Opinion
No. 346574
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RICHARD RAYSHAWN LYTE, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2017-004273-FC Before: SAWYER, P.J., and LETICA and REDFORD, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 30 to 40 years' imprisonment for armed robbery and five years' imprisonment for felony-firearm. We affirm.
Defendant argues on appeal that the trial court abused its discretion when it permitted the prosecution to introduce other-acts evidence. Defendant also argues that he was denied his constitutional right to the effective assistance of counsel. We disagree.
I. FACTUAL BACKGROUND
On April 25, 2017, Marjorie Fair was robbed at gun point by two men. Fair was finishing a cigarette in her car when a small black car drove into the parking space next to her. Defendant and a passenger exited the small black car and approached Fair's open front driver's side window. The passenger pointed a gun at Fair and demanded her money. Fair pushed the passenger's gun away from her face and sounded the horn of her car. Defendant stepped onto the running board of Fair's car, reached into her car and across Fair, knocked her hand off of the horn, and took Fair's work bag. Fair's work bag was found later that day in a small, black car that was abandoned in Detroit, Michigan.
The small, black car in which Fair's work bag was found was stolen from Elizabeth Bochnikh six hours prior to Fair's robbery. Bochnikh's black Honda Civic was stolen after two men approached her with a gun and demanded her money. Bochnikh did not have any money so the two men stole her overnight bag which contained her car keys.
During the investigation, Warren Police Officer Timothy Pasternacki, an evidence technician, swabbed Bochnikh's car for DNA. The DNA swabs were sent to the Michigan State Police Crime Lab. Ashley Bolahan, a forensic scientist at the Michigan State Police Forensic Crime Lab, concluded that defendant's DNA constituted 96% of the DNA on the gear shifter of Bochnikh's car. Additionally, during a photographic lineup, Fair identified defendant as the man who reached into her car and stole her work bag.
II. OTHER-ACTS EVIDENCE
Defendant argues that the trial court abused its discretion when it permitted the prosecution to present evidence of Bochnikh's robbery under MRE 404(b)(1). We disagree. This Court reviews the trial court's decision to admit evidence for an abuse of discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). "An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no excuse for the ruling made." Id.
MRE 404(b)(1) concerns the admission of other-acts evidence and represents a "deeply rooted and unwavering principle that other-acts evidence is inadmissible for propensity purposes." People v Denson, 500 Mich 385, 397; 902 NW2d 306 (2017). MRE 404(b)(1) operates to prevent a jury from convicting a defendant because of his bad character, rather than because the defendant is guilty of the charged offense. Id. MRE 404(b)(1) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.Evidence of other acts is admissible under MRE 404(b)(1) if "(1) the evidence is offered for a proper purpose, i.e., 'something other than a character to conduct theory,' (2) the evidence is relevant under MRE 402, as enforced by [MRE] 104(b), 'to an issue or fact of consequence at trial,' and (3) the probative value of the evidence is not substantially outweighed by its potential for undue or unfair prejudice under MRE 403." People v Dobek, 274 Mich App 58, 85; 732 NW2d 546 (2007), quoting People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended on other grounds 445 Mich 1205 (1994). The prosecution bears the burden to demonstrate that the other-acts evidence is relevant to a proper purpose. People v Mardlin, 487 Mich 609, 615; 790 NW2d 607 (2010).
Defendant does not contest that the evidence of Bochnikh's robbery was offered for a proper purpose. The prosecution sought to introduce Bochnikh's robbery as evidence of identity and of a common plan or scheme. Other-acts evidence is admissible under MRE 404(b)(1) to prove identity or a common plan or scheme. See People v Jackson, 498 Mich 246, 270-271; 869 NW2d 253 (2015) (recognizing that other-acts evidence is admissible to prove identity and common plan or scheme). The trial court concluded that the evidence of Bochnikh's robbery was admissible under MRE 404(b)(1) as proof of "identity, and not identity in terms of modus operandi, and to demonstrate a common plan or scheme." The trial court specifically noted that both of these reasons were valid reasons to admit the other-acts evidence because they are beyond propensity. Therefore, the other-acts evidence was admitted for a proper purpose.
Defendant argues that even if the evidence was admitted for a proper purpose, the evidence was not relevant. We disagree.
