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Docket Number

Docket No. 95062.

Attorney(S)

John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Susan Randolph, Assistant Prosecuting Attorney, for the people. Carolyn A. Blanchard, for Sean Davis.

Judges

J.D. PAYANT, J.

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Smart Summary

Case Summary: In the Matter of Davis (Michigan Court of Appeals, Dec. 7, 1988)

Factual and Procedural Background

A referee of the Wayne County Probate Court, Juvenile Division, found appellant (Sean Davis) guilty of one count of felonious assault. The referee made appellant a temporary ward of the court and placed him on probation in his parents' home. Appellant's petition for review was heard by a judge of the Wayne County Probate Court, Juvenile Division, who affirmed the referee's findings. Appellant appealed as of right to the Michigan Court of Appeals.

The underlying charges arose from an altercation involving appellant and a co-defendant, Cordell Johnson, who were each charged with felonious assault against two complainants: Dwaine Campbell and Greg Nelson. Testimony established that appellant approached Nelson from behind and held a baseball bat across Nelson's neck while Johnson struck Nelson. Campbell testified he was shoved through a side door and sustained a cut requiring thirteen stitches, but Campbell did not identify who pushed him. Several other witnesses implicated a tall person named Al (Alonzo Garvin) as having chased and pushed Campbell into the door.

At trial, appellant sought to have Alonzo Garvin produced; appellant later waived Garvin's presence with the court's and defense counsel's assent. Appellant's father attempted to testify about conversations with Campbell and Nelson but was excluded after a hearsay objection. The referee granted Johnson a partial directed verdict on the Campbell-related count for lack of evidence that Johnson pushed Campbell. Appellant's motion to dismiss both counts against him was denied, but appellant was convicted only of the felonious assault on Nelson (holding the bat across Nelson's neck while Johnson hit Nelson).

Legal Issues Presented

Whether the trial court erred in refusing to allow the testimony of appellant's father (challenged on appeal both as a statement against interest under MRE 804(b)(3) and, on appeal only, as an admission of a party-opponent under MRE 801(d)(2)).
Whether appellant was denied effective assistance of counsel because trial counsel failed to question the complainants (Campbell and Nelson) about their ability to identify appellant.
Whether appellant was denied effective assistance of counsel because trial counsel failed to require the court to apprehend and produce Alonzo Garvin as a witness.

Arguments of the Parties

Appellant's Arguments

The trial court erred in excluding testimony by appellant's father; on appeal appellant asserted the excluded testimony would have shown that Campbell and Nelson were unable to identify appellant prior to the first court date. At trial appellant argued the proposed testimony fell within the hearsay exception for statements against interest (MRE 804(b)(3)). On appeal appellant additionally argued the testimony was not hearsay because it was an admission of a party-opponent under MRE 801(d)(2).
Appellant contended he was denied effective assistance of counsel because his attorney failed to question Campbell and Nelson about their ability to identify appellant.
Appellant contended he was denied effective assistance of counsel because his attorney failed to require the court to apprehend Alonzo Garvin, a potential witness implicated as the person who may have pushed Campbell through the door.

People's Arguments

The opinion does not contain a detailed account of the people's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harvey v Security Services, Inc., 148 Mich. App. 260; 384 N.W.2d 414 (1986), lv den 425 Mich. 863 (1986)	Principle that objections based on one ground are insufficient to preserve an appellate attack based on different grounds (preservation of error).	The court cited Harvey to support the proposition that because appellant's counsel argued the testimony at trial only under the statement-against-interest exception (MRE 804(b)(3)), the appellate argument that the testimony was an admission under MRE 801(d)(2) was not preserved for review.
Joba Construction Co, Inc v Burns Roe, Inc., 121 Mich. App. 615; 329 N.W.2d 760 (1982)	Support for the rule that objections on one ground do not preserve other grounds for appeal.	Used by the court to reinforce the preservation rule discussed in the opinion (that alternative appellate grounds not raised at trial were forfeited).
People v Margaret Jones, 48 Mich. App. 334; 210 N.W.2d 396 (1973), lv den 391 Mich. 785 (1974)	Statement that a witness in a criminal proceeding is not a "party" for purposes of admission as a party-opponent unless the witness is a defendant.	The court relied on Margaret Jones to conclude that Campbell and Nelson were not party-opponents under MRE 801(d)(2), undermining appellant's belated appellate argument that the excluded testimony was an admission of a party-opponent.
People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977)	Establishes the two-part standard for reviewing ineffective-assistance-of-counsel claims: (1) overall performance must meet ordinary training and skill; (2) if counsel makes a serious mistake, defendant must show a reasonably likely chance of acquittal but for the mistake.	The court applied the Garcia two-part test and concluded appellant's counsel met the required standard and did not make a serious mistake that would have given appellant a reasonably likely chance of acquittal.
People v Jenkins, 99 Mich. App. 518; 297 N.W.2d 706 (1980)	Authority indicating that under the first part of the Garcia test the harmless-error rule is not applied.	The court cited Jenkins to explain the proper application of the Garcia standard (not applying harmless-error review to the first prong) when evaluating the ineffective-assistance claims presented by appellant.

