People v. Russell, Docket No. 304159.

• Citation: 825 N.W.2d 623,297 Mich.App. 707
• Decision Date: 04 September 2012
• Docket Number: Docket No. 304159.
• Parties: PEOPLE v. RUSSELL.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 707

825 N.W.2d 623

PEOPLE

v.RUSSELL.

Docket No. 304159.

Court of Appeals of Michigan.

Submitted June 13, 2012, at Detroit.

Decided Sept. 4, 2012, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.

Phillip D. Comorski, for defendant.

Before: KIRSTEN FRANK KELLY, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

KIRSTEN FRANK KELLY, P.J.

Defendant appeals as of right his jury trial convictions of assault with intent to do great bodily harm less than murder, MCL 750.84, and reckless driving causing serious impairment of a body function, MCL 257. 626. Defendant was sentenced to 19 to 120 months' imprisonment for his assault with intent to do great bodily harm less than murder conviction and 5 to 60 months' imprisonment for his reckless driving causing serious impairment of a body function conviction. We previously entered an order granting defendant's motion to remand so that

the trial court can conduct an evidentiary hearing and defendant-appellant may move for a new trial on the issue of ineffective assistance of counsel. In addition to the issue of defense counsel's failure to produce a witness, the parties may also address whether defense counsel was ineffective for not objecting to the closure of the courtroom during voir dire and the reasons for closing the courtroom. [ People v. Russell, unpublished order of the Court of Appeals, entered December 15, 2011 (Docket No. 304159).]

The trial court held a Ginther¹ hearing, found that trial counsel had been ineffective for failing to call a witness, and granted defendant's motion for a new trial. We hold that the trial court complied with the remand order but erred by granting defendant's motion for a new trial. We affirm defendant's convictions and sentences.

I. BASIC FACTS

The victim, Deshun Battle, and an associate of the victim, Dijon Deal, went to defendant's hotel room, seeking the return of Deal's laptop computer. After defendant had failed to emerge from the hotel room to return the computer, Battle observed a computer in defendant's truck and pointed it out to Deal. Deal grabbed a crowbar and began applying the crowbar against the window of defendant's truck, as if to break the window. Defendant came out to the parking lot and indicated that he would retrieve the computer. At that point, Battle decided that he did not want anything more to do with the situation. Battle got into his own vehicle, drove it around a corner and parked it in order to fix his speakers. Instead of retrievingthe computer as promised, defendant got in his truck, and drove away. Deal pursued defendant on foot. Defendant claimed that he had been looking in his rearview mirror when he crashed into the back of Battle's vehicle, pinning Battle between the two vehicles. Battle suffered extensive injuries, including the amputation of one of his legs. The prosecution argued that defendant had intentionally rammed his vehicle into Battle. Defendant denied that his driving was reckless or that he had intended to cause Battle harm; instead, defendant explained that it was simply an accident and that he had not been looking where he was driving because he had been watching Deal in his rearview mirror.

The jury convicted defendant of assault with intent to do great bodily harm less than murder and reckless driving causing serious impairment of a body function. Defendant appealed his convictions and we granted his motion to remand for a Ginther hearing on defendant's claim that defense counsel was ineffective for failing to investigate and call a key witness and for failing to object to the closing of the courtroom during voir dire.

II. THE GINTHER HEARING

At the Ginther hearing defendant's girlfriend, Kiesha Yates, testified that she was with defendant at the hotel. She heard loud noises outside their hotel room and saw two men banging on defendant's truck, one with a crowbar, and one with a “shiny metal thing.” Defendant then exited the room. Yates saw defendant get into his truck and drive off. She testified that the two men had chased after defendant's vehicle with objects in their hands. Yates gave the police a written statement at the scene; however, she was not contacted by defense counsel David Lankford.

Defendant testified that during trial preparation he told Lankford that Yates was with him at the time of this incident and wished to have her called as a witness. Lankford told defendant that he did not feel comfortable calling civilian witnesses.