Under MRE 404(b)(1) other-acts evidence must be logically relevant to a material fact in the case. Mardlin, 487 Mich at 615. Other-acts evidence is logically relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401; People v Sabin (After Remand), 463 Mich 43, 56-57; 614 NW2d 888 (2000). "[E]vidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system." Id. at 63. Logical relevance is not limited to circumstances in which the uncharged act is identical to the charged act or circumstances when the two acts are part of a continuing plot. Id. However, there must be more than a mere similarity in the result of the conduct. Id. at 64-65. There must be "a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." Id. (quotation marks, emphasis, and citation omitted.)
Defendant argues that there are very few similarities between the robberies of Bochnikh and Fair. Defendant contends that the only similarities are that each robbery was committed by two men, a gun was used, and the victims were women. Defendant notes that the fact that Bochnikh was an older woman and vulnerable and Fair was not, evidences that the two robberies are distinct. We disagree.
When considering the two robberies, the trial court did not abuse its discretion when it concluded that evidence of Bochnikh's robbery was relevant. Bochnikh's robbery and Fair's robbery contained common features beyond the mere commission of a robbery. Both robberies occurred while the female victim was alone in or standing next to her car. Each robbery involved two robbers who wore hooded sweatshirts and bore a gun. During each robbery, the robbers demanded money from Bochnikh and Fair and ultimately took their personal belongings from them. Moreover, not only did the two robberies occur in a similar manner and to similarly situated victims, the robberies occurred only three miles apart from one another and within a six-hour timespan. As such, there is a concurrence of common features between the robberies of Bochnikh and Fair that can be explained as individual manifestations of a general plan. See id.
Defendant also argues that evidence of Bochnikh's robbery was not relevant because the similar characteristics between the two robberies are common of most armed robberies and do not indicate a plan or scheme. However, the common plan or scheme does not need to be distinctive or unusual to be admitted under MRE 404(b)(1). People v Ackerman, 257 Mich App 434, 440-441; 669 NW2d 818 (2003) (quotation marks and citation omitted). Rather, it need only support the inference that the defendant employed a plan when committing the offense. Id. Moreover, this Court has held that the trial court's decision on a close evidentiary question ordinarily is not considered an abuse of discretion. Aldrich, 246 Mich App at 113. Therefore, it was not an abuse of discretion for the trial court to conclude that the other-acts evidence was relevant.
Defendant also argues that it was an abuse of discretion for the trial court to admit the evidence of Bochnikh's robbery because it had a low probative value and any probative value it had was substantially outweighed by the danger of unfair prejudice. Defendant argues that the evidence "interjected considerations extraneous to the merits of the lawsuit, did not directly prove the fact for which it was offered, and increased the likelihood that the jurors would engage in character-to-conduct reasoning." Defendant contends that the evidence could have been limited to the "fact that the car was stolen from a woman in Hamtramck the night before the Fair robbery and that it was located less than 24 hours later with [] Fair's belongings inside as well as [defendant's] DNA." We disagree.
Under MRE 404(b)(1), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice and there are other means of proof. MRE 403; People v McGhee, 268 Mich App 600, 609; 709 NW2d 595 (2005). Unfair prejudice occurs when there is a tendency that evidence with little probative value will be given undue weight by the jury and when the evidence is extraneous to the merits of the case. Id. at 614. Furthermore, evidence is unfairly prejudicial when its use would be inequitable to the parties. People v Waclawski, 286 Mich App 634, 672; 780 NW2d 321 (2009) (quotation marks and citations omitted).
There is no doubt the evidence of Bochnikh's robbery was prejudicial to defendant's case. However, "all evidence elicited by the prosecution is presumably prejudicial to a defendant to some degree, and MRE 403 seeks to avoid unfair prejudice." People v Smith, 282 Mich App 191, 198; 772 NW2d 428 (2009). When concluding that the other-acts evidence was admissible, the trial court stated:
So as a whole, the Court does find that the evidence is being offered for a proper purpose, that it's relevant, it doesn't exceed its prejudicial nature, and I should also note that although there was an armed robbery, as [defense counsel] has indicated, there has been no charges, there is no at this point evidence that the defendant actually committed the armed robbery, so the Court does not find that it's more prejudicial than probative at this point.
