Docket No. 58434.
Decided March 22, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Susan I. Einowski, for defendant on appeal.
Before: BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.
On March 25, 1981, defendant was convicted after a bench trial of third-degree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), and was subsequently sentenced to a term of from 8 to 15 years imprisonment. He appeals as of right.
Defendant first argues that he was denied effective assistance of counsel by his attorney's failure to investigate a possible insanity defense. However:
"`A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately.' People v Jelks, 33 Mich. App. 425, 431; 190 N.W.2d 291 (1971)." People v Ginther, 390 Mich. 436, 442-443; 212 N.W.2d 922 (1973).
In other words, this Court will not review a claim for ineffective assistance of counsel based on allegations not supported by the record where no motion for a new trial or for an evidentiary hearing or a motion for remand has been filed. People v Hale, 99 Mich. App. 177; 297 N.W.2d 609 (1980). People v Snyder, 108 Mich. App. 754; 310 N.W.2d 868 (1981), and People v McDonnell, 91 Mich. App. 458; 283 N.W.2d 773 (1979), lv den 407 Mich. 938 (1979), are distinguishable. They held that a defendant had been deprived of the effective assistance of counsel where the counsel knew about a history of psychiatric disorders but neither sought a hearing nor investigated. In the present case, the record fails to show that defense counsel in fact failed to investigate. See People v Caldwell, 122 Mich. App. 618; 333 N.W.2d 105 (1983).
Defendant next argues that his right to confrontation was abridged. Although the victim's mother was present on the trial's first day, she refused to come the second day claiming that she could not miss another day of teaching school. After the trial judge denied the prosecutor's motion to strike her as a witness, the parties recessed. Immediately after, the following exchange occurred:
"With the consent of counsel and the defendant previously secured the court is arranging to have the testimony of the witness * * * taken by conference telephone. [She] is a school teacher * * * and was unable to come back to court today. She is going to be reached by telephone.
"I have here in the office the defendant, Herman Lawson, the prosecutor, the defense attorney and my bailiff and a sheriff's deputy and the court reporter. Let me ask counsel, is this procedure agreeable gentlemen and do you waive any defects of her not being personally visible before the court. Is this agreeable to counsel?
"Mr. Fell: On behalf of the defendant, we would agree to this procedure and have no objection.
"Mr. Mackie: People certainly have no objection, your Honor.
"The Court: Thank you, Mr. Mackie. Mr. Lawson, is that agreeable to you?
"The Defendant: Yes, it is."
A defendant's right of confrontation is guaranteed through three devices: cross-examination, the oath, and demeanor. California v Green, 399 U.S. 149; 90 S Ct 1930; 26 L Ed 2d 489 (1970); Mattox v United States, 156 U.S. 237; 15 S Ct 337; 39 L Ed 409 (1895). The specific problem in this case is that defendant was unable to view the witness's demeanor. See People v Niswonger, 87 Mich. App. 57, 60, fn 1; 273 N.W.2d 586 (1978). See also People v Williams, 123 Mich. App. 752; 333 N.W.2d 577 (1983) (R.M. MAHER, J., dissenting).
However, a defendant may validly waive his right of confrontation. Brookhart v Janis, 384 U.S. 1; 86 S Ct 1245; 16 L Ed 2d 314 (1966); People v Ashley, 42 Cal.2d 246; 267 P.2d 271 (1954). Yet, the present waiver was inadequate. A waiver must be knowingly and intelligently made. In fact, courts will "`indulge every reasonable presumption against waiver' of fundamental constitutional rights". Johnson v Zerbst, 304 U.S. 458, 464; 58 S Ct 1019, 1023; 82 L Ed 1461, 1466 (1937). Furthermore,
"To discharge [Johnson's] duty in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. * * * A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." Von Moltke v Gillies, 332 U.S. 708, 723-724; 68 S Ct 316, 323; 92 L Ed 309, 321 (1948). (Footnote omitted.)
