was clear from defendant's pattern of extreme violence against his wife, and the guidelines do not take into consideration a defendant's determined course of targeting a specific victim. Defendant mischaracterizes this finding as "speculation" concerning defendant's propensity for future criminal acts, and avers that this is not an objective or verifiable reason for the departure. Defendant's assertion fails to appreciate the salient and dispositive distinction between a general criminal propensity and, as here, an actual, established pattern and practice of repeatedly victimizing a targeted individual. The trial court's observation and conclusion that defendant repeatedly targeted his wife and poses a grave danger to her is based on compelling and concrete evidence, namely, defendant's repeated and relentless efforts to harm her, his vicious assaults upon her, and his efforts to kill her. Thus, contrary to defendant's characterization of the sentencing decision, the trial court did not engage in speculation or rely on nonobjective nonverifiable factors. Therefore, we also affirm defendant's sentences.

II. Facts

In January 2006, defendant had dinner with his estranged wife, LH, at a restaurant in Portage. In the parking lot, defendant grabbed LH, slid her into the bed of his pickup truck, and wrapped duct tape around her head and mouth. Defendant also taped LH's wrists and ankles and tied them together with a cable. Defendant then drove LH to a house that he was remodeling and led her upstairs where there were three sleeping bags spread out on the floor. Defendant then picked up a red-handled knife and held it to LH's throat. He ripped the duct tape off her head and, in the process, tore a chunk of hair from her scalp. He then used the knife to cut the tape from LH's wrists and to cut off her sweater, shirt, and bra. LH testified that defendant then pulled her blue jeans down, ripped off her underwear, and raped her. After he finished, defendant grabbed LH's head, pushed it toward his penis, and ordered her to perform oral sex. Defendant then pushed her onto her hands and knees and raped her again. LH stated that the red-handled knife always remained within defendant's reach. LH further testified that, after she was allowed to use the bathroom, defendant raped her again and again forced her to perform oral sex. Later, defendant, for a third time, ordered LH to perform oral sex by forcing her mouth over his penis. In the morning, defendant drove LH back to the restaurant's parking lot.

Several other incidents of defendant's violence toward LH are significant for purposes of the appeal of defendant's sentences. On November 2, 2005, defendant assaulted LH with a dangerous weapon. Further, LH testified that, in December 2005, she stopped seeing defendant in private places because he had raped her. On January 23, 2006, the trial court sentenced defendant to probation for the November assault, but the sentence proved to be no deterrent for defendant. Within a week of his sentencing, defendant committed the kidnapping and multiple sexual assaults that led to his convictions here. Moreover, on April 7, 2006, while defendant was incarcerated and awaiting trial for these offenses, he attempted to solicit the murder of LH, and he has pleaded no contest to this charge.

III. Prosecutorial Misconduct

At trial, the prosecutor asked defendant's daughter, Charlotte, whether she knew why LH had stopped seeing defendant in December 2005 and Charlotte replied that it was because defendant had raped LH. Defendant complains that the prosecutor's question elicited testimony about other acts without the provision of notice as required by MRE 404(b)(2).1

We reject defendant's argument because defense counsel opened the door to the evidence and, therefore, the prosecutor's question was not improper. People v. Verburg, 170 Mich.App. 490, 498, 430 N.W.2d 775 (1988). Before Charlotte testified, defense counsel asked LH about her relationship with defendant between November 2005 and January 2006 and, specifically, about when she had met defendant in private places. LH testified, without objection that she stopped seeing defendant in private places after he sexually assaulted her in December 2005. Thus, defense counsel had already elicited testimony about this issue and it was reasonable for the prosecutor to believe that defense counsel opened the door for his question to Charlotte about whether she knew why LH had stopped seeing defendant in December 2005. Id.; People v. Noble, 238 Mich.App. 647, 660, 608 N.W.2d 123 (1999).

Were we to conclude that the prosecutor improperly elicited Charlotte's testimony, we would nonetheless hold that the trial court correctly denied defendant's motion for a mistrial. A trial court should only grant a mistrial when the prejudicial effect of the error cannot be removed in any other way. People v. Lumsden, 168 Mich.App. 286, 299, 423 N.W.2d 645 (1988). The trial court instructed the jury on the proper use of the other-acts evidence, and instructions are presumed to cure most errors. People v. Abraham, 256 Mich. App. 265, 279, 662 N.W.2d 836 (2003). Defendant has failed to establish that the trial court's instructions were insufficient to cure any alleged unfair prejudice. Moreover, a mistrial would have been inappropriate because, as discussed, LH had already testified about defendant's prior sexual assault and Charlotte's testimony was merely cumulative of LH's testimony.

IV. Defendant's Leg Restraints

The trial court denied defendant's request to attend his trial without leg restraints and defendant complains this denied him a fair trial. However, even were we to agree that the trial court abused its discretion by denying defendant's request, defendant has failed to show that he suffered prejudice as a result of the use of the restraints. People v. Robinson, 172 Mich.App. 650, 654, 432 N.W.2d 390 (1988). The jury never saw defendant in restraints in the courtroom and our caselaw holds that a defendant is not prejudiced if the jury was unable to see the shackles on the defendant. People v. Johnson, 160 Mich.App. 490, 493, 408 N.W.2d 485 (1987). A cloth was placed around the defense table, and the restraints were removed outside the presence of the jury before defendant walked to the witness chair to testify.

Defendant asserts that members of the jury saw him in leg restraints while he was being transported to and from the courtroom, but the prohibition against shackling does not extend to safety precautions taken by officers while transporting a defendant to and from the courtroom. People v. Panko, 34 Mich.App. 297, 300, 191 N.W.2d 75 (1971). Further, when jurors inadvertently see a defendant in shackles, there still must be some showing that the defendant was prejudiced. People v. Moore, 164 Mich.App. 378, 385, 417 N.W.2d 508 (1987), mod on other grounds 433 Mich. 851, 442 N.W.2d 638 (1989). On the fourth day of trial, a deputy informed the trial court and the parties that members of the jury may have seen defendant in leg restraints while defendant was being transported to the courtroom. Defendant, however, chose not to question any jurors about what they may have seen. Also, on the third day of trial, when he was returning from lunch, a juror rode in the elevator with defendant but, when questioned by the trial court, the juror stated that he did not recall seeing leg restraints on defendant. Absent any indication that a member of the jury saw defendant in restraints, we are unable to conclude that defendant suffered any prejudice. Id. Therefore, defendant is not entitled to relief on the basis of this claim.

V. Ineffective Assistance of Counsel

Defendant claims that he was denied the effective assistance of counsel.2 We note that defendant asks for a remand for a hearing under People v. Ginther, 390 Mich. 436, 442-443, 212 N.W.2d 922 (1973), and so that he can file a motion for a new trial on the ground that the jury's verdict was against the great weight of the evidence. We have previously denied defendant's request for a remand, People v. Horn, unpublished order of the Court of Appeals, entered September 20, 2007 (Docket No. 274130), and we decline to reconsider defendant's request.

Because no Ginther hearing occurred, our review of defendant's claim of ineffective...

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