Opinion
No. 351862
01-14-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JONVON MATLOCK, 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 UNPUBLISHED Wayne Circuit Court
LC No. 18-007987-01-FH Before: K. F. KELLY, P.J., and STEPHENS and CAMERON, JJ. PER CURIAM.
Defendant was convicted by a jury of aggravated stalking, MCL 750.411i(2); malicious destruction of a building causing damage of $1,000 or more but less than $20,000, MCL 750.380(3)(a); and malicious use of a telecommunications device, MCL 750.540e(1). He was sentenced to 60 months' probation on each charge, with the first 11 months to be served in jail. Defendant appeals as of right. We affirm.
I. BACKGROUND
In May 2018, defendant's on-again, off-again girlfriend ("the victim") permanently ended their relationship. During the following four-month period, defendant communicated with the victim via text messaging, the FaceTime application, and telephone calls in which he threatened the lives of both the victim and their shared daughter, KB. Defendant also went to the victim's home while she was away and destroyed a number of items of property, including the victim's home security cameras and exterior windows. The victim petitioned for, and received, a personal protection order (PPO) against defendant. Defendant received notice of the PPO, yet he continued to make threatening remarks to the victim and again went to the victim's home, destroying more of her property.
Defendant was convicted and sentenced as previously noted. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he is entitled to a new trial having been denied the presumption of innocence and effective assistance of counsel because of the assertions made by his trial counsel to the jury during opening statements and closing arguments. We disagree.
A. ISSUE PRESERVATION AND STANDARD OF REVIEW
To preserve an issue of ineffective assistance of counsel, a defendant must move the trial court for a new trial or a Ginther hearing. People v Head, 323 Mich App 526, 538-539; 917 NW2d 752 (2018). It is undisputed that defendant never moved the trial court for a new trial or a Ginther hearing on this issue, so it is unpreserved. Id.
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
The issue of whether a defendant received effective assistance of counsel afforded under the United States and Michigan Constitutions is a mixed question of law and fact. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). Constitutional questions are reviewed de novo and questions of fact are reviewed for clear error. Id. Clear error exists when "the reviewing court is left with a definite and firm conviction that the trial court made a mistake." People v Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018). However, when a defendant fails to properly preserve the issue of ineffective assistance of counsel, as here, our review is limited to mistakes apparent from the record. Head, 323 Mich App at 539.
B. ANALYSIS
Reviewing courts presume effective assistance of counsel—therefore, defendants bear a heavy burden to prove to the contrary. Trakhtenberg, 493 Mich at 52, citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). The establishment of an ineffective assistance of counsel claim is a two-part test (the "Strickland test"). People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). First, the defendant must use an "objective standard of reasonableness" to show that trial counsel's actions did not amount to the representation guaranteed by the Sixth Amendment, US Const, Am VI. Trakhtenberg, 493 Mich at 51; People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Second, the defendant must demonstrate prejudice by showing that "but for [trial] counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich at 51.
Strickland, 466 US at 690. --------
The first part of the Strickland test asks whether trial counsel's actions were objectively reasonable. Trakhtenberg, 493 Mich at 51. With respect to concessions made by trial counsels, only complete concessions of guilt will amount to ineffective assistance of counsel. People v Krysztopaniec, 170 Mich App 588, 596; 429 NW2d 828 (1988). However, concessions to lesser offenses will not necessarily constitute ineffective assistance of counsel—nor are concessions made with a defendant's consent. People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994); Krysztopaniec, 170 Mich App at 595-596. "[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade." Florida v Nixon, 543 US 175, 192; 125 S Ct 551; 160 L Ed 2d 565 (2004). In fact, this Court has consistently held that "where the evidence obviously points to [a] defendant's guilt, it can be better tactically to admit guilt and assert a defense or to admit guilt on some charges but maintain innocence on others." People v Matuszak, 263 Mich App 42, 60; 687 NW2d 342 (2004). And, "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Savage, 327 Mich App 604, 617; 935 NW2d 69 (2019). Finally, "[t]his Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsight." People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Defendant makes two arguments in support of his claim of ineffective assistance of counsel. First, defendant argues that trial counsel was ineffective because he conceded during closing arguments that defendant was guilty of malicious destruction of property. Second, defendant contends that trial counsel's failure to make an argument as to malicious use of a telecommunications device during opening statements and closing arguments effectively denied him the presumption of innocence.
