STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 31, 2003 v No. 235191 Calhoun Circuit Court CURTIS JOHN-LEE BANKS, LC No. 00-002668-FH Defendant-Appellant. Before: Murray, P.J., and Sawyer and Fitzgerald, JJ. PER CURIAM. Defendant was convicted, following a jury trial, of fleeing and eluding in the third degree, MCL 257.602a, and driving on a suspended license, MCL 257.904. He was sentenced to one and a half to ten years in prison on the fleeing and eluding conviction and to a consecutive term of six months on the suspended license conviction. He now appeals and we reverse and remand. Officer Jeffrey Coons of the Battle Creek Police Department observed a Camaro moving at a high rate of speed. Coons followed the Camaro, though he did not immediately turn on his overhead lights or siren because there was another vehicle between him and the Camaro. The Camaro made some turns and Coons turned on his overhead lights once the intervening traffic cleared. Shortly thereafter, the Camaro turned into an alley and the driver fled the vehicle on foot. Coons did not see where the suspect ran to, but a witness indicated that the suspect had entered a brown house. After entering the house, Coons saw defendant come out of a bedroom wearing only his boxer shorts. Looking in the bedroom, Coons saw a checked shirt, which matched the suspect s shirt. By this point, other officers had arrived at the scene. Coons went back to his patrol car to review the videotape to see if he could confirm defendant s identity as the driver. While doing so, he was directed by radio to return to the house as defendant had admitted to being the driver. Defendant raises two issues on appeal, one of which is dispositive. Defendant argues that he was denied effective assistance of counsel because counsel failed to move to have his statement admitting to driving the Camaro suppressed from evidence. We agree. Sgt. David Walters stayed with defendant in the house while Officer Coons went back to his patrol car. Sgt. Walters testified regarding defendant s statement as follows: -1-
Q. Okay. So was he free to leave? A. I would say right then, no; not free to leave, because we were still investigating the incident. An arrest hadn t been made, but no; I would not have let him leave; no. * * * Q. Okay. At any time, while you were with Mr. Banks in the brown house, did you advise him of his rights? A. No. Q. And did you place him under arrest? A. No. Q. Okay. So you did not advise him of his rights, but you considered him a suspect in this case. A. That s correct. Yes. Q. And then you testified that you struck up a conversation? A. Yes. Q. Okay. And they [sic then?] you asked him why not just tell me what, exactly did you say? A. Well, I introduced myself so he knew who I was, and I said why don t you just tell me were you driving the car or not? Q. Okay. And your testimony is that he said yes to you? A. Yes. On appeal, the prosecutor does not argue that this statement was not obtained in violation of the requirements of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), that an advice of rights precede any custodial interrogation. Indeed, defendant was clearly in custody, as reflected by Sgt. Walters statement that defendant was not free to leave, and clearly there was interrogation. 1 In any event, because the prosecutor does not argue that a suppression motion would have failed because defendant s statements were admissible, we will assume for 1 Defendant also made a statement at the jail to Officer Coons admitting to driving the car. However, it does not appear that the Miranda warnings had yet been read at that point, either. Moreover, the prosecutor does not argue that this second statement would have been admissible, rendering the admission of the first statement harmless. -2-
purposes of this appeal that a motion to suppress defendant s statement because of a Miranda violation would have been successful. The prosecutor does argue, however, that defense counsel s decision at trial not to challenge the admissibility of the statement constituted a matter of trial strategy. Specifically, the prosecutor points to the portion of defendant s closing argument where counsel essentially argued that the officer s testimony that defendant admitted to driving the car was too incredible to believe and, therefore, the officer must be lying. Specifically, defense counsel argued in part as follows: So while Mr. Banks is detained inside the house, you heard testimony there was a perimeter of officers around the house. There s one inside, couple outside, and while he s in there, he conveniently, right away, just says yeah; I was driving. They call around. Stop any further investigation. He just admitted it. That simple. Just, come on. Tell me you were driving the car. But they didn t bother to take a written statement. That would have been if he s admitting, yeah, he was the driver; he s just admitted the crime, let s have him write it down and sign it. They didn t do that. * * * As I said earlier, they need a confession from Mr. Banks because without it they don t have a case. Think about that. Why would he just say, out of the blue, yeah; it was me? While this argument may have been the most effective