People v. Hughes
| Decision Date | 30 September 2021 |
| Docket Number | 338030 |
| Citation | 339 Mich.App. 99,981 N.W.2d 182 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kristopher Allen HUGHES, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Karen D. McDonald, Prosecuting Attorney, Marilyn J. Day, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Jason R. Eggert) for defendant.
Before: Tukel, P.J., and Beckering and Shapiro, JJ.
ON REMAND
This case returns on remand for us to decide whether trial counsel was ineffective for failing to challenge the admission of evidence discovered on defendant's cellular telephone in a search that the Michigan Supreme Court has deemed unconstitutional. We conclude that defendant was denied his constitutional right to effective assistance of counsel. Trial counsel's failure to object to the evidence on Fourth Amendment grounds was objectively unreasonable, and defendant was prejudiced by this error because the evidence would have been barred by the exclusionary rule. Accordingly, we reverse and remand for a new trial.
Defendant faced two separate criminal prosecutions, "one related to drug trafficking and the other related to armed robbery." People v. Hughes , 506 Mich. 512, 517, 958 N.W.2d 98 (2020). The facts of the armed robbery are as follows:
On August 6, 2016, [Ronald] Stites was going for a walk when he met Lisa Weber. The two talked, and Stites invited Weber back to his home. At Stites's residence, Weber offered to stay with Stites all night and to perform sexual acts in exchange for $50. Stites agreed, and Weber followed him into his bedroom, where he opened a safe containing $4,200 in cash and other items and pulled out a $50 bill that he agreed to give her after the night was over. Stites then performed oral sex on Weber. Afterward, Weber went to the store to get something to drink. Approximately 15-20 minutes later, she called a drug dealer, who went by the name of "K-1" or "Killer," and asked that he come over and sell drugs to her and Stites. Sometime thereafter, a man arrived at Stites's home, sold Weber and Stites crack cocaine, and then departed. Weber and Stites consumed some of the drugs and continued their sexual activities. Later in the evening, the man who had sold the drugs returned to the home with a gun and stole Stites's safe at gunpoint. Stites testified that Weber assisted in the robbery and departed the home with the robber, while Weber asserted that she did not assist in the robbery and only complied with the robber's demands to avoid being harmed. Weber identified defendant as the perpetrator, while Stites could not identify defendant as the perpetrator. [ Id. at 518, 958 N.W.2d 98.]
The issue in this appeal concerns a search of data extracted from defendant's cell phone. Detective Matthew Gorman obtained a warrant to search defendant's personal belongings, including any cell phones. The warrant sought information related only to the drug-trafficking charge; it did not authorize a search for evidence related to the armed robbery. Id. at 519, 958 N.W.2d 98. While executing the warrant, police officers recovered a cell phone from defendant's person on August 12, 2016. Id. at 520, 958 N.W.2d 98. Defendant was arraigned on the robbery charge on August 17, 2016. Id.
On August 23, 2016, Detective Edward Wagrowski performed a forensic examination of defendant's cell phone. He used a software program, "Cellebrite," to extract digital data. Id. That program "separated and sorted the device's data into relevant categories by, for example, placing all of the photographs together in a single location." Id. The examination resulted in a 600-page report, which "included more than 2,000 call logs, more than 2,900 text messages, and more than 1,000 photographs." Id. Defendant later pleaded guilty to various charges in the drug-trafficking case.
A month after this first data extraction, and at the request of the prosecutor in the armed-robbery case, Detective Wagrowski conducted a second search, this time searching for: "(a) contacts with the phone numbers of Weber and Stites and (b) the name ‘Lisa,’ variations on the word ‘killer’ (defendant's nickname), and the name ‘Kris/Kristopher’ (defendant's actual name)." Id. at 521, 958 N.W.2d 98.
