People v. Kissner, Docket No. 296766.

• Decision Date: 12 May 2011
• Docket Number: Docket No. 296766.
• Citation: 292 Mich.App. 526,808 N.W.2d 522
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE v. KISSNER.

292 Mich.App. 526

808 N.W.2d 522

PEOPLE

v.KISSNER.

Docket No. 296766.

Court of Appeals of Michigan.

Submitted May 3, 2011, at Lansing.Decided May 12, 2011, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Randy O. Colbry, Prosecuting Attorney, and Anica Letica, Assistant Attorney General, for the people.

Ronald D. Ambrose for defendant.

Before: DONOFRIO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of tampering with evidence, MCL 750.483a(6)(a), and attempted obstruction of justice, MCL 750.92; MCL 750.505. Because sufficient evidence supports defendant's convictions and the trial court admitted no evidence in violation of either MCR 6.505(A) or defendant's due-process right to the assistance of counsel, we affirm.

I

In August 2004, Judge Gerald Lostracco, a Shiawassee Circuit Court judge, presided over a jury trial in which defendant was convicted of burning real property, MCL 750.73, and sentenced as a third-offense habitual offender, MCL 769.11, to 11 to 20 years in prison.¹ In August 2008, after having exhausted his appellate rights, defendant filed a motion for relief from judgment concerning his conviction for burning real property claiming that Judge Lostracco should have disqualified himself from the 2004 trial. The motion stated, in pertinent part, “The trial court erred in failing to sua sponte disqualify himself based on personal bias against the defendant where the defendant was [an] ex-boyfriend to and possibly fathered a child by the judge's daughter.” Defendant also stated “that he is indigent and requests appointment of counsel in this matter pursuant to MCR 6.505(A).”

Although defendant stated that an accompanying brief would provide facts supporting each ground for relief, no brief in support of the motion is included in the trial-court record. However, defendant filed with the motion an affidavit in support of the motion, that stated, in pertinent part:

(3) That I was personally involved in a romantic relationship, from the summer of 1996 to around November or December of 1998, with Misty Lostracco, who is the daughter of my judge;

(4) That I met Misty Lostracco at [a] local hang-out called “the pits” near the parking lot of the Owosso Theater;

(5) That I have been to the home of Judge Lostracco to visit Misty Lostracco;

(6) That I have stayed the night at Judge Lostracco's home with his permission on several occasions;

(7) That on one occasion, around October of 1998, Judge Lostracco came home to find Misty and I making-out and partially undressed, Judge Lostracco then chased me out of his home and into my vehicle with a baseball bat;

(8) That Misty Lostracco became pregnant shortly after our break-up [.] No paternity tests have been performed and I am not sure the child is mine;

(9) That there were sexual relations between Misty and I during the time we were seeing each other;

(10) That Judge Lostracco personally knew me by name and appearance;

(11) That I told my trial attorney, Douglas Corwin Jr., prior to trial at a supplemental hearing about the relationship with the Judge's daughter and about the incident with the baseball bat. Defense counsel told me it was nothing to worry about and did not thereafter file a motion for judicial disqualification.

I declare under penalty of perjury that the above statements are True to the best of my knowledge, information, and belief. Defendant signed both the affidavit and the motion for relief from judgment, and the parties stipulated that Geraldine Harris, a notary with the Michigan Department of Corrections, notarized defendant's signature on the motion and the affidavit, but did not have defendant swear to the truthfulness of the contents.

Judge Lostracco testified in the present case that he did not have a daughter named Misty. Although Judge Lostracco has a daughter, she would have turned 11 years old in the Summer of 1996, when defendant alleged his relationship with Misty Lostracco began. Further, Judge Lostracco testified that his daughter had never been pregnant or had a child, was not married, and had recently graduated from college and was working. Judge Lostracco explained that he first became familiar with defendant in late 2001 when defendant appeared before him during court proceedings. Judge Lostracco maintained that he had never seen or had any acquaintance with defendant before that time. He denied ever allowing defendant to come to his home or chasing defendant with a baseball bat. Judge Lostracco also testified that defendant's statements in his affidavit that he knew Judge Lostracco and his daughter personally were completely false.