Evidence of Bochnikh's robbery was highly probative to show that defendant was acting pursuant to a common plan or scheme when he robbed Fair. The evidence was necessary for the nonpropensity purpose of explaining the timing and circumstances of Fair's robbery and necessary to rebut defendant's position that he did not commit the robbery. See Jackson, 498 Mich at 276-277 (concluding that other-acts evidence was not unduly prejudicial because it provided the jury with context regarding the timing and circumstances of the defendant's actions and to counter the defendant's defense).
The other-acts evidence was also necessary to provide the jurors with context and an understanding for how Fair's belongings were found in Bochnikh's car. Additionally, the probative value was not outweighed by the danger of unfair prejudice because, as noted by the trial court, the jury was informed that defendant had not been charged in Bochnikh's robbery, that the Wayne County Prosecutor's Office denied Warren Police Detective Robert George's warrant request, and that Bochnikh never identified defendant as the individual who robbed her. As such, it was left to the jury to determine the weight of the evidence. Moreover, the trial court also provided the jury with a limiting instruction on the use of the other-acts evidence, M Crim JI 4.11. The Michigan Supreme Court has also noted that MRE 403 "determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of the testimony" by the trial court. VanderVliet, 444 Mich at 81. Therefore, the probative value of the evidence regarding Bochnikh's robbery was not substantially outweighed by the risk of undue prejudice.
Defendant also argues that the trial court abused its discretion by admitting the other-acts evidence because the facts of the two robberies were "inextricably intertwined." Defendant asserts that there is no res gestae exception to MRE 404(b)(1). The Michigan Supreme Court has clearly held that there is no res gestae exception to MRE 404(b)(1) and that the admissibility of other-acts evidence is governed by MRE 404(b)(1) and (2). Jackson, 498 Mich at 275. The trial court did not abuse its discretion when it mentioned, as part of its ruling, that Bochnikh's robbery was "inextricably intertwined" with Fair's robbery. The trial court simply mentioned that the two robberies were factually intertwined and went on to analyze the admissibility of Bochnikh's robbery in accordance with MRE 404(b)(1). Therefore, the trial court did not merely admit the other-acts evidence on the basis of the facts being intertwined, but rather, provided a full analysis supporting its ruling in accordance with MRE 404(b)(1).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the right to the effective assistance of counsel. We disagree.
To preserve a claim of ineffective assistance of counsel for appellate review, a defendant must move the trial court for a new trial or for a Ginther hearing. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014); see People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Failure to move for a new trial or for a Ginther hearing limits this Court's review to mistakes that are apparent in the appellate record. People v Foster, 319 Mich App 365, 390; 901 NW2d 127 (2017) (citations omitted). "If the record does not contain sufficient detail to support defendant's ineffective assistance claim, then he has effectively waived the issue." Id. Defendant did not move in the trial court for either a new trial or for a Ginther hearing. Therefore, review is limited to the existing record. Foster, 319 Mich App at 390.
Whether a defendant has been denied the effective assistance of counsel is a mixed question of law and fact. People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019). This Court reviews questions of law de novo and a trial court's findings of fact for clear error. Id. "Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made." People v Thompson, 314 Mich App 703, 720; 887 NW2d 650 (2016).
The effective assistance of counsel is presumed, and a defendant bears the burden to overcome the strong presumption that the assistance of his counsel was sound trial strategy. People v Rosa, 322 Mich App 726, 741; 913 NW2d 392 (2018); see also People v Jackson, 313 Mich App 409, 431; 884 NW2d 297 (2015) (citation omitted). To establish the ineffective assistance of counsel, a defendant must establish that " '(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different.' " Rosa, 322 Mich App at 74, quoting People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). "The defendant was prejudiced if, but for defense counsel's errors, the result of the proceeding would have been different." People v Heft, 299 Mich App 69, 81; 829 NW2d 266 (2012).
Defendant first argues that his trial counsel was ineffective for failing to file a pretrial motion to suppress the statements which he made to the police after he invoked his right to counsel. Defendant argues that because trial counsel had a duty to seek suppression of inadmissible evidence prior to trial, the failure to do so was either an unreasonable omission or part of an unreasonable trial strategy. We disagree.
