People v. Reinhardt

• Decision Date: 31 May 1988
• Docket Number: Docket No. 94007
• Citation: 423 N.W.2d 275,167 Mich.App. 584
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Roy REINHARDT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 275

423 N.W.2d 275

167 Mich.App. 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Roy REINHARDT, Defendant-Appellant.

Docket No. 94007.

Court of Appeals of Michigan.

Submitted Jan. 7, 1988.

Decided April 4, 1988.

Released for Publication May 31, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

State Appellate Defender (by Richard B. Ginsberg), for defendant-appellant on appeal.

Before CYNAR, P.J., and BEASLEY and GLASER, ^* JJ.

CYNAR, Presiding Judge.

Following a jury trial, on March 27, 1986, defendant was found guilty of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). Defendant was sentenced to a prison term of from thirty-five to seventy years. He appeals as of right. We affirm.

The charges against defendant stemmed out of the alleged sexual abuse of the eight-year-old complainant in February or March 1985. The complainant's mother, Vivian, was alleged to have aided defendant in the commission of these two offenses. Defendant's theory of the case was that Gary, the complainant's father, pressured the complainant and her younger sister to fabricate the allegations against defendant in order to break up defendant's ongoing affair with his wife, Vivian.

Prior to the commencement of trial, defendant requested that his appointed counsel, George Bush, move to withdraw as counsel. At the hearing on the motion, defendant expressed his dissatisfaction with counsel's performance at the preliminary examination. Defendant did not request substitute counsel but sought to proceed pro se. Following a lengthy caution from the trial judge regarding the need for an attorney in this matter, the judge granted the motion.

Defendant appeared pro se at the pretrial hearing. The trial judge advised defendant that, should he change his mind and request appointed counsel, the judge would reappoint attorney Bush. Defendant stated that he did not want Bush to represent him and the case was set for trial.

On February 10, 1986, defendant appeared before the court to request that another attorney be appointed. The trial judge reappointed Bush.

The trial commenced on March 25, 1986. Department of Social Services foster care worker Kim Bejcek testified that she interviewed the complainant and her younger sister in March or April, 1985, in connection with allegations of sexual abuse. The complainant displayed behavior typical of a sexually abused child in that she appeared afraid, nervous, fidgety and constantly wrung her hands. Both girls were "extremely frightened" of defendant and were very distant and hostile towards their mother.

Patricia Reiss, a DSS protective services worker, testified that she interviewed the complainant with the use of anatomically correct dolls. The complainant was nervous, fearful and embarrassed; behavior typical of a sexually abused child.

The complainant's testimony revealed that defendant engaged in sexual intercourse with her. Defendant also touched her in the genital area with his hands. She stated that something "yellow" came out of defendant's penis. The complainant's mother assisted defendant in these acts by spreading the girl's legs apart. The complainant stated that these acts occurred more than one time.

The complainant's sister stated that she saw defendant touch the complainant in her "private place" with his hands. Their mother, Vivian, assisted defendant by spreading the girl's legs apart.

Lynn Butterfield, a family counselor at the Bay City Lutheran Child and Family Services, testified to seeing the complainant and her sister on a biweekly basis. She specialized in counseling sexually abused children. Such children are incapable of giving precise dates and sequence of events.

Psychologist Laura Patterson testified that she counsels sexually abused children. In order to determine whether the information of sexual abuse is coming from the child, she looks for common feelings or characteristics that a child may display. Most sexually abused girls feel guilty, angry and blame themselves. Patterson indicated that she gave the complainant a commonly used intelligence test, the Wechsler Intelligence Test. Over defense objection, and based on the test results, Patterson testified regarding the complainant's memory skills and indicated that she would have no problem recalling and discussing recent traumatic events.

At the conclusion of the prosecutor's proofs, defendant moved for a directed verdict alleging that the prosecutor had failed to prove penetration. The motion was denied. Defendant also moved to suppress evidence of his prior criminal record. The court denied the motion and ruled that defendant could be impeached with evidence of three prior misdemeanor convictions.

