People v. Manciel, 335156

CourtCourt of Appeal of Michigan (US)
Writing for the CourtPer Curiam.
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LARRY MANCIEL, Defendant-Appellant.
Docket Number335156
Decision Date28 April 2022


LARRY MANCIEL, Defendant-Appellant.

No. 335156

Court of Appeals of Michigan

April 28, 2022


Wayne Circuit Court LC No. 12-005217-01-FH

Before: Jansen, P.J., and Sawyer and Riordan, JJ.

Per Curiam.

Defendant appeals as of right his convictions, following a second jury trial, of first-degree home invasion, MCL 750.110a(2), and unarmed robbery, MCL 750.530, for which the trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to prison terms of 15 to 30 years for the home-invasion conviction, and 5 to 15 years for the unarmed robbery conviction, to be served consecutively. For the reasons set forth in this opinion, we affirm.


This case arises from the home invasion and robbery of Floyd Hosea at his Detroit apartment on February 12, 2012. The case has a lengthy procedural history. Defendant was originally convicted of first-degree home invasion and unarmed robbery at a jury trial in August 2012. In a prior appeal, after remanding for a Ginther[1] hearing on defendant's claims of ineffective assistance of counsel, this Court affirmed the trial court's determination that defendant's trial counsel was ineffective for failing to investigate and call two alibi witnesses, and accordingly, reversed defendant's convictions and remanded for a new trial. See People v Manciel, unpublished per curiam opinion of the Court of Appeals, issued December 30, 2014 (Docket No. 312804), aff'd People v Manciel, unpublished order of the Court of Appeals, entered August 14, 2015 (Docket No. 312804).


At defendant's second jury trial, which concluded on August 31, 2016, defendant was again convicted of first-degree home invasion. The victim, Floyd Hosea, who was 86 years old at the time of the offense, testified that he was sleeping in his apartment between 9:30 and 11:00 p.m. when he heard a noise at his door and then an intruder broke into his apartment by kicking open the front door.[2] The intruder hit Hosea in the face and demanded his money. The intruder took Hosea's pants that contained his wallet and money, and then left.

The principal issue at defendant's trial was the identity of the perpetrator. Hosea identified defendant as his assailant and explained that he was familiar with defendant because defendant lived in the same apartment complex and the two often socialized together when Hosea would offer defendant a beer while Hosea was sitting outside his apartment. Although the intruder's face was partially covered, Hosea explained that he recognized defendant's voice, and he also knew defendant's eyes and head. As Hosea explained, "I know him when I see him." Hosea testified that he was "real certain" about his identification, and he was "positive" that defendant was the intruder. Hosea told the responding police officer, Sergeant James Johnson, that he recognized the intruder and the officer confirmed that Hosea identified defendant as his assailant.

Defendant presented an alibi defense at trial. William Barber testified that on the night of the home invasion, defendant visited Barber's apartment in the same complex. Defendant arrived between 7:00 p.m. and 7:30 p.m., the two watched a movie together, and then Barber drove defendant to his work at a group home in Royal Oak. According to Barber, they left Barber's apartment between 10:00 and 10:30 p.m., and Barber's wife, Diane Sanders, went with them. Jeanetta Harris-Stevens, who described herself as a good friend of defendant whom she had known for 20 years, testified that she is affiliated with the group home where defendant worked, and was there on February 7, 2012, when defendant arrived for work between 10:30 and 10:45 p.m. Harris-Stevens said that after defendant completed his work at the home, she drove him to another location in Beverly Hills at 3:00 a.m., and he remained there until 8:00 a.m., when Harris-Stevens drove him home.