As for the first issue, defendant argues that trial counsel acted unreasonably when he told the jury that the prosecution had "met its burden" for malicious destruction of property. "To be convicted of malicious destruction of property, a defendant must have intended to injure or destroy the property in question." People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999). The prosecution must prove the "amount of the damage caused by the defendant . . . by showing either the difference in the property's fair market value or the reasonable cost to repair or restore the property." People v LaBelle, 231 Mich App 37, 38; 585 NW2d 756 (1998).
The prosecution presented evidence that defendant came to the victim's home and destroyed her security cameras. Video evidence played for the jury showed defendant in the act of destroying the cameras. The defendant confirmed that he destroyed the victim's windows. The victim testified about the value of the destroyed items. She stated that she paid $688.97 to replace the security cameras. She also testified that it would cost approximately $12,000 to replace the windows, although she had not yet done so. Trial counsel's cross-examination of the victim focused on the value of the security cameras and the windows. He questioned whether the victim or defendant had originally paid for the security cameras. He asked the victim why she had only presented the court with one estimate for the windows, when in reality she had received five estimates from other companies. He pointed out that the estimate provided by the victim was for "high-end" Pella windows and that the victim had received the estimate in 2016, two years before defendant actually broke the windows.
During closing arguments, trial counsel stated that, "I believe the prosecution has met its burden of the malicious destruction of property because you have to determine the value of those windows and it has never been established." Defendant contends that this statement amounted to a concession of his guilt. While trial counsel indeed made the statement above as asserted by defendant, trial counsel also argued that defendant should not be convicted of the offense because the prosecution had not met its burden in proving the value of the windows. Trial counsel's strategy here is clear—make a partial concession that defendant had broken the windows (a fact supported by defendant's own testimony), while at the same time argue that the prosecution did not prove the value of the windows to the jury. Thus, as trial counsel asserted in closing argument, the prosecution's failure to prove the value of the windows—an essential element of malicious destruction of property—means that the jury could not convict defendant on that charge.
Trial counsel in this case was faced with a great deal of evidence against his client about the malicious destruction charge. In fact, the only thing defendant would not admit to was the value of the destroyed items. Thus, trial counsel decided to "tactically . . . admit guilt and assert a defense" by making a partial concession that defendant had committed some of the elements for malicious destruction of property. Matuszak, 263 Mich App at 60. Where trial counsel would not concede, and what is supported in the record, is trial counsel's argument that the prosecution had failed to prove the value element of this charge. Courts presume that trial counsels employ a reasonable strategy. Trakhtenberg, 493 Mich at 52. A defendant may only overcome that presumption on the basis of facts apparent from the record. Head, 323 Mich App at 539. Concessions "to lesser offenses" do not constitute ineffective assistance of counsel. Emerson, 203 Mich App at 349.
On this record, defendant fails to show how trial counsel's partial concession fell below an objective standard of reasonableness. Trakhtenberg, 493 Mich at 51. Instead, it was perfectly reasonable, and not ineffective, for trial counsel to "attempt[] to impress the jury with his candor and his unwillingness to engage in a useless charade." Nixon, 543 US at 192. Accordingly, we find that defendant's argument relative to the claimed "concession", fails the first part of the Strickland test. Trakhtenberg, 493 Mich at 51.
The second part of the Strickland test requires defendant to show that but for trial counsel's actions, the outcome of the trial would have been different. Trakhtenberg, 493 Mich at 51. Here, even if the jury had not heard trial counsel admit to defendant's culpability for malicious destruction of property, there was overwhelming evidence against defendant on this charge. Defendant's appeal makes no attempt to deny his admissions on the witness stand or even explain why these admissions are not sufficient on their own to prove defendant's guilt. Without a factual account to the contrary, we will not conclude that defendant was prejudiced simply because his trial counsel made a partial concession of his guilt during closing argument—especially in the face of the overwhelming evidence showing defendant's culpability to the charged offense. Head, 323 Mich App at 539. Even assuming that the statement was prejudicial to defendant, the jury in this case received an instruction from the trial court that "[a] person accused of a crime is presumed to be innocent" and "[t]he lawyers [sic] statements and arguments are also not evidence. They are only meant to help you understand the evidence and each side's legal theories." "Jurors are presumed to follow the court's instructions, and instructions are presumed to cure most errors." People v Mullins, 322 Mich App 151, 173; 911 NW2d 201 (2017). Any impermissible inferences made by the jury due to trial counsel's statements are presumed cured by the trial court's instructions because the jury is presumed to follow the instructions. Because there is nothing in this record to suggest that trial counsel's statement altered the outcome of the trial, defendant's argument regarding malicious destruction of property fails on the second part of the Strickland test. Trakhtenberg, 493 Mich at 51.