Lankford testified that he was aware of Yates and another woman being witnesses to this incident. Lankford never talked to Yates or the other woman personally; however, he did review Yates's police statement. Lankford believed that Yates's statement that two men had chased defendant's vehicle was inconsistent with and contradictory to his theory of the case that Battle was hit with the front of defendant's vehicle. Lankford assumed that the two men Yates referred to in her statement were Battle and Deal.

The trial court ruled as follows:

The witness that was not called is Kiesha Yates. She testified that Mr. Russell was her boyfriend. She was in the motel room and she heard loud banging noises outside. She looked out the window and saw two men banging on Mr. Russell's S.U.V. One had a crowbar and the other man had a bright, shiny object in his hand. Mr. Russell then went outside and got into the truck, started the engine and drove away. The two men ran after him both holding onto the objects that they had in their hand.

This testimony is extremely important. It contradicts the testimony of both alleged victims Mr. Battle and Mr. Deal.

David Lankford, the defendant's attorney, testified that Mr. Russell did tell him about the testimony of Miss Yates and another woman. He believed that Miss Yates' testimony as told to him by Mr. Russell contradicted his theories and the physical evidence. He did not, however, indicate a theory that was contradictedor the physical evidence that was contradicted.

Mr. Russell did say that he only saw one man running after his S.U.V., but the statement is not contradicted by Miss Yates because she had a view entirely different than Mr. Russell. She was viewing the vehicle from the outside and Mr. Russell was viewing whoever was chasing him only through the windows of the car.

It was ineffective assistance of counsel for Mr. Lankford not to call Miss Yates, and even more so not to speak with her, the other female witness and any other witnesses. It is often a mistake to rely only on witnesses' statements and not speak with the witness in person or at least by telephone.

Not only does Miss Yates' testimony contradict and impeach the testimony of Mr. Battle and Mr. Deal, it supports the testimony of Mr. Russell. Clearly a different result could have occurred with this testimony.

The trial court rejected defendant's claim that the courtroom had been closed during jury voir dire and declined to grant relief on that basis.

The matter is now before us after remand.

III. SCOPE OF REMAND ORDER

From the outset, we reject the prosecution's argument that the trial court's order granting defendant a new trial exceeded the scope of this Court's remand order.

When an appellate court remands a case with specific instructions, it is improper for a lower court to exceed the scope of the order. K & K Constr., Inc. v. Dep't of Environmental Quality, 267 Mich.App. 523, 544, 705 N.W.2d 365 (2005). Again, in relevant part, the order provided:

The Court orders that the motion to remand pursuant to MCR 7.211(C)( l ) is GRANTED, and the matter is remanded to the trial court so that the trial court can conduct an evidentiary hearing and defendant-appellant may move for a new trial on the issue of ineffective assistance of counsel. In addition to the issue of defense counsel's failure to produce a witness, the parties may also address whether defense counsel was ineffective for not objecting to the closure of the courtroom during voir dire and the reasons for closing the courtroom.

... The trial court is to hear and decide the matter within 56 days of the Clerk's certification of this order. Defendant-appellant must also file with the Clerk of this Court copies of all orders entered on remand within 14 days after entry.

The trial court is to make findings of factand a determination on the record. [Emphasis added.]

We also retained jurisdiction “in the cause and the time for proceeding with the appeal in this Court begins upon issuance of an order in the trial court that finally disposes of the remand proceedings.” It would be meaningless for this Court to explicitly direct that a motion be filed without necessarily permitting the trial court to either deny or grant the motion. This is particularly true when the trial court was specifically directed to make a “determination on the record.” We could not have been clearer that the trial court had the ability to and was, in fact, directed to make such a determination. Therefore, the lower court order granting defendant's motion for a new trial did not exceed this Court's remand order.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he was denied the effective assistance of counsel. We disagree. “We review for an abuse of discretion a trial court's decision to grant or deny a new trial. An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes.” People v. Terrell, 289 Mich.App. 553, 558–559, 797 N.W.2d 684 (2010) (citation omitted). “Whether a person has been denied the effective assistance of counsel is a mixed question of fact and constitutional law. We review the trial court's findings of fact at a Ginther hearing for clear error, and review questions of constitutional law de novo.” People v. McCauley, 287 Mich.App. 158,...