People v. Philipps
| Docket Number | 360042 |
| Decision Date | 20 July 2023 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RYAN JOSEPH PHILIPPS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Menominee Circuit Court LC No. 2020-004200-FC
Before: PATEL, P.J., and BOONSTRA and RICK, JJ.
Defendant appeals as of right his jury trial convictions of assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a), and reckless driving causing serious impairment of a body function, MCL 257.626(2) and (3). The trial court sentenced defendant to 38 months to 10 years' imprisonment for his AWIGBH conviction, and one year in prison for his reckless driving conviction. We affirm.
In the summer of 2019, defendant and the victim decided to start a marijuana growing operation. The victim gave defendant $130 to purchase materials to start the business. The deal fell through after the victim insulted the marijuana plants that defendant intended to buy. According to defendant, at one point, he and the victim went to look at marijuana seedlings which were approximately one month old. The victim was confused because he thought the plants would have been larger. According to the victim, when defendant showed him the plants, "they were less than an inch [tall]". The victim believed that his money was being wasted and expressed his disappointment to defendant. He believed that defendant became upset with him for saying that the plants did not look good. After defendant and the victim looked at the plants, defendant told the victim that he was "out of the deal," even after the victim attempted to apologize. At that point, the victim asked defendant to give him his money back. After a considerable amount of back-and-forth over the following days, defendant eventually agreed to return the victim's money.
Defendant and his wife stopped at the victim's house with the money, at which point defendant and the victim got into another argument. Defendant and the victim recall the events leading up to the assault differently. The victim testified that he had been swimming nearby and was not home when defendant arrived at his house. When the victim pulled into his driveway and got out of his car, defendant began moving his car and threw some money on the ground. The victim said that he found two $20 bills on the ground and went up to defendant's car to tell him $40 was not enough money. According to the victim, defendant did not respond verbally, and instead struck him in the face with his left hand. The victim testified that he backed up to an area near the side of the driveway, and asked where defendant was going. Defendant "respond[ed] by throwing his car in reverse, and then flying forward, and running me over, without stopping whatsoever." The victim was hit by the front of the car. He "remembered getting hit and getting shot right underneath it." Two friends who were with the victim at the time also testified that they saw defendant deliberately hit the victim with his car.
According to defendant, when the victim pulled into the driveway, he hopped out of his car and began threatening defendant and his wife. Defendant and his wife both testified that the victim tried to put his upper body inside the vehicle and grab defendant's neck. Defendant testified that he was afraid for himself and for his wife and put the car in drive in an attempt to get away. Defendant said that he pulled forward and immediately to the left. Defendant testified that the victim jumped onto the hood of the car as it was moving. The victim landed with his stomach down on the middle of the hood before letting go and falling straight under the car.
Defendant and his wife drove to the house of defendant's father, an attorney, locked the car in his garage, and hid in the basement. Defendant later turned himself in to the police, and was ultimately found guilty as previously described. This appeal followed.
Before trial, the prosecution moved to disqualify defendant's father from acting as his attorney on the basis that the father's testimony may be necessary at trial. The trial court granted the motion. On appeal, defendant argues that the trial court erred because his father's testimony was not likely to be necessary and, even if it was, his father should not have been disqualified before trial.
To preserve an issue for appeal, the defendant must raise it before the trial court at the time that the trial court has an opportunity to correct the error. People v Pipes, 475 Mich. 267, 277; 715 N.W.2d 290 (2006). Defendant contested his father's disqualification below, but he did not argue that his father should be allowed to represent him during pretrial proceedings even if his testimony was necessary at trial. This new argument is unpreserved.
This Court reviews for clear error the trial court's findings of fact regarding a motion to disqualify counsel. People v Tesen, 276 Mich.App. 134, 141; 739 N.W.2d 689 (2007). A finding is clearly erroneous if, after reviewing the entire record, this Court is definitely and firmly convinced that the trial court made a mistake. People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). This Court reviews de novo the trial court's application of the law to the facts and the court's application of ethical norms. Tesen, 276 Mich.App. at 141. However, unpreserved issues are reviewed for plain error affecting a party's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "An error is plain if it is 'clear or obvious,' and it affects substantial rights if it 'affected the outcome of the lower court proceedings.'" People v Miller, 326 Mich.App. 719, 726; 929 N.W.2d 821 (2019), quoting Carines, 460 Mich. at 764-765. Reversal is only warranted if a defendant has shown actual innocence or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. Carines, 460 Mich. at 763-764.
The United States and Michigan Constitutions provide that an accused is entitled to counsel to assist in his or her defense. U.S. Const, Am 6; Const 1963, art 1, § 20. This right includes the right of the accused to select a preferred attorney, subject to limitations. Wheat v United States, 486 U.S. 153, 159; 108 S.Ct. 1692; 100 L.Ed.2d 140 (1988). One such limitation is that counsel's representation may not breach professional ethics. Id. at 162.
The Michigan Rules of Professional Conduct establish that a lawyer cannot act as an advocate at trial under certain circumstances:
The purpose of this rule is to protect the interests of the parties and the reputation of the legal profession by ensuring that counsel would not be required to attack the credibility of a lawyer as a witness. Kubiak v Hurr, 143 Mich.App. 465, 471; 372 N.W.2d 341 (1985).
Defendant asserts that his father's potential testimony would not have been related to a contested issue because all he could testify to was that he owned the vehicle defendant was driving when he struck the victim. We reject this argument. The trial court considered that the vehicle belonged to defendant's father and reasoned that the vehicle, which was the instrumentality of the crime, would be crucial at trial. The court also observed that issues might arise regarding the maintenance of the vehicle, such as whether a malfunction could have caused the vehicle to veer, or whether defendant's father could have known about dents or trace evidence, which would have required his testimony. Additionally, the trial court pointed out that defendant parked the vehicle in his father's garage, where it remained before it was turned over to police. The circumstances surrounding this fact, including why defendant and his wife sought refuge at defendant's father's residence, were germane to the case. The trial court determined that it was proper to disqualify defendant's father because "he is a necessary witness, and he is likely to be called in the case because of his personal knowledge of the car before and after the incident." While defendant could have stipulated to his father's ownership of the car or the car's chain of custody, it was likely that issues might arise at trial about the vehicle that could have made it necessary for defendant's father to testify. We thus conclude that the trial court did not err by disqualifying defendant's father from acting as his attorney.
Defendant next argues that even if the trial court properly disqualified his father, it should have done so only for the limited purpose of the trial. MRPC 3.7(a) provides, subject to exceptions, that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness ...." The trial court interpreted MRPC 3.7(a) to mean that a lawyer may not advocate for a witness at any point if the lawyer is likely to be a necessary witness at a trial. Defendant argues that MRPC 3.7(a) should instead be interpreted to mean that the lawyer may not be an advocate at the specific trial where he or she is likely to be a necessary witness, but that the lawyer should be able to advocate for his or her client in pretrial proceedings. We conclude that defendant has not established plain error regarding this unpreserved issue. An error is plain when it is contrary to well-settled law. See People v Vaughn, 491 Mich. 642, 665; 821 N.W.2d 288 (2012). Defendant...
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