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People v. Stokes

Court of Appeals of Michigan

September 8, 2015


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          Wayne Circuit Court. LC No. 13-007518-FC.

         For PEOPLE OF MI, Plaintiff-Appellee: AMY SOMERS, DETROIT, MI.


         Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.


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          [312 Mich.App. 185] Michael J. Talbot, C.J.

         Christopher Wayne Stokes appeals as of right his convictions by jury of carjacking [1] and armed robbery. [2] The trial court sentenced Stokes as a second-offense habitual offender [3] to concurrent terms of 18 to 30 years' imprisonment for each conviction. We affirm Stokes's convictions, but remand for further proceedings consistent with this opinion.

         I. FACTS

         Stokes's convictions arise out of a carjacking that occurred near midnight on July 10, 2013. That night, Charles Jones drove into his driveway in Detroit. Stokes appeared and ordered Jones to hand over his car keys and cell phone. According to Jones, Stokes did so while pointing a pistol at Jones's head. Jones complied, and Stokes fled in Jones's vehicle. Stokes was charged with carjacking, armed robbery, and firearms offenses. At trial, Stokes presented several alibi witnesses. These witnesses generally testified that on the night of the carjacking, Stokes was at a " tattoo [312 Mich.App. 186] party" at a hair salon in Oak Park .[4] The jury found Stokes guilty of carjacking and armed robbery, but acquitted Stokes of the firearms offenses. Stokes now appeals as of right.



         Stokes argues that he is entitled to a new trial because a juror engaged in misconduct that denied him his right to a fair and impartial trial. We disagree. Stokes raised this issue in a motion for a new trial, which the trial court denied. " A trial court's decision to deny a motion for a new trial is reviewed for an abuse of discretion. An abuse of discretion occurs only when the trial court chooses an outcome falling outside the principled range of outcomes." [5] We review de novo a defendant's claim that he or she was denied the Sixth Amendment right to an impartial jury.[6]

         After the trial was complete, the attorneys and the judge interviewed the jurors. During this interview, one juror disclosed that he had conducted an experiment in his own home before deliberations were complete. This juror attempted to recreate the crime scene by pointing his own gun at a mirror. Although this juror did not share the results of the experiment with any other juror, Stokes argues that the experiment deprived him of a fair and impartial jury because the experiment influenced this single juror, who contributed to the verdict.

          [312 Mich.App. 187] Consistent with a defendant's right to a fair and impartial jury, " jurors may only consider the evidence that is

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presented to them in open court." [7] " Where the jury considers extraneous facts not introduced in evidence, this deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment." [8] To establish that the jury was influenced in a manner requiring reversal, a defendant must prove (1) that the jury was exposed to an extraneous influence, and (2) that this extraneous influence " created a real and substantial possibility that [it] could have affected the jury's verdict." [9]

         In People v Fletcher, this Court explained:

Traditionally, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict. The only recognized exception to this common-law rule related to situations in which the jury verdict was affected by extraneous influences. Stated differently, where there is evidence to suggest the verdict was affected by influences external to the trial proceedings, courts may consider juror testimony to impeach a verdict. However, where the alleged misconduct relates to influences internal to the trial proceedings, courts may not invade the sanctity of the deliberative process.
* * *
[T]he distinction between an external influence and inherent misconduct is not based on the location of the wrong, e.g., distinguished on the basis whether the " irregularity" occurred inside or outside the jury room. Rather, the nature of the allegation determines whether [312 Mich.App. 188] the allegation is intrinsic to the jury's deliberative process or whether it is an outside or extraneous influence.[10]

         In Fletcher, the jurors collectively reenacted the crime scene in the jury room using the gun that the defendant had used to commit the crime.[11] This Court found that the reenactment was not an extraneous influence because it " was closely intertwined with the deliberative process and was not premised on anything other than the jurors' collective account of the evidence presented in open court." [12] Similarly, in this case, the juror's experiment was closely intertwined with his deliberative process. The juror's experiment was an attempt to recreate the crime scene, apparently aimed at discovering how the crime was committed. Nothing indicates that the experiment was premised on anything beyond this juror's memory of the testimony. Accordingly, the experiment was not an extraneous influence and cannot be a basis for attacking the jury's verdict.

         Stokes relies on Doan v Brigano [13] for support. In Doan, a juror conducted an experiment in her home to determine if the defendant's testimony was truthful.[14] The juror then shared the results of her

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experiment with the rest of the jury.[15] The Sixth Circuit concluded that this experiment was an improper extraneous influence on the jury because by sharing the results of [312 Mich.App. 189] her experiment, the juror brought extraneous facts before the jury.[16] The present case is distinguishable. The juror in the instant matter did not share the results of his experiment with any other jurors, and thus, no extraneous facts were brought into the jury room. Because the juror that conducted the experiment did not " testify" as an expert witness to the other jurors, the experiment did not amount to an extraneous influence.[17] Accordingly, Stokes is not entitled to relief.