After defendant was again convicted at his second trial, he filed a motion for a new trial. He argued that defense counsel was ineffective for failing to call Diane Sanders, who could have also supported his alibi defense and who also could have refuted Hosea's identification of defendant as the perpetrator. Defendant further argued that defense counsel was ineffective for not calling the apartment manager, Barbara West, who defendant claimed could have refuted Hosea's testimony that he and defendant often socialized together. Defendant also presented evidence that Allen Aikens, whom defendant met in the Wayne County Jail, had confessed to committing the crimes against Hosea. Defendant argued that Aikens's confession was newly discovered evidence that entitled defendant to a new trial. Following an evidentiary hearing, the trial court rejected defendant's ineffective-assistance claims. It also found that defendant was aware of Aikens's purported confession before defendant's second trial concluded, and therefore,


the confession did not qualify as newly discovered evidence. Accordingly, the court denied defendant's motion for a new trial. Defendant again appeals his convictions and sentences.


Defendant first argues that the trial court abused its discretion by denying his motion for a new trial on the basis that defense counsel at defendant's second trial was ineffective for failing to call two witnesses, and failing to object to the court's jury instructions. We disagree.


This Court reviews a trial court's decision regarding a defendant's motion for a new trial for an abuse of discretion. People v Rogers, 335 Mich.App. 172, 191; 966 N.W.2d 181 (2020). A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. Any factual findings by the trial court are reviewed for clear error. People v Johnson, 502 Mich. 541, 565; 918 N.W.2d 676 (2018). A finding is clearly erroneous when this Court is left with a definite and firm conviction that the trial court made a mistake. Id.

Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and law. People v Haynes, ____ Mich App___, ____; ____ N.W.2d ____ (2021) (Docket No. 350125, issued 8/12/2021); slip op at 16, lv pending. The trial court's factual findings are reviewed for clear error, but "the court's determination of whether those facts violated the defendant's right to the effective assistance of counsel is reviewed de novo." Id.


Defendant argues that trial counsel at his second trial was ineffective for failing to interview or call as witnesses Diane Sanders and Barbara West. We disagree.

In People v Leffew, ____ Mich____, ___; ___ N.W.2d ____ (2022) (Docket No. 161797, issued 1/26/2022); slip op at 9, our Supreme Court recently reaffirmed the two-prong test from Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984), previously stated in People v Carbin, 463 Mich. 590; 623 N.W.2d 884 (2001), that a defendant must meet to successfully obtain relief when asserting a claim of ineffective assistance of counsel:

First, the defendant must establish that counsel's performance was deficient. [Carbin, 463 Mich] at 600. In evaluating deficient performance we consider "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Second, the error must have prejudiced the defendant. To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Reasonable probability means "a probability sufficient to undermine confidence in the outcome." [Leffew, slip op at 9.]

"Trial counsel is presumed effective and defendant must overcome a strong presumption that a trial counsel's performance was sound trial strategy." People v Loew, ___ Mich App___, ____; ____ N.W.2d ____ (2022) (Docket No. 352056, issued 1/13/2022); slip op at 10. This Court will not


use the benefit of hindsight to second-guess trial counsel's strategic decisions when assessing trial counsel's competence. Id. However, courts may not "insulate" review of trial counsel's performance by referring to it as trial strategy. As explained in People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012):

Initially, a court must determine whether the "strategic choices [were] made after less than complete investigation," and any choice is "reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." [Strickland, 466 US] at 690-691. Counsel always retains the "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id.

In other words, trial counsel is charged with the responsibility of "exercise[ing] reasonable professional judgment when deciding to forgo particular investigations relevant to the defense . . . ." Trakhtenberg, 493 Mich. at 53.

Defendant has not demonstrated that trial counsel's decision not to call Sanders as a witness fell below an objective standard of reasonableness, or that counsel's decision was not based on a complete and thorough investigation. Defendant argues that Sanders could have also supported his alibi defense, and further, could have offered testimony that she spoke to Hosea after the offense and Hosea told her that he did not know the identity of the intruder. The record indicates that defense counsel was aware that defendant had suggested calling Sanders for these two purposes. Although defense counsel admitted that she did not interview Sanders, counsel explained that she had the benefit of Sanders's prior testimony from the Ginther hearing...

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