way for defense counsel to blunt the effect of defendant s statements, we fail to see what sound trial strategy would exist by allowing in defendant s admissions. Certainly defense counsel did attack the police investigation as being sloppy, arguing that once the confession was obtained, then nothing else was done to connect defendant to the car: the car was not dusted for defendant s fingerprints, the owner of the vehicle was not called to testify that he loaned the vehicle to defendant (it not being a stolen vehicle), no one in the house testified as to when defendant entered the house, nor were the shirt or the videotape entered as exhibits for the jury to view. Perhaps it was defendant s strongest argument, once his statements were admitted, to suggest that the police invented defendant s statements to cover up a sloppy investigation. However, we fail to see how allowing in the testimony regarding the statements would support the defense theory. Defendant could still have raised the sloppy investigation defense without the statements, pointing out that nothing other than Officer Coons testimony established that he was driving the car and that that testimony merely established that defendant generally looked like the suspect and that Coons saw a shirt that looked like the one worn by the suspect in the bedroom defendant came out of, a shirt that was never produced as an exhibit. Moreover, there is no need to suggest that the officers were being less than truthful if defendant s statements are not admitted. On the other hand, once defendant s statements are admitted, the defense theory was weakened, rather than strengthened. Defendant now has to explain away his admission. Further, if the jury accepts defendant s statements, it now provides a basis for explaining the sloppy -3-
investigation: there was no need to pursue the other evidence once defendant admitted to driving the car. Indeed, even the prosecutor in closing argument said he didn t know if the evidence of defendant s driving, other than defendant s statements, constituted proof beyond a reasonable doubt. But, the prosecutor went on, that question did not have to be answered because they did have defendant s statements, which established defendant as the driver beyond a reasonable doubt. In short, allowing in the statements undermined defendant s theory, not strengthen it. The standard of review for claims of ineffective assistance of counsel was set forth by the Supreme Court in People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001): A defendant seeking a new trial on the ground that trial counsel was ineffective bears a heavy burden. To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy the two-part test articulated by the United States Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). First, the defendant must show that counsel s performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the counsel guaranteed by the Sixth Amendment. Strickland, supra at 687. In so doing, the defendant must overcome a strong presumption that counsel s performance constituted sound trial strategy. Id. at 690. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687. To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel s error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Contrary to the prosecutor s argument, we see no basis for describing counsel s failure to move for suppression of defendant s statements as sound trial strategy. Simply put, allowing defendant s statements in and having to convince the jury that the officers were being untruthful in their testimony about the statements would make it more difficult, not less, to convince the jury of defendant s theory. Furthermore, without defendant s statements in evidence, the outcome of this trial is very much in question. No one testified that they saw defendant driving the car. The witness who testified that she saw the suspect running towards the brown house could not establish that the suspect actually entered the brown house. Even Officer Coons testified that defendant was the person he saw coming out of the bedroom dressed only in boxer shorts, not that defendant was the person he saw driving. Without defendant s statement, the only evidence linking defendant to the crime is that he matched the description of the driver, a shirt matching that worn by the driver was found in the same room as defendant, and defendant was sweating when Coons spoke with him. While a jury might convict on such evidence, as the prosecutor acknowledged during his closing argument, it was defendant s statements that kept the jury from having to decide if reasonable doubt existed based on that evidence. -4-