The decision to file a pretrial motion is a matter of trial strategy. People v Traylor, 245 Mich App 460, 463; 628 NW2d 120 (2001). It is well established that this Court will not second-guess counsel's decisions regarding trial strategy and will not assess counsel's competence with the benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). After the jury was dismissed on the second day of trial, defendant's trial counsel raised her concerns regarding the prosecution's intent to offer the video of defendant's interrogation and the statements therein. Defendant's trial counsel explained that she received the video when she was appointed as defendant's trial counsel, but did not address its admission prior to trial "because as a whole the tape was never going to be presented to the jury." The trial court reviewed the video of the interrogation and heard the attorneys' arguments regarding its admissibility. The trial court concluded that only the first five minutes of the 45-minute video were admissible because defendant unequivocally invoked his right to counsel five minutes into the interrogation. The record indicates that the failure of defendant's trial counsel to file a pretrial motion to suppress defendant's statements was a strategic decision. Defendant's trial counsel explained that she did not file a pretrial motion to suppress or otherwise address the admissibility of the video pretrial because she believed that the video was inadmissible and could be objected to during trial. Therefore, defendant failed to overcome the strong presumption that his trial counsel was acting in accordance with sound trial strategy.
Defendant failed to demonstrate that he was prejudiced by trial counsel's failure to file a pretrial motion to suppress. Defendant argues that he was prejudiced by his trial counsel's failure to file a pretrial motion to suppress because the prosecutor referred to defendant's inadmissible statements and displayed the statements that defendant made during the interrogation on the courtroom television screens during his opening statement. We disagree.
During opening statement, the prosecutor stated, with regard to the interrogation, that
[y]ou're going to hear the defendant made the following statements. I've been in a lot of cars. My DNA could be on a lot of stuff. I've been in all types of cars. Ya'll [sic] got my DNA or whatever, I've been in that car before. You got something with me on it because someone came and hollered at me, pulled up, I got in the car. Whatever someone else got going on and I was in the car or anything, that ain't got nothing to do with me.However, despite these statements, the video of the interrogation was never introduced to the jury or referenced again during the trial, and the trial court ruled that only the first five minutes of the video were admissible. Moreover, the jury was informed not to take notes during the opening statements and closing arguments, and instructed that the attorneys' opening statements and closing arguments are not evidence. Therefore, on the basis of the existing record, defendant failed to demonstrate that there is a reasonable probability that the outcome of the proceeding would have been different had his trial counsel filed a pretrial motion to suppress.
Defendant also argues, in his Standard 4 Brief, that he was denied the effective assistance of counsel because his trial counsel failed to obtain Fair's 911 call or "any computer aided dispatch records." Defendant argues that because his trial counsel failed to obtain this evidence, his trial counsel failed to investigate the statements which Fair made during the 911 call which could have been used for impeachment. Defendant asserts that Warren Police Detective Sergeant Gregory Booton and Fair could have been impeached with these records by showing that Fair was not in a state of shock when she first spoke to the police. We disagree.
Defendant has failed to support this claim with any evidence of the substance of the 911 call. Defendant merely speculates that Fair was not in a state of shock and that she may have stated she could not see the robber's face during the 911 call. Therefore, absent any evidence of the substance of the 911 call or regarding the extent of trial counsel's pretrial investigation, defendant failed to establish the necessary factual predicate to establish the ineffective assistance of his trial counsel.
Defendant has also failed to offer any evidence that the 911 call would benefit him or that the failure to obtain it denied him a substantial defense. A defendant is denied a substantial defense if he can demonstrate that, but for trial counsel's errors, there is a reasonable probability that the proceeding would have resulted differently. People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015), citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A reasonable probability is a " 'probability sufficient to undermine confidence in the outcome.' " People v Jurewicz, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 342193); slip op at 2, quoting Strickland, 466 US at 669; 104 S Ct at 2056 (2019). Defendant has not offered any proof that the 911 call would have benefited him or altered the result of the trial. Rather, defendant's trial counsel addressed Fair's inconsistent identifications and impeached Fair with her inconsistent statements on numerous occasions throughout the trial. Therefore, on the basis of the existing record, defendant has not overcome the presumption that he received the effective assistance of counsel.
