People v. Reiner
| Decision Date | 17 April 2014 |
| Docket Number | No. 313854,313854 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH THOMAS REINER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court
Before: SERVITTO, P.J., and FORT HOOD and BECKERING, JJ.
Following a jury trial, defendant, Joseph Thomas Reiner, was convicted of assault with intent to murder, MCL 750.83; first-degree home invasion, MCL 750.110a(2); and felony murder, MCL 750.316(1)(b). The trial court sentenced defendant to concurrent prison terms of 450 to 720 months for the assault with intent to murder conviction, 150 to 240 months for the home invasion conviction, and life imprisonment for the murder conviction. Defendant appeals as of right. We affirm.
Defendant's convictions arise from the February 23, 2011, home invasion of 49199 Fairchild Road in Macomb County, where 69-year-old Joanne Eisenhardt lived. A man, who was later identified as defendant, stabbed Eisenhardt in the neck with two knives. The knives were still in Eisenhardt's neck when police and emergency medical services arrived at the house. The surgeon who operated on Eisenhardt to remove the knives was "flabbergasted" that no major organs were injured. However, Eisenhardt suffered declining health after the incident and died seven months later.
On appeal, defendant argues that he was denied the effective assistance of counsel because trial counsel failed to call an independent forensic pathologist to dispute the testimony of Dr. Daniel Spitz, the chief medical examiner for Macomb County, that the manner of Eisenhardt's death was homicide. Because no Ginther1 hearing has been held on defendant'sclaim, our review is limited to errors apparent on the record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008).
To establish a claim for ineffective assistance of counsel, a defendant must show that counsel's performance fell below objective standards of reasonableness and that, but for counsel's deficient performance, there is a reasonable probability that the result of the proceedings would have been different. People v Uphaus (On Remand), 278 Mich App 174, 185; 748 NW2d 899 (2008). A defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy. People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Decisions regarding whether to call witnesses are presumed to be matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). The failure to call a witness only constitutes ineffective assistance of counsel if it deprived the defendant of a substantial defense. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). A substantial defense is one that might have made a difference in the outcome of trial. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009).
Here, there is nothing in the record to indicate that trial counsel did not consult with an independent forensic pathologist. Defendant, therefore, has failed to overcome the presumption that counsel's performance in not calling an independent forensic pathologist was sound trial strategy. Trakhtenberg, 493 Mich at 52. Moreover, defendant has not shown that trial counsel's performance in not calling an independent forensic pathologist deprived him of a substantial defense. Russell, 297 Mich App at 716. There is nothing in the record to indicate that an independent forensic pathologist would have testified in defendant's favor, i.e., would have testified, in contradiction of Spitz, that Eisenhardt's death was not the natural and probable consequence of the home invasion and assault. See People v Clark, 171 Mich App 656, 659; 431 NW2d 88 (1988). Accordingly, defendant has not shown that, but for defense counsel's alleged deficient performance, there is a reasonable probability that the result of his trial would have been different. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (); Uphaus (On Remand), 278 Mich App at 185. Defendant was not denied the effective assistance of counsel.
Additionally, we deny defendant's request to remand for a Ginther hearing. This Court has already denied defendant's motion to remand, People v Reiner, unpublished order of the Court of Appeals, entered June 6, 2013 (Docket No. 313854), and his motion for reconsideration, People v Reiner, unpublished order of the Court of Appeals, entered July 30, 2013 (Docket No. 313854). Defendant has failed to establish grounds for a remand.
Next, defendant argues that he was denied a fair trial by the tainted in-court identifications of him by Eisenhardt's neighbors, Allen Pauli and Thomas Kosciolek. He claims that the pretrial identification procedure used by Detective Melissa Stevens—showing Pauli and Kosciolek still photographs from a surveillance video from a Flagstar Bank branch location—was impermissibly suggestive. We review a trial court's decision to admit identification evidence for clear error. People v McAllister, 241 Mich App 466, 472; 616 NW2d 203 (2000), remanded in part on other grounds 465 Mich 884 (2001). "Clear error exists when the reviewingcourt is left with a definite and firm conviction that a mistake was made." People v McDade, 301 Mich App 343, 357; 836 NW2d 266 (2013).
A photographic identification procedure can be so suggestive as to deprive the defendant of due process. People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998). To establish that an identification procedure denied him due process, a defendant must show that the procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification. People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001). The relevant inquiry is not whether the identification procedure was suggestive, but whether it was unduly suggestive in light of all the circumstances surrounding the identification. People v Kurylczyk, 443 Mich 289, 306; 505 NW2d 528 (1993). If a pretrial identification procedure is unduly suggestive, no testimony about the witness's identification at the procedure is admissible at trial. Id. at 303. However, the witness may still give an in-court identification if an independent basis for the identification, untainted by the pretrial identification procedure, is established. Id.
There was nothing unduly suggestive about the pretrial identification procedure with regard to Kosciolek. Kosciolek was shown still photographs from the Flagstar Bank surveillance video and asked if the person depicted in them was the person whom he had given a ride the morning of the incident. The use of surveillance photographs is generally not unduly suggestive because "such films provide a memory-refreshing device, showing the man who actually committed the [crime] as opposed to the picture of some possible suspect in the police files." Id. at 309-310 (quotation omitted). The still photographs showed the actual man whom Kosciolek picked up in his neighborhood and dropped off in the bank parking lot. Kosciolek was not shown photographs from police files depicting the likeness of a possible suspect. Accordingly, we are not left with a definite and firm conviction that the trial court made a mistake when it allowed evidence of the pretrial identification procedure and Kosciolek's subsequent in-court identification of defendant. McDade, 301 Mich App at 356.
There was also no error concerning the pretrial identification procedure with regard to Pauli. Pauli did not identify the person in the still photographs as the man he saw walking on Fairchild Road. He told Stevens that, although he recognized the clothing worn by the person, the still photographs were too blurry for him to make an identification of the person in them. The factors that a court should consider in making a determination whether a pretrial identification procedure is unduly suggestive assume that the pretrial identification procedure resulted in an identification. See Kurylczyk, 443 Mich at 306. Further, as already stated, an identification procedure is constitutionally defective where it results in a substantial likelihood of misidentification. Id. The result of an unduly suggestive identification procedure is the preclusion of evidence regarding the identification at trial. Id. at 303. Because Pauli did not make a pretrial identification from the still photographs, there is no error in this case. Indeed, even if the identification procedure was unduly suggestive, because Pauli did not make an identification, there was no improper identification for the trial court to exclude. Accordingly, the trial court's decision to permit evidence of the pretrial identification procedure and Pauli's in-court identification of defendant was not clearly erroneous. McAllister, 241 Mich App at 472.
Defendant also argues that the trial court violated his right of confrontation when it admitted the statements of Hadrian Lewandowski2, the owner of the Gold Shop in February 2011, to Detective David Ernatt, Sergeant Dan Willis, and Detective Gerald Hanna.3 The trial court held that Lewandowski's statements, although testimonial, were not barred by the Confrontation Clause because they would be used to explain why the police acted as they did and how they came to investigate defendant.4 We review a trial court's evidentiary decisions for an abuse of discretion. People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). However, the determination whether a defendant was denied his right of confrontation presents a question of law that is reviewed de novo. People v Fackelman, 489 Mich 515, 524; 802 NW2d 552 (2011).
"'Hearsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the...
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