For the above reasons, we conclude that defendant was denied the effective assistance of counsel when counsel failed to move to suppress defendant s statements to the police. We conclude that there exists a reasonable possibility of a different result had defense counsel made the suppression motion. In light of our disposition of this issue, we need not address defendant s other issue, whether there was sufficient evidence to support his conviction. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ David H. Sawyer /s/ E. Thomas Fitzgerald -5-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 31, 2003 V No. 235191 Calhoun Circuit Court CURTIS JOHN-LEE BANKS, LC No. 00-002668-FH Defendant-Appellant. Before: Murray, P.J., and Sawyer and Fitzgerald, JJ. Murray, P.J. (dissenting). The majority concludes that defendant is entitled to a new trial because he was the recipient of the ineffective assistance of counsel during his one day jury trial held in the Calhoun County Circuit Court. Although the majority correctly concludes that defendant s trial counsel s failure to object to the admission of his confession fell below an objectively reasonable standard, trial counsel s failure to object did not prejudice defendant in light of the facts establishing his guilt beyond a reasonable doubt. Accordingly, I respectfully dissent. I. Statement of Facts and Procedural History The trial in this case was a short one, taking only one day with a total of only four witnesses being presented by both sides and no exhibits being submitted to the jury. In its case in chief, the prosecutor presented the testimony of Battle Creek police officer Jeffery Coons, Maryland Reid, and former Battle Creek police officer David Walters. The only witness testifying for defendant was defendant himself. In rebuttal, the prosecutor once again called Officer Coons. Following closing arguments by both counsel, the trial court instructed the jury which returned guilty verdicts the following day. The facts set forth before the jury were rather straightforward. At approximately 11:30 p.m. on June 6, 2000, uniformed Battle Creek police officer Jeffrey Coons was patrolling the downtown Battle Creek area in a black and white marked vehicle. At a stop sign, Officer Coons spotted a gray Camaro that was passing a pickup truck at approximately 50 mph. The street on which the Camaro was driving was posted as 30 mph. After the Camaro passed, Officer Coons notified a police dispatcher that he was going to pursue the speeding Camaro. After pulling out onto the road, the pickup truck that the Camaro had passed was between Officer Coons and the Camaro. However, the Camaro aggressively turned right heading westbound down another road. Officer Coons proceeded in the same direction and activated his vehicle s overhead lights. The -1-
Camaro then immediately turned into an alley and, as Officer Coons turned into the alley, the Camaro was already pulling over to the right-hand side of the alley while the driver was simultaneously jumping out the driver side door 1. The driver then fled on foot. Meanwhile, the Camaro continued forward and struck some trees on one side of the alley. Officer Coons stopped his vehicle, went and turned off the Camaro, and proceeded on foot in the direction of the fleeing suspect. Officer Coons identified the fleeing suspect as a dark-complected black male, approximately 5 8, with short hair, who was wearing a blue checkered shirt and some shorts. Officer Coons noted that the suspect had proceeded in the direction of a Clark gas station. As he proceeded toward the gas station, he could not locate the suspect but saw a woman sitting on a porch. The woman, Maryland Reid, informed Officer Coons that the subject had run past her house and towards a brown apartment building located across from the gas station. After arriving at the brown apartment building located across from the gas station, 2 Officer Coons questioned several persons in front of the building, none of whom matched the description of the suspect. The front apartment looked vacant, so Officer Coons proceeded to the back of the apartment building where the other apartment was located. Officer Coons knocked on the door, a woman answered, who gave him permission to enter the apartment. There were several people in the living room area, none of who matched the description of the suspect. However, when Officer Coons went into the dining room, a black male walked out of the bedroom who appeared to be the same subject who had fled the Camaro. Although the subject was only wearing white boxer shorts at the time, Officer Coons testified that he was sweating when he came out of the room. Additionally, Officer Coons testified that on the bed inside the bedroom from where the subject had exited was a blue checkered shirt matching the one the suspect had worn, and several pairs of shorts on the floor that were similar to the one worn by the suspect. Only several minutes had passed between Officer Coons leaving the Camaro and his finding defendant in the apartment. By this time, other officers had arrived at the scene. Officer Coons returned to his vehicle to review the video tape equipment located in his police car. After partially reviewing the tape, Officer Coons was contacted by the officers on the scene who indicated that defendant had admitted to driving the vehicle. Therefore, Officer Coons discontinued reviewing the tape. The jury was presented with testimony supporting the aforementioned facts, as well as testimony from Officer Walter to the effect that defendant admitted that he had driven the Camaro. Additionally, Maryland Reid testified that she had encountered Officer Coons and informed him that the suspect had run across her yard and towards the brown apartment. Defendant took the stand and denied that he was the driver of the Camaro and testified that he had been in that bedroom for several hours because he was hung over after being intoxicated the night before. As noted, the jury returned a guilty verdict on both charges. 1 There was only one occupant in the vehicle. 2 Officer Coons testified that the distance between the parked Camaro and the brown apartment building was four to five hundred feet, and that he arrived at the house within a minute or so of leaving the Camaro. -2-