Defendant next argues, in his Standard 4 Brief, that his trial counsel was ineffective for failing to review the record for evidence of police misconduct. Defendant argues that had his trial counsel reviewed the record, she would have found evidence of police misconduct during the photographic lineup when Fair identified defendant as the man who robbed her. Defendant contends that the police may have acted improperly when Fair identified him as the man who robbed her. We disagree.
The record does not support defendant's claim that his trial counsel failed to review the evidence in this case. The record also does not support defendant's claim that police misconduct was evident. Rather, Detective Sergeant Booton testified regarding the photographic lineup procedure which he and Officer Patazyck utilized to eliminate any improprieties with the identification. The issue of effective assistance of counsel is waived if review of the record does not support the defendant's claims. Sabin (On Second Remand), 242 Mich App at 658-659. Moreover, defendant also failed to establish that there is a reasonable probability that his trial counsel's alleged failure to review the record affected the outcome of the trial.
Defendant next argues, in his Standard 4 Brief, that his trial counsel was ineffective for failing to call the dispatcher, Officer Patazyck, and the receptionist who called 911 for Fair as witnesses. Defendant asserts that Officer Patazyck should have been called to impeach Detective Sergeant Booton by "elicit[ing] material inconsistencies in his testimony" and demonstrating that "the[re] was likely some suggestiveness on the part of police." Defendant asserts that the 911 dispatcher and receptionist should have been called to testify that Fair stated immediately after the incident that she did not see the robber's face. Defendant also asserts that the testimony of the 911 dispatcher and receptionist will demonstrate that the police impermissibly influenced Fair to identify defendant as the man who robbed her. We disagree.
An attorney's decisions of what evidence to present and whether to call witnesses are considered matters of trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). The failure to call or consult with a witness only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). A substantial defense is one that may have altered the outcome of the trial. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009) (quotation marks and citation omitted). It is well established that this Court will not second-guess counsel's decisions regarding trial strategy and will not assess counsel's competence with the benefit of hindsight. Horn, 279 Mich App at 39.
As a preliminary matter, during trial defendant voiced his interest in having the dispatcher from the Hamtramck Police department be called as a witness. Defendant's trial counsel explained that she did not believe that the dispatcher was a necessary witness because her testimony would be inadmissible hearsay and unnecessarily cumulative. The trial court agreed with defendant's trial counsel. Therefore, we conclude that defendant's trial counsel's failure to call the 911 dispatcher was a matter of trial strategy.
Moreover, defendant has failed to support this claim with any evidence, affidavit, or offer of proof of the substance of these three potential witnesses' purported testimony. Defendant has also failed to offer any evidence that their testimony would have benefited him and that the absence of their testimony prejudiced him. Therefore, absent any evidence of the 911 dispatcher's, Officer Patazyck's, or the receptionist's potential testimony, defendant failed to establish the necessary factual predicate to establish the ineffective assistance of his trial counsel. See People v Carbin, 463 Mich 590, 601; 623 NW2d 884 (2001) (holding that, absent any evidence regarding the substance of the potential witness's testimony, the defendant failed to establish an ineffective assistance of counsel claim).
Finally, defendant also argues, in his Standard 4 Brief, that his trial counsel was ineffective for failing to challenge Warren Police Officer Timothy Pasternacki as to why he did not obtain or preserve a fingerprint from the gear shifter button. We disagree.
Decisions regarding how to question witnesses are presumed to be a matter of trial strategy. Horn, 279 Mich App at 39. A review of the record reveals that defendant's trial counsel asked Officer Pasternacki about testing the button on the car's gear shifter for fingerprints three times. Officer Pasternacki explained that he did not dust the button on the gear shifter for fingerprints because, in his experience, there is often not a viable fingerprint on the gear shifter. Therefore, on the basis of the existing record, defendant's trial counsel did not fail to question Officer Pasternacki regarding fingerprinting the button on the gear shifter. Defendant also failed to establish that further questioning would be objectively reasonable and that he was prejudiced by his counsel's failure to assert that Officer Pasternacki destroyed the fingerprint from the gear shifter button.
Affirmed.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ James Robert Redford