These searches uncovered 19 calls between defendant and Weber on the night of the robbery and 15 text messages between defendant and Weber between August 5, 2016 and August 10, 2016. Weber's texts to defendant leading up to the robbery included communications indicating where Stites's home was located, that the home was unlocked, and that there was a flat screen TV in the home. Defendant sent texts to Weber on the night of the robbery asking her to "[t]ext me or call me" and to "open the doo[r]." None of the text messages with the words "killer" or "Kris" were from Weber's number.... [T]he results of these searches served as evidence at defendant's armed-robbery trials. Defense counsel objected to the admission of this evidence, arguing that it was "not relevant" and "stale," but the trial court overruled his objection. [ Id. ]
"Defendant's first two trials on the armed-robbery charge resulted in mistrials due to hung juries." Id. At the third trial, which resulted in defendant's conviction, the prosecutor acknowledged that the jury might have concerns regarding Weber's credibility as a "disputed accomplice" to the crime but "argued during both opening and closing statements that the text messages and phone calls discovered on defendant's cell phone bolstered her testimony and established a link between defendant and the armed robbery." Id. at 522, 958 N.W.2d 98.
On appeal, defendant argued that the cell phone records should have been excluded from his armed-robbery trial because "the warrant supporting a search of the data only authorized a search for evidence of drug trafficking and not armed robbery" and that trial counsel was ineffective for failing to raise an argument under the Fourth Amendment for suppression of the cell phone data. Id. at 522, 958 N.W.2d 98. We rejected those arguments and affirmed defendant's conviction. People v. Hughes , unpublished per curiam opinion of the Court of Appeals, issued September 25, 2018 (Docket No. 338030), 2018 WL 4603864.
In a unanimous opinion, the Supreme Court reversed our decision. It held that the search of defendant's cell phone for evidence specifically related to the robbery violated defendant's Fourth Amendment rights because the warrant only authorized a search of the phone for evidence related to the drug offenses. Hughes , 506 Mich at 552-553, 958 N.W.2d 98. The Court's decision rested on the Fourth Amendment's particularity requirement as well as a 2014 decision from the United States Supreme Court:
We conclude—in light of the particularity requirement embodied in the Fourth Amendment and given meaning in the United States Supreme Court's decision in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ()—that a search of digital cell-phone data pursuant to a warrant must be reasonably directed at obtaining evidence relevant to the criminal activity alleged in that warrant. [ Id. at 516, 958 N.W.2d 98.]
The Court declined to reach the question whether trial counsel was ineffective for failing to raise a Fourth Amendment challenge and instead remanded to this Court to decide the issue. Id. at 551-552, 958 N.W.2d 98.
We now consider defendant's ineffective-assistance-of-counsel claim in light of the Supreme Court's opinion and after consideration of the parties’ supplemental briefing.
"We review de novo the constitutional question whether an attorney's ineffective assistance deprived a defendant of his or her Sixth Amendment right to counsel." People v. Fyda , 288 Mich.App. 446, 449-450, 793 N.W.2d 712 (2010). Where the trial court has not conducted an evidentiary hearing, this Court's review "is limited to mistakes apparent on the record." Id. at 450, 793 N.W.2d 712.
"To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense." Id. at 450, 793 N.W.2d 712. Trial counsel's performance is deficient when it falls below an objective standard of professional reasonableness. Id. "When reviewing defense counsel's performance, the reviewing court must first objectively ‘determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.’ " People v. Jackson (On Reconsideration) , 313 Mich.App. 409, 431, 884 N.W.2d 297 (2015), quoting Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Prejudice is established if, but for counsel's deficient performance, it is reasonably probable that the result of the proceeding would have been different. Fyda , 288 Mich.App. at 450, 793 N.W.2d 712. Defendant bears the burden of establishing both prongs. People v. Crews , 299 Mich.App. 381, 400, 829 N.W.2d 898 (2013).
We begin with the fact that trial counsel had three opportunities to move to suppress defendant's cell phone data on the ground that the search violated the Fourth Amendment and failed to do so. At each of defendant's three trials for armed robbery, the prosecutor introduced evidence of phone logs obtained pursuant to the search warrant for the drug-trafficking case. No objection was made before or during the first two trials. Before the third trial, the prosecutor informed trial counsel that he intended to introduce "additional documents from the forensic report" of defendant's phone.1 Trial counsel now objected, arguing that the additional documents were not...
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