Court's Reasoning and Analysis

The court proceeded in a stepwise fashion, grounding its analysis in rules of evidence and the standard governing ineffective-assistance claims:

Evidence Exclusion / Hearsay: At trial appellant's father was excluded after a hearsay objection. The court noted the trial argument was that the testimony fell within the statement-against-interest exception (MRE 804(b)(3)). The court explained that the declarant must be unavailable as a prerequisite to that exception; because appellant relied on that ground at trial, the trial court did not err in sustaining the objection under MRE 804(b)(3).
Preservation of Issues on Appeal: The court emphasized preservation rules (citing MRE 103 and authority), explaining that an objection based on one ground at trial does not preserve a different ground on appeal. Appellant's appellate claim that the testimony was admissible as a party-opponent admission under MRE 801(d)(2) was not raised at trial and therefore was not preserved for appellate review.
Party-Opponent Analysis: Even addressing appellant's belated contention, the court applied precedent (People v Margaret Jones) to conclude that Campbell and Nelson are not party-opponents under MRE 801(d)(2) because a witness in a criminal proceeding is not a "party" unless the witness is a defendant. Thus the appellate theory would not have succeeded on its merits.
Relevance of the Excluded Testimony: The court analyzed the practical effect of the excluded testimony. It found that identification of the person who held the bat across Nelson's neck was not a significant issue (numerous witnesses saw Sean in the group and saw him holding the bat), and that the contested identification related primarily to who pushed Campbell through the door — an act for which appellant was ultimately not convicted because the referee found no evidence tying appellant to that push. Therefore, the excluded testimony would have had little value to appellant's defense on the convicted count.
Ineffective Assistance Claims — Legal Standard and Application: The court applied the two-part Garcia standard. For the first prong (overall competence), the court considered counsel's conduct and found no performance below the standard of ordinary training and skill. For the second prong (prejudice), the court asked whether counsel's conduct was a serious mistake that, but for which, the defendant would likely have been acquitted. The court concluded:
- Regarding failure to question complainants on identification: counsel pursued whether anyone had seen appellant push Campbell, and that pursuit was apparently successful because appellant was acquitted of the Campbell-related counts. Identification concerning the Nelson assault was not contested in any significant way, so counsel's failure to further question the complainants did not constitute deficient performance producing prejudice.
- Regarding failure to procure Alonzo Garvin: counsel stated on the record that he waived Garvin's presence with his client's consent. Garvin was implicated only for the Campbell incident, not the Nelson assault for which appellant was convicted. Garvin's testimony likely would have added no more to appellant's defense on the Nelson charge than did the testimony of other defense witnesses. Thus counsel's actions did not fall below the Garcia standard nor result in prejudice.

Holding and Implications

Holding: The Michigan Court of Appeals affirmed the trial court's ruling, specifically affirming the decision of the referee. In the court's words: Affirmed.

Implications: The direct effect of the decision is that appellant's conviction for one count of felonious assault (the assault on Greg Nelson by holding a baseball bat against his neck while Johnson hit Nelson) and the related disposition (temporary wardship and probation in his parents' home as ordered by the referee) were upheld. The opinion does not announce or purport to establish any new legal precedent; it applies existing evidentiary rules and the established Garcia ineffective-assistance framework to the facts of this juvenile delinquency proceeding. The court found no preserved evidentiary error and no ineffective assistance of counsel sufficient to require reversal.

Source: Summary based exclusively on the text of the provided opinion, In the Matter of Davis, Michigan Court of Appeals, Dec. 7, 1988 (J.D. Payant, J.).

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IN THE MATTER OF DAVIS

J.D. PAYANT, J.

A referee of the Wayne County Probate Court, Juvenile Division, found appellant guilty of one count of felonious assault. Appellant was made a temporary ward of the court and placed on probation in his parents' home. Appellant's petition for review was heard by a judge of the Wayne County Probate Court, Juvenile Division. The reviewing judge affirmed the findings of the referee. Appellant appeals as of right.

Appellant and Cordell Johnson were each charged with one count of felonious assault against Dwaine Campbell and one count of felonious assault against Greg Nelson. Campbell and Nelson testified that appellant and Johnson started a fight with them. Appellant approached Nelson from behind and held a baseball bat across Nelson's neck while Johnson hit Nelson.

Campbell testified that he ran to the side door of his house which was on the corner. Somebody pushed him from behind into the door. When Campbell turned around, he saw appellant and another person. As a result of being pushed through the door, Campbell cut his arm and required thirteen stitches.