Douglas Corwin, Jr., defendant's attorney during the 2004 trial, testified that during his preparation for that trial and in the course of the trial, defendant never stated that he had a relationship with Judge Lostracco's daughter or that he had a physical confrontation with Judge Lostracco. Further, defendant never asked Corwin to file a motion to disqualify Judge Lostracco from hearing the arson case. Corwin testified that defendant's claims that he had told Corwin about his relationship with Judge Lostracco's daughter and that Judge Lostracco had confronted him with a baseball bat were untrue.

Corwin also testified that initially he had been appointed as defendant's counsel in the present case, but at the preliminary examination and in defendant's presence, the trial court had granted his request to withdraw as counsel.² According to Corwin, at the end of the preliminary examination he explained to defendant that he was no longer his attorney and that the court would appoint a new attorney for defendant. At this point, defendant began commenting on the charges arising from his filing of the motion for relief from judgment and affidavit, stating, “Geez, they can't take a f-- king joke, can they?”

Sergeant Mark Pendergraff of the Michigan State Police interviewed defendant as part of his investigation in the case. Defendant told Pendergraff that he had signed both the motion for relief from judgment and the affidavit and mailed a copy of each to Judge Lostracco and the Shiawassee County Prosecuting Attorney. When asked, defendant stated that all the information contained in each document, and every statement of the affidavit, was true. Defendant also claimed that he knew someone who could verify his relationship with Misty Lostracco, but he refused to give Pendergraff any names. As part of his investigation, Pendergraff attempted to locate any person named Misty Lostracco, but he could find no one named Misty or Melissa Lostracco in the entire United States. Further, Pendergraff found no indication that any person named Misty Lostracco had lived in Michigan between 1996 and 1998.

In January 2009, the prosecutor charged defendant with one count of tampering with evidence, MCL 750.483a(6)(a). At a competency examination, the trial court found defendant competent to stand trial. Approximately one month later, the prosecutor also charged defendant with one count of attempted obstruction of justice, MCL 750.92; MCL 750.505.

At trial, Judge Lostracco testified that he held a hearing on October 6, 2008, regarding defendant's motion for relief from judgment. Although defendant had requested counsel in advance of the hearing, Judge Lostracco had declined the request, reasoning that defendant was not entitled to counsel because he had exhausted his appeal as of right. Judge Lostracco stated that defendant had acknowledged under oath that the documents filed with the court in relation to the motion for relief from judgment were his documents.

After the close of proofs at trial, defendant moved for a directed verdict on both counts, arguing that all evidence regarding the October 6, 2008, hearing should be struck because defendant had not been appointed counsel pursuant to MCR 6.505(A) and that the remaining evidence was insufficient to find defendant guilty on either count. The trial court denied defendant's motion for a directed verdict, concluding that the “official proceeding” had begun when defendant filed his motion and affidavit. However, the trial court struck the portion of Judge Lostracco's testimony concerning the October 6, 2008, hearing. When instructing the jury, the trial court stated:

Judge Lostracco testified about a court hearing held on October 6, 2008, at which Mr. Kissner participated by telephone, was sworn and gave certain testimony. I am striking all references to defendant's testimony given by telephone on October 6, 2008, and you are not to consider that testimony in reaching your verdict. You may consider the remainder of Judge Lostracco's testimony.

A jury convicted defendant of both counts on August 12, 2009. Defendant now appeals as of right.

II

Defendant argues that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he was guilty of tampering with evidence and attempted obstruction of justice. This Court reviews de novo a claim of insufficient evidence in a criminal trial. People v. Lueth, 253 Mich.App. 670, 680, 660 N.W.2d 322 (2002). Statutory interpretation is a question of law that this Court considers de novo on appeal. People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003).

When reviewing a claim that the evidence presented was insufficient to support the defendant's conviction, this Court must view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the prosecution established the essential elements of the crime. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). As a result, “a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000). However, to establish...