People v. Putman

• Decision Date: 19 February 2015
• Docket Number: Docket No. 318788.
• Citation: 309 Mich.App. 240,870 N.W.2d 593
• Parties: PEOPLE v. PUTMAN.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 240

870 N.W.2d 593

PEOPLE

v.PUTMAN.

Docket No. 318788.

Court of Appeals of Michigan.

Submitted Feb. 10, 2015, at Detroit.

Decided Feb. 19, 2015.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training and Appeals, for the People.

Jonathan B.D. Simon, Bloomfield Hills and Michael B. Putman, in propria persona, for Defendant.

Before: MURRAY, P.J., and HOEKSTRA and WILDER, JJ.

Opinion

PER CURIAM.

Defendant Michael B. Putman appeals as of right his jury-trial convictions of two counts of assault with intent to murder, MCL 750.83 ; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b ; armed robbery, MCL 750.529 ; and second-degree murder, MCL 750.317, after he shot three people, one fatally, while robbing a residence. Defendant was sentenced to 15 to 30 years' imprisonment for each of his convictions for assault with intent to murder, two years' imprisonment for his felony-firearm conviction, 15 to 30 years' imprisonment for his armed-robbery conviction, and 25 to 50 years' imprisonment for his second-degree-murder conviction. For the reasons explained in this opinion, we affirm.

Defendant first contends that the trial court erred when it did not properly administer to the witnesses the oath to testify truthfully as required by MCL 600.1432(1). Further, defendant asserts that this failure by the trial court resulted in a violation of his Sixth Amendment right of confrontation and that trial counsel was ineffective for failing to object to the form of the oath.

Defendant did not object to the form of the oath given to the witnesses at trial. Therefore, the issue is unpreserved. See People v. Metamora Water Serv., Inc., 276 Mich.App. 376, 382, 741 N.W.2d 61 (2007). This Court reviews unpreserved issues for plain error affecting a defendant's substantial rights. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). In order for defendant to avoid forfeiture under the plain-error standard, he must show that (1) an error occurred, (2) the error was plain, meaning clear or obvious, (3) and the plain error affected substantial rights. Id. The third prong requires a showing of prejudice, which occurs when the error affected the outcome of the lower court proceedings. Id.

Under MCL 600.1432 and MCL 600.1434, witnesses in judicial proceedings must swear or affirm that their testimony will be true. Donkers v. Kovach, 277 Mich.App. 366, 369, 745 N.W.2d 154 (2007). The typical manner for administering oaths is set forth in MCL 600.1432(1), which provides:

The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, “You do solemnly swear or affirm”.

There are exceptions to this general rule, including MCL 600.1434, which provides that “[e]very person conscientiously opposed to taking an oath may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury.” Moreover, the administration of oaths and affirmations is a purely procedural matter, and it thus falls within the authority of our Supreme Court to promulgate rules governing the practices and procedures for administering oaths. Donkers, 277 Mich.App. at 373, 745 N.W.2d 154, citing Const. 1963, art. 6, § 5. To this end, MRE 603 provides:

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

Comparing MRE 603 to the identical language of its federal counterpart, FRE 603, this Court has concluded that “no particular form or language is necessary when swearing or affirming to testify truthfully” in accordance with MRE 603.

Donkers, 277 Mich.App. at 372, 745 N.W.2d 154. “As the plain language of MRE 603 makes clear, no particular ceremonies, observances, or formalities are required of a testifying witness so long as the oath or affirmation ‘awaken[s]’ the witness's conscience and ‘impress[es]’ his or her mind with the duty to testify truthfully.” Id. at 373, 745 N.W.2d 154 (alteration in original). See also People v. Ramos, 430 Mich. 544, 548, 424 N.W.2d 509 (1988). Because the administrations of oaths and affirmations is a purely procedural matter, to the extent MRE 603 conflicts with MCL 600.1432 and MCL 600.1434, MRE 603 prevails over the statutory provisions, meaning that no specific formalities are required of an oath or affirmation. Donkers, 277 Mich.App. at 373, 745 N.W.2d 154. Therefore, witnesses need not raise their right hands when taking an oath to testify truthfully, and such oaths need not be prefaced with any particular formal words. See id. at 372–373, 745 N.W.2d 154.