The record in the present case fails to disclose that defendant was specifically told that this procedure violated his confrontation rights and that he could demand the witness's presence as a prerequisite to her giving testimony. Furthermore, the trial judge failed to inform defendant that not only would this witness not testify against him (if not physically produced), but the judge would consider CJI 5:2:14 (the missing witness instruction) while deliberating on the verdict.
In People v Miller, 121 Mich. App. 691; 329 N.W.2d 460 (1982), this Court held that a defendant could waive his right to a unanimous jury verdict. However, the defendant in that case had not made an adequate waiver because he had never been told on the record that the alternative to accepting a non-unanimous verdict was to have a mistrial declared.
The prosecutor argues that defense counsel adequately made such a waiver:
"The right of confrontation is not of such moment that it requires waiver by the defendant personally when he is represented by counsel. Such waiver as we have in this case is a trial tactic within the province of counsel." People v Johnson, 70 Mich. App. 349, 350; 247 N.W.2d 310 (1976).
However, Johnson should not be read too broadly. It specifically dealt with a defense counsel's decision to waive the defendant's right to demand that all res gestae witnesses be produced. See People v Johnston, 76 Mich. App. 332; 256 N.W.2d 782 (1977). The res gestae rule in Michigan strengthens the confrontation clause's guarantees. However, it is not as integral a part as cross-examination, the oath, and demeanor. As such, a defense counsel can waive this particular right for a defendant. On the other hand, the more integral rights of the confrontation clause must be personally waived by the defendant. In Brookhart, supra, the Supreme Court reversed the defendant's conviction because the record did not clearly show that the defendant himself (rather than defense counsel) waived his confrontation right to cross-examine the witnesses against him.
However, we believe that this violation was harmless. Although the constitution clearly prefers in-court confrontation, Ohio v Roberts, 448 U.S. 56, 65; 100 S Ct 2531, 2537; 65 L Ed 2d 597, 607 (1980); Palmieri v State, 411 So.2d 985 (Fla App, 1982), demeanor is only a secondary advantage of the confrontation clause. People v Tennant, 65 Ill.2d 401; 3 Ill Dec 431; 358 N.E.2d 1116 (1976), cert den 431 U.S. 918; 97 S Ct 2184; 53 L Ed 2d 229 (1977); State v Kaufman, 304 So.2d 300 (La, 1974); 5 Wigmore, Evidence (3d ed, 1940), §§ 1395, 1397. In the present case, the error was harmless beyond a reasonable doubt. Not only did the complainant's testimony go unrebutted, but defendant confessed. Furthermore, this was a bench trial and not a jury trial. See People v Lundberg, 364 Mich. 596; 111 N.W.2d 809 (1961).
Actually, the matter is a little aggravated because the witness's entire testimony was inadmissible. She testified about what her son had told her. However, Michigan no longer recognized the tender years exception. People v Kreiner, 415 Mich. 372; 329 N.W.2d 716 (1982). Furthermore, the statements could not be considered excited utterances. People v Gee, 406 Mich. 279; 278 N.W.2d 304 (1979); MRE 803(2). However, defendant failed to object to this testimony.
Defendant last argues that he should be resentenced because the trial judge improperly sentenced him as a third-felony offender. In fact, the supplemental information charging defendant as a third-felony offender was dismissed 11 days after sentencing.
The only evidence that the trial judge might have improperly sentenced him as a third-felony offender is the judgment of sentence to prison which lists his crime as "Habitual Offender — Third or Subsequent Felony Conviction". A trial judge may not sentence a defendant under an incorrect statute. People v Wilkins, 121 Mich. App. 813; 329 N.W.2d 500 (1982). However, both the indeterminate sentence record and the certified copy of record of sentence lists the offense as third-degree criminal sexual conduct. In fact, defendant's maximum sentence was no more than the maximum allowed for third-degree criminal sexual conduct. Yet, based on the record in front of us, we cannot tell for sure whether or not the trial judge impermissibly sentenced defendant as a third-felony offender. As such, without this factual record, the issue is not properly before this Court. Therefore, we are affirming his sentence without prejudice.