         Stokes next argues that the prosecution violated the rule of Brady v Maryland [18] by failing to disclose various pieces of evidence. Stokes also argues that trial counsel was ineffective for failing to request access to Stokes's cell phone until the first day of trial. We disagree.

          This Court reviews due process claims, such as allegations of a Brady violation, de novo.[19] " Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." [20] A trial court's factual findings, if any, are reviewed for clear error.[21] The ultimate question whether counsel was ineffective is a constitutional issue reviewed de novo.[22]

          [312 Mich.App. 190] " A defendant has a due process right of access to certain information possessed by the prosecution." [23] A Brady violation occurs if: " (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." [24] " The government is held responsible for evidence within its control, even evidence unknown to the prosecution, without regard to the prosecution's good or bad faith . . . . Evidence is favorable to the defense when it is either exculpatory or impeaching." [25] " To establish materiality, a defendant must show that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." [26]

         Stokes argues that the prosecutor committed a Brady violation by failing to provide Stokes with access to his own cell phone. On the first day of trial, Stokes's counsel requested access to the cell phone in order to find contact information for the individual who prepared a flyer advertising the tattoo party. The prosecutor agreed to allow defense counsel to view the cell phone for this purpose. The following

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day, defense counsel acknowledged that she obtained the contact information from another source and that the witness was being interviewed. The same witness testified at trial.

         Stokes's Brady claim fails for a variety of reasons. First, the record does not support Stokes's assertion that the cell phone was not provided to him. When Stokes requested access to the cell phone, the prosecutor offered to make it available. The record does not [312 Mich.App. 191] establish whether the cell phone was ever provided to Stokes. Stokes now asserts that the cell phone was lost by the police or the prosecutor and never provided to him. The only mention of the cell phone having been lost appears in a statement by defendant's appellate counsel during a hearing held in the trial court regarding Stokes's motion for a new trial. It appears that counsel, after reviewing the transcripts, simply assumed that the cell phone was lost when no mention of it was made after the first day of trial. We refuse to adopt this assumption, which has no apparent basis in the record. Stokes has not established that the prosecutor actually suppressed evidence.

         Nor has Stokes satisfied the third prong by demonstrating that the cell phone contained material information that could have altered the outcome of the trial. To succeed on his claim, Stokes must demonstrate that the cell phone contained evidence that, had it been disclosed, would have been reasonably likely to lead to a different result.[27] Stokes first argues that the cell phone contained contact information for the individual who prepared the flyer. However, Stokes obtained this information from another source, and the witness testified at trial. Stokes also argues that the cell phone contained a tracking program that could have shown his location on the night of the carjacking. However, Stokes provides no evidence of what information this tracking program would have provided, nor does he explain why the cell phone was necessary to obtain the information. Stokes also asserts that the cell phone contained " additional alibi information," but fails to explain what alibi information would be found on the cell phone. We simply have no basis to conclude that [312 Mich.App. 192] the cell phone contained any information that was reasonably likely to lead to a different result in this case.

         Stokes also argues that trial counsel was ineffective for failing to seek access to the cell phone until the day of trial, at which point Stokes assumes the cell phone had been lost. " Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise." [28] " To prove a claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell below objective standards of reasonableness and that, but for counsel's error, there is a reasonable probability that the result of the proceedings would have been different." [29] As our Supreme Court has recognized, the materiality prong of the Brady test requires the same showing of prejudice required to establish ineffective assistance of counsel.[30] Because Stokes cannot demonstrate that any material evidence was withheld, he cannot demonstrate that any failure by his attorney to seek this evidence earlier warrants relief.


         Next, Stokes argues that, under

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Alleyne v United States,[31] his Sixth Amendment right to a jury trial was violated when the trial court made factual findings to determine Stokes's minimum sentence. We agree. " A Sixth Amendment challenge presents a question of constitutional law that this Court reviews de novo." [32]

          [312 Mich.App. 193] Michigan's legislatively enacted sentencing scheme requires a trial court to score a number of variables that take into account a defendant's past criminal history and the circumstances of the crime.[33] Using the resulting scores, trial courts must then determine the appropriate range for a defendant's minimum sentence using the appropriate sentencing grid.[34] Crucially, when scoring the variables, trial courts are permitted to make factual findings which need only be supported by a preponderance of the evidence.[35] Until recently, under the guidelines as enacted by our Legislature, trial courts were required to impose a minimum sentence falling within the calculated range, unless the trial court was able to articulate a substantial and compelling reason warranting a departure from that range.[36]