Gary, the complainant's father, testified for the defense. He admitted telling the complainant to make up allegations and tell her mother that defendant was touching her and her sister in order to stop defendant's ongoing affair with Vivian.

Defendant took the stand and denied the charges against him. The prosecution impeached defendant with evidence of his three prior convictions.

Following his convictions, defendant was scheduled for sentencing on April 28, 1986. Sentencing was adjourned in order for the prosecutor to present evidence that defendant had sexually abused the complainant's sister. On April 30, 1986, the younger sister revealed that defendant had touched her "private place" with his hands. Subsequently, defendant was sentenced. He now appeals raising five issues.

First, defendant argues that he is entitled to a new trial because the trial judge refused defendant's request for substitute counsel.

In People v. Ginther, 390 Mich. 436, 441-442, 212 N.W.2d 922 (1973), our Supreme Court set forth the standard for determining the circumstances under which an indigent defendant may be entitled to substitution of assigned counsel:

"An indigent defendant, entitled to the appointment of a lawyer at public expense, is not entitled to choose his lawyer. He may, however, become entitled to have his assigned lawyer replaced upon a showing of adequate cause for a change in lawyers.

"When a defendant asserts that his assigned lawyer is not adequate or diligent or asserts, as here, that his lawyer is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.

"A judge's failure to explore a defendant's claim that his assigned lawyer should be replaced does not necessarily require that a conviction following such error be set aside."

The trial court should elicit testimony from the attorney and defendant in order to assess any issues of fact. A full adversary proceeding, with counsel representing both the attorney and the defendant, is not required. People v. Ceteways, 156 Mich.App. 108, 119, 401 N.W.2d 327 (1986). The decision regarding substitution is within the sound discretion of the trial court and will not be upset on appeal absent a showing of abuse of that discretion. People v. Morgan, 144 Mich.App. 399, 401, 375 N.W.2d 757 (1985).

In this case, defendant argues that the trial judge abused his discretion by denying defendant's request for substitute counsel without properly inquiring into defendant's complaint. We disagree. A hearing was held on defense counsel's motion to withdraw. At this hearing, counsel indicated that the motion to withdraw was based on defendant's dissatisfaction with counsel's representation at the preliminary examination. In addition, defendant wanted to proceed pro se. Afterwards, defendant requested the appointment of another attorney. The trial court reappointed Bush because the trial judge found no reason why Bush could not adequately represent defendant. We believe that the testimony elicited at the initial hearing was sufficient to ensure that defendant would be competently represented at trial. The trial judge not only questioned the attorney, but also questioned defendant regarding why he did not want appointed counsel to continue representing him. As we indicated earlier, an adversary hearing was not required. Ceteways, supra. Thus, defendant has not established error.

Next, defendant alleges several mistakes by defense counsel indicating that defendant was deprived of the effective assistance of counsel. In People v. Garcia, 398 Mich. 250, 264-266, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977), the Supreme Court established a bifurcated test for ineffective assistance of counsel claims. First, counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Second, even though the first test is satisfied, counsel must not make a serious mistake but for which the defendant would have a reasonably likely chance of acquittal.

Generally, a motion for a new trial or for an evidentiary hearing is a prerequisite for appellate review unless the error is apparent from the record so as to permit this Court to decide the issue. People v. Stubli, 163 Mich.App. 376, 379, 413 N.W.2d 804 (1987). Trial counsel is presumed to have afforded effective assistance. This presumption can only be overcome by a showing of counsel's failure to perform an essential duty, which failure was prejudicial to the defendant. The burden is on defendant. Id.; People v. Carr, 141 Mich.App. 442, 367 N.W.2d 407 (1985). In this case, although defendant did not move for a new trial or for an evidentiary hearing, the record is sufficient to enable us to review his claims.

(A) Counsel's Failure to Object to the Rebuttal Testimony

Defendant contends that defense counsel failed to object to improper rebuttal testimony used to impeach defendant's key witness, the complainant's father. The father testified to telling the complainant and her sister to make up accusations of sexual abuse against defenda...