The next issue is whether it was unreasonable for trial counsel to decline to make an argument against the malicious use of a telecommunications device charge during opening statements and closing arguments. To be found guilty of this crime, the prosecution must prove that the "defendant . . . specifically intend[ed] to annoy, terrorize, or disturb the peace of another person, and the defendant . . . use[d] a telecommunications device to do so." In re JP, 330 Mich App 1, 14; 944 NW2d 422 (2019) (emphasis omitted), citing MCL 750.540e.
Similar to the preceding issue, trial counsel faced a substantial amount of evidence against defendant for the malicious use of a telecommunications device charge. In support of its case, the prosecution published countless threatening text messages from defendant to the victim. The victim testified about how the text messages and other communications caused her to fear for both her and KB's safety. Most incriminating however, was defendant's own testimony in which he admitted sending threatening communications to the victim as a form of "scare tactics."
The facts put forth by the prosecution and defendant met the essential elements for malicious use of a telecommunications device. Indeed, because defendant admitted to all of the elements of the crime while testifying, any argument for acquittal of the charge by trial counsel would have amounted to "advanc[ing] a meritless argument." Savage, 327 Mich App at 604. Moreover, by refusing to make that meritless argument and choosing instead to assert that defendant should be found not guilty of the crimes for which at least one element was in dispute, trial counsel plainly engaged in an "attempt[] to impress the jury with his candor and his unwillingness to engage in a useless charade." Nixon, 543 US at 192. Again, the presumption here is that trial counsel acted reasonably under the circumstances. Trakhtenberg, 493 Mich at 51. Without providing trial counsel's strategy the benefit of hindsight, and given trial counsel's obligation to maintain "candor" with the jury, the chosen strategy of refusing to comment on malicious use of a telecommunications device, and instead leaving the jury to simply consider the proofs presented by the prosecution, was reasonable. Rockey, 237 Mich App at 76-77; Nixon, 543 US at 192. Thus, without a factual account to support any other potential strategy, we find that defendant has failed to overcome the reasonableness standard under the first part of the Strickland test. Trakhtenberg, 493 Mich at 51.
Lastly, although not necessary, we note that defendant also failed to prove the second part of the Strickland test—whether trial counsel's failure to put forth an argument against malicious use of a telecommunications device changed the outcome of the trial. Trakhtenberg, 493 Mich at 51. Defendant asserts that trial counsel "essentially conceded" that defendant had no chance of winning on the malicious use of a telecommunications device charge and that trial counsel effectively "poisoned the jury's minds before evidence was presented." However, defendant fails to present any facts from the record to support his apparent argument that a different strategy by trial counsel would have made a difference. Specifically, even if trial counsel had argued that defendant should be found not guilty of malicious use of a telecommunications device, the jury still would have considered the documentary evidence of the text messages sent by defendant, the victim's testimony that she felt threatened and feared for her and KB's lives, and defendant's own testimony that he sent those text messages as a way to engage in scare tactics. Further, as stated for defendant's previous argument, the jury was instructed to presume that defendant was innocent and that a lawyer's statements were not evidence of defendant's guilt—therefore, it is presumed that the jury did not consider trial counsel's statements in rendering its verdict. In light of those undisputed facts, there is no "reasonable probability that the result of the trial would have been different" if trial counsel had decided to advocate for a not guilty verdict on that charge. Trakhtenberg, 493 Mich at 51. Consequently, even if there was some minor error in trial counsel's chosen strategy to decline an argument against malicious use of a telecommunications device, that error did not prejudice defendant, and thus, defendant does not prevail on the second part of the Strickland test. Id.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
/s/ Thomas C. Cameron