          In People v Lockridge, our Supreme Court held that Michigan's sentencing scheme violated the Sixth Amendment right to a jury trial because it required " judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase[d] the floor of [312 Mich.App. 194] the guidelines minimum sentence range, i.e., the 'mandatory minimum' sentence under Alleyne." [37] Precisely such a violation occurred in this case. Although the jury acquitted Stokes of both firearms charges brought against him, the trial court scored OVs 1 and 2 as if Stokes possessed a pistol and pointed it at Jones.[38] If no points are assigned to these variables, Stokes's OV level drops from Level III to Level II, and his minimum sentence range under the guidelines as a second-offense habitual offender would be reduced from a range of 126 to 262 months to a range of 108 to 225

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months.[39] Thus, it cannot be disputed that the trial court relied on facts not admitted by Stokes or found by the jury in order to calculate his sentencing guidelines range, and that these judicially found facts resulted in an increased minimum sentencing range. As such, under Lockridge, Stokes's Sixth Amendment rights were violated at sentencing.

         In Lockridge, our Supreme Court contemplated several possible methods to remedy this constitutional defect. One potential remedy considered by the Court was " to require juries to find the facts used to score all the OVs that are not admitted or stipulated by the defendant or necessarily found by the jury's verdict." [40] Stokes requests such a remedy here: he asks this Court to remand for resentencing, but with no points assigned [312 Mich.App. 195] to OVs 1 and 2, such that his minimum sentence would fall between 108 and 225 months. He asks that the trial court be required to sentence him within this reduced range, absent a substantial and compelling reason warranting a departure. However, our Supreme Court " reject[ed] this option" because requiring all facts utilized in the sentencing guidelines to either be found by a jury or admitted by the defendant " could essentially turn sentencing proceedings into mini-trials," and " [t]he constitutional violation c[ould] be effectively remedied without burdening our judicial system in this manner . . . ." [41] Thus, we cannot grant Stokes the remedy he seeks.

         Rather, because the rule of Alleyne only applies to judicial fact-finding that mandatorily increases a minimum sentence,[42] our Supreme Court concluded that the appropriate remedy was to render Michigan's sentencing guidelines merely advisory.[43] The Court did so through a " judicial rewriting of the statute, . . . substitut[ing] the word 'may' for 'shall' in MCL 769.34(2) and remov[ing] the requirement in MCL 769.34(3) that a trial court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure." [44] Thus, in effect, MCL 769.34(2) now reads:

(2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum [312 Mich.App. 196] sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 [may] be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.[45]

          In effect, MCL 769.34(3) now reads, " A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII . . . ." [46]

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          Our Supreme Court was careful to state that the sentencing guidelines must still be scored, and that trial courts must assess the " highest number of points possible" to each variable, " whether using judge-found facts or not." [47] Trial courts must " continue to consult the applicable guidelines range and take it into account when imposing a sentence." [48] Thus, under Lockridge, while the sentencing guidelines must still be scored by the trial court, the resulting range is merely an advisory range that must be taken into account by the trial court when imposing a sentence.[49] " When a defendant's sentence is calculated using a guidelines minimum sentence range in which OVs have been scored on the basis of facts not admitted by the defendant or found beyond a reasonable doubt by the jury, the sentencing court may exercise its discretion to depart from that guidelines range without articulating substantial and compelling reasons for doing so." [50] As explained by our Supreme Court, " [b]ecause sentencing [312 Mich.App. 197] courts will hereafter not be bound by the applicable sentencing guidelines range, this remedy cures the Sixth Amendment flaw in our guidelines scheme by removing the unconstitutional constraint on the court's discretion." [51]

         In Lockridge, our Supreme Court instructed courts regarding how to proceed " in the many cases that have been held in abeyance for this one." [52] Noting that " virtually all" of these cases involve unpreserved challenges, our Supreme Court described a procedure, the goal of which is to determine whether a Lockridge error resulted in prejudice to any given defendant. [53] Such an inquiry is necessary because unpreserved constitutional errors are subject to plain-error review, which requires a defendant to demonstrate not only that an error occurred, but " that the error affected the outcome of the lower court proceedings." [54] Our Supreme Court held that if a defendant is able to " establish a threshold showing of the potential for plain error," the case must " be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. If the trial court determines that the answer to that question is yes, the court shall order resentencing." [55] The precise [312 Mich.App. 198] procedure to be followed, modeled on that adopted in United States v Crosby,[56] is as follows:

[O]n a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she

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will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by [MCR 6.425], if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the ...

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