Campbell testified that he did not know who pushed him through the door. However, several witnesses said that a tall person named Al chased Campbell up to Campbell's house and pushed him through a door. Appellant said that he had subpoenaed Alonzo Garvin to appear, but he had not appeared. Appellant asked that the court issue a writ of apprehension. However, appellant's attorney later informed the court that he had spoken to appellant and his parents and they were willing to waive the presence of Alonzo Garvin.

Appellant's father testified that when he received notice to appear in court, he and appellant went to Campbell's house to talk about the incident. They met with Campbell and Nelson. A hearsay objection was made, and appellant argued that the testimony fell within the hearsay exception for a statement made against interest. The objection was sustained, and appellant's father was not allowed to testify as to any conversation that took place at Campbell's house.

The referee granted Johnson a partial directed verdict as to the count alleging the felonious assault of Campbell. The referee said there was no evidence that Johnson had pushed Campbell through the door. A motion to dismiss both counts against appellant was denied. However, appellant was found guilty of only one count of felonious assault, committed against Nelson by holding the baseball bat against Nelson's neck while Johnson hit Nelson.

Appellant's first argument is that the trial court erred in refusing to allow the testimony of appellant's father. Although not reflected in the record, appellant argues on appeal that his father would have testified that Campbell and Nelson were unable to identify appellant prior to the first court date. Error may not be predicated on a ruling that admits or excludes evidence unless a substantial right of a party is affected and a timely objection is made. MRE 103. Objections based on one ground are insufficient to preserve an appellate attack based on different grounds. Harvey v Security Services, Inc, 148 Mich. App. 260; 384 N.W.2d 414 (1986), lv den 425 Mich. 863 (1986); Joba Construction Co, Inc v Burns Roe, Inc, 121 Mich. App. 615; 329 N.W.2d 760 (1982).

In the present case, appellant argued at trial that the testimony was admissible under the exception to the hearsay rule for statements contrary to the declarant's interest. The trial court did not err in sustaining the objection. The declarant must be unavailable as a prerequisite to applying the statement against interest exception contained in MRE 804(b)(3).

However, on appeal, appellant challenges the ruling on the basis that the testimony is not hearsay because it is an admission of a party-opponent under MRE 801(d)(2). A challenge on this basis was not made at trial and is therefore not preserved for appellate review. Moreover, a substantial right is not affected by the referee's ruling. In addition, neither Campbell nor Nelson are party-opponents under MRE 801(d)(2), as a witness in a criminal proceeding is not a party unless the witness is a defendant. People v Margaret Jones, 48 Mich. App. 334; 210 N.W.2d 396 (1973), lv den 391 Mich. 785 (1974). Numerous witnesses testified that they knew Sean and they saw him in the group of people who were fighting. There was no significant issue of identification with regard to who held the baseball bat across Nelson's neck. The identification issue pertained to who pushed Campbell through the door. Appellant was found not guilty of the charges pertaining to Campbell because the referee noted that there was no evidence as to who pushed Campbell through the door. Therefore, appellant's father's testimony would have been of little value.

Appellant's second argument is that he was denied effective assistance of counsel because his attorney failed to question Campbell and Nelson about their ability to identify appellant. In People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977), our Supreme Court established a two-part standard of review for ineffective-assistance-of-counsel claims. First, trial counsel must overall "perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations." 398 Mich. 264. Under this first part of the test, the harmless-error rule is not applied. People v Jenkins, 99 Mich. App. 518; 297 N.W.2d 706 (1980). Even if counsel performed adequately under the first part of the test, a defendant could be denied a fair trial if, under the second part of the test, his attorney makes a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal. 398 Mich. 266.

We cannot say that appellant's counsel failed to perform adequately under either part of the Garcia test. Appellant's attorney did pursue the issue of whether anyone had seen appellant push Campbell through the door. Counsel's efforts in this regard were apparently successful since appellant was found not guilty with regard to the charges pertaining to Campbell. As discussed above, the identification issue was not significant with respect to the charges pertaining to Nelson. Therefore, appellant's counsel neither fell below the standard of ordinary training and skill nor made a serious mistake in failing to question complainants about their ability to identify appellant.

Appellant's third argument is that he was denied effective assistance of counsel because his attorney failed to require the court to apprehend Alonzo Garvin. However, appellant's attorney stated on the record that he was waiving the presence of Alonzo Garvin with the consent of his client. Moreover, Alonzo Garvin was implicated as the person who may have pushed Campbell through the door. His testimony with regard to the offense committed against Nelson would probably have been of no greater value than the testimony of the numerous other witnesses who testified for appellant. Therefore, appellant's attorney neither fell below the standard of ordinary training and skill nor made a serious mistake.

The trial court's affirmance of the decision of the referee is affirmed.

Affirmed.

IN RE DAVIS