In the present case, the trial court asked each witness, including defendant's own witnesses, if they promised to testify truthfully or some similar variation of that question.¹ Each witness answered the trial court's question in the affirmative. This oath was sufficient to awaken the witnesses' consciences and impress the witnesses' minds with the duty to testify truthfully. Therefore, no plain error occurred.²

On appeal, defendant also maintains that defense counsel rendered ineffective assistance by failing to object to the oath administered by the trial court. This argument lacks merit, however, because counsel is not ineffective for failing to raise meritless or futile objections. People v. Eisen, 296 Mich.App. 326, 329, 820 N.W.2d 229 (2012). Any objection by counsel to the oaths administered would have been meritless because, as stated earlier, the oath administered to the witnesses was sufficient to awaken the witnesses' consciences and impress the witnesses' minds with the duty to testify truthfully. Thus, counsel's failure to raise a meritless objection to the oaths did not deny defendant the effective assistance of counsel. See id.

Defendant next argues that he was denied the opportunity to confront the witnesses against him when a police officer testified about information received from an anonymous source. Defendant failed to object to this testimony at trial, meaning defendant's Confrontation Clause claim is unpreserved and reviewed for plain error affecting his substantial rights. People v. Chambers, 277 Mich.App. 1, 10, 742 N.W.2d 610 (2007). In the alternative, defendant argues that trial counsel was ineffective for failing to object to the use of this alleged testimonial hearsay. Because defendant failed to move for a new trial or a Ginther³ hearing, our review of this ineffective-assistance argument is limited to mistakes apparent on the record. Id.

“Both the United States and Michigan constitutions guarantee a criminal defendant the right to confront the witnesses against him or her.” People v. Garland, 286 Mich.App. 1, 10, 777 N.W.2d 732 (2009), citing U.S. Const. Am. VI ; Const. 1963, art. 1, § 20. The Confrontation Clause prohibits the admission of out-of-court statements that are testimonial in nature, unless the declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Chambers, 277 Mich.App. at 10, 742 N.W.2d 610, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause does not, however, bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted. People v. Henry (After Remand), 305 Mich.App. 127, 153, 854 N.W.2d 114 (2014). “[A] statement offered to show the effect of the out-of-court statement on the hearer does not violate the Confrontation Clause.” Id. at 153–154, 854 N.W.2d 114 (citation and quotation marks omitted). “Specifically, a statement offered to show why police offers acted as they did is not hearsay.” Chambers, 277 Mich.App. at 11, 742 N.W.2d 610.

In this case, Detroit Police Officer Steven Ford testified that he received a tip through Crime Stoppers that the individual who shot the victim was named “Mike” and that he “lived on Central.” Acting on this information, Ford did more investigating and discovered that defendant fit the description of the tip. Ford then placed defendant's photograph in an array that was shown to several witnesses to the shooting. In this context, it is clear that the informant's statement was not elicited from Ford to prove the truth of the statement, i.e., that “Mike” committed the murder; rather, it was used to explain why Ford put a photograph of defendant in the photographic array. Because the Confrontation Clause does not prevent the use of out-of-court testimonial statements to show why a police officer acted as he did, the admission of this testimony did not violate defendant's right of confrontation and he has not shown plain error. See id. at 10–11, 742 N.W.2d 610. Furthermore, because the testimony in question did not violate the Confrontation Clause, any objection on this basis would have been futile, and defense counsel is not ineffective for failing to make a futile objection. Eisen, 296 Mich.App. at 329, 820 N.W.2d 229. In short, defendant was not denied his right of confrontation and he was not denied the effective assistance of counsel on this basis.

Next, in a Standard 4 brief,⁴ defendant contends he was denied the effective assistance of counsel on other grounds. In particular, defendants contends that counsel rendered ineffective assistance by failing to call defendant's brother as a witness, failing to object to testimony that Officer Ford obtained defendant's name from the crime reporting system CRISNET, and failing to properly cross-examine witnesses.

Because defendant failed to move for a new trial or a Ginther hearing, our review of his ineffective-assistance claim is limited...