II. Ineffective Assistance of Counsel In order to merit reversing a criminal conviction because of ineffective assistance of counsel, the defendant must show that his trial counsel s conduct fell below an objective standard of reasonableness and was prejudicial, thereby denying the defendant a fair trial. People v Wilson, 242 Mich App 350, 354; 619 NW2d 413 (2000), citing People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). As previously noted, the majority correctly concluded that because defendant s statement at the apartment was a custodial statement made without the benefit of a Miranda warning, Miranda v Arizona, 384 US 436; 86 SCt 1602; 16 L Ed 2d 694 (1996), defendant s trial counsel s failure to object to the statement fell below an objectively reasonable standard. However, showing insufficient performance is not sufficient to overturn a jury verdict. Under the second prong of Strickland 3 a defendant must demonstrate a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different.... People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome. People v Carbin, 463 Mich 598, 600; 623 NW2d 884 (2001). Upon review of the entire transcript, I am convinced that defendant has not established that he was prejudiced by his counsel s failure to object to the admission of his statement. That is, in light of the evidence presented by the prosecution tying the events together for the jury, there is no reasonable probability of a different outcome had the statement not been admitted. People v Toma, supra. The fact that the confession took place was noted in the testimony of Officer Coons and Walters only in passing reference. The vast majority of the testimony presented to the jury surrounded the pursuit of the Camaro, and Officer Coons actions between turning off the Camaro and locating the defendant. The evidence before the jury was more than sufficient to allow the jury, even without defendant s statement, to connect the dots of this incident and conclude beyond a reasonable doubt that: 1) Officer Coons was in uniform and driving a marked vehicle on the day at issue; 2) the initial road upon which the Camaro was speeding and fleeing was posted at 30 mph; 3) while pursuing the Camaro, Officer Coons activated his vehicle s overhead lights; 4) the driver of the Camaro, both before and after the overhead lights had been engaged on the marked vehicle, fled from Officer Coons by driving and then running from the scene; 5) defendant met the physical description of the suspect running from the Camaro; 6) defendant was located in the precise area where the suspect had been running toward as identified by both Officer Coons and Maryland Reid, and 7) when defendant was found, he was sweating and had in the room the shirt and shorts meeting that worn by the suspect. Although defendant generally denied all the allegations by his testimony that he had been in the room for several hours while this all transpired, there was no independent evidence contradicting that offered by the prosecutor. Accordingly, in my view, in light of the straightforward evidence presented on all the elements of the crime, defendant would have been convicted beyond a reasonable doubt even in the absence of defendant s statement. MCL 257.602a(1) and (3). Accordingly, although not perfect, defendant received a fair trial as he was not prejudiced by counsel s conduct. MCL 257.602a(1) and (3); People v Toma, supra. 3 Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). -3-
This conclusion is not altered by anything stated by the prosecutor regarding defendant s statement during closing and rebuttal argument. The record reveals that during his closing argument, the prosecutor did not emphasize defendant s confession. Instead, the prosecutor took the jury step by step through the elements of fleeing and eluding in the third degree, and argued to them that all the evidence presented established each of the elements and by applying common sense, they could find the defendant guilty beyond a reasonable doubt. After defendant s counsel made his closing arguments, the prosecutor gave his rebuttal. In that rebuttal, the prosecutor responded to defense counsel s argument that the confession was fabricated by the police. Most of these arguments, however, went to the credibility of defendant, who had given several statements that were subject to potential disbelief. Hence, in view of the totality of the circumstances surrounding the evidence and arguments presented by the parties, I cannot conclude that the conduct of defendant s trial counsel prejudiced him to the extent that he did not receive a fair trial. Consequently, I would affirm. /s/ Christopher M. Murray -4-