Michigan Court of Appeals Holds No Ineffective Assistance Of Counsel At Trial

On January 22nd, 2015, the Michigan Court of Appeals held in a criminal case that defendant's attorney was not ineffective for eliciting or failing to object at trial to testimony from a variety of witnesses about certain drug-related facts involving defendant. 

In People v. Cooper, Docket No. 318519, the Michigan Court of Appeals addressed a variety of ineffective assistance of counsel arguments from defendant. In sum, defendant sought a new trial based on his arguments that the pervasiveness of drug-related testimony at trial by several witnesses so infected the trial with unfair prejudice that defendant was entitled to a new trial.

The Court first recited the facts of the case:

Typical of many of the violent crimes committed in this state, the events leading to this case started off with the use of illegal narcotics, and quickly led to an escalation of criminal activity. In December 2012 the victim, Henry Merritt, allowed his adult daughter, Jessica Tabernero, and her daughter to live in his home with him. Jessica had a bad drug addiction. After her work ended at a local bar in the early morning hours of December 30, 2012, Jessica went to defendant’s brother-in-law, Eric Williams’s, home (where defendant also lived) and began using crack cocaine. Also present were defendant and his wife Leah, Williams, and Jessica Miller. All were, and had been, ingesting significant amounts of crack cocaine. Soon after her arrival, defendant asked Jessica to have sex with Leah as a birthday present to her; she agreed, and after doing so she exited the room and began showing signs of overdosing. While in that condition she stated that her father had raped her. Hearing this, defendant asked for her father’s name and address, left the house and picked up Leondre McCarver, defendant’s drug supplier, and proceeded to Merritt’s home.

Thus, in the early morning of December 30, 2012, Merritt heard a loud noise that sounded like a loud boom coming from his kitchen. Merritt went to his kitchen and saw two men, a black man and a white man whom Merritt identified as defendant, though he had never seen either man before. Merritt asked the two men why they were in his home, to which they responded: “We’re here to do a job.” After this interaction, Merritt was “subdued by both of them and beat mercifully [sic] around [his] face area.” The men then took Merritt to his bedroom, where defendant accused Merritt of having sex with Tabernero. Merritt told them that he did not have sex with his daughter, but that his ex-wife’s husband had done so.

Undeterred by Merritt’s statement, both men continued to beat and choke Merritt while also continuing to accuse him of having sex with Tabernero. Defendant told Merritt that if he had anything “relating to sex” in his home, defendant was going to kill him. After this, Merritt was in and out of consciousness. Eventually, the two men dragged Merritt to the bathroom, “[f]orcibly,” with a belt around his neck. Defendant and McCarver continued to beat Merritt in the bathroom.

Defendant then put Merritt in the bathtub, continued punching Merritt, and told McCarver to get a gas can that was just outside Merritt’s house. Defendant then doused Merritt with gasoline and said, “You’re going to feel it, you’re going to feel the wrath of me, you’re going to feel the pain.” Defendant then lit Merritt on fire. Merritt’s neck was the only part of his body that caught on fire.

Merritt prayed “the whole time out loud and to [himself] asking God to help [him].” The pain from the fire was indescribably hot, and Merritt endured the heat until the gasoline burned itself out. To help with the pain, Merritt turned on the shower. Defendant reacted violently after Merritt turned on the water, punching him repeatedly. After that defendant repeatedly hit Merritt’s head with a hammer. Merritt was lit on fire again, burning his neck and upper back. Eventually, defendant and McCarver left the bathroom, and Merritt moved a dresser to block the bathroom door. However, both men obtained reentry after they broke the door down.

Eventually, defendant and McCarver left. The damage to Merritt’s body was horrific. His middle finger was sliced off and he was stabbed in the arm either with a knife or the claw of a hammer. Merritt’s arm was broken, his neck and top part of his shoulders were burnt, and his face was bloody and swollen. Before getting help for his injuries, Merritt went downstairs in his home to smoke a cigarette. After he finally lit the cigarette, Merritt went outside and called for help: Merritt’s neighbors, Laurie Damon and Tori Helsel, came to his rescue. Both testified that his injuries were so horrific that they were surprised that he could talk. Merritt was evacuated by helicopter to a hospital.

Based on these facts defendant was convicted of the aforementioned crimes by a jury of his peers. After his appeal was filed, we granted defendant’s motion to remand for a Ginther hearing to develop his argument that he was denied the effective assistance of counsel. People v Cooper, unpublished order of the Court of Appeals, entered May 6, 2014 (Docket No. 318159). Based on the evidence at trial and the record developed during the hearing on remand, we now turn to defendant’s arguments on appeal.

The Court then addressed defendant's arguments that his attorney was ineffective at trial for eliciting or failing to object to a variety of drug-related statements made by witnesses. 

First, defendant contends that defense trial counsel improperly elicited testimony from Damon regarding drugs. Specifically, defense trial counsel asked Damon whether she knew defendant, and in response Damon testified that she knew defendant from her “past” because her child’s father, Mike Wotring, received pills from defendant. While Damon had never met defendant face-to-face, she was certain that defendant was the same person who knew Wotring and gave him pills some 10 years earlier . . .

. . . Defense trial counsel attempted to discredit Damon’s testimony, pursuant to defendant’s requests, by showing that Damon did not actually know defendant and that the Mr. Cooper she knew to be a drug dealer was not the same person as defendant. Thus, trial counsel’s performance with regard to questioning Damon was constitutionally effective.

Second, defendant contends that his trial counsel was ineffective for failing to object to the prosecution’s questioning of Detective Luann Bearden regarding police searches of two residences associated with defendant which resulted in narcotics being removed from at least one of the location searched . . .

. . . It is unclear how this testimony was prejudicial at all given defendant’s own unchallenged statements to Bearden that on December 29, 2012, defendant used “a lot” of drugs, including the use of crack cocaine. In other words, even if we rejected defense trial counsel’s testimony that this testimony “played into [defendant’s] trial strategy,” this additional fact was not prejudicial because of defendant’s admitted drug use. Consequently, defense trial counsel’s failure to object to the prosecution’s question does not constitute ineffective assistance of counsel. People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

Third, defendant contends that his trial counsel improperly “opened the door” to Miller testifying that defendant had previously assaulted her when she was high, prejudicing defendant. Once again, we disagree . . .

. . . Defense trial counsel’s questioning of Miller did allow Miller to testify about her fear of defendant because he had previously assaulted her. However, this was a consequence of the overall trial strategy in questioning Miller—which was to point out Miller’s heavy use of drugs and how it affected her perceptions. “A failed strategy does not constitute deficient performance.” People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008). Thus, defense trial counsel’s performance did not constitute ineffective assistance.

Fourth, defendant contends that defense trial counsel was ineffective for failing to object to McCarver’s testimony that defendant was his best customer and purchased $500 to $1,000 worth of crack cocaine each time that he purchased drugs from McCarver . . .

. . . Defense trial counsel’s decision not to object was trial strategy, based on the idea that McCarver’s testimony was unbelievable. Because this Court will not subsitute its judgment for counsel’s judgment as it relates to trial strategy, defendant’s argument that his trial counsel was ineffective for eliciting prejudicial testimony that defendant was involved in selling drugs fails. Unger, 278 Mich App at 242-243.