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People v. Randolph

Supreme Court of Michigan

June 15, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANDREW MAURICE RANDOLPH, Defendant-Appellant.

          Argued on application for leave to appeal November 7, 2017.

          Chief Justice: Stephen J. Markman Justices, Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder.

         Syllabus

         Andrew M. Randolph was convicted after a jury trial in the Genesee Circuit Court, Geoffrey L. Neithercut, J., of second-degree murder, MCL 750.317; discharging a firearm into a building, MCL 750.234b; being a felon in possession of a firearm, MCL 750.224f; and possessing a firearm during the commission of a felony, MCL 750.227b, in connection with the fatal shooting of Vena Fant, his girlfriend's mother. The night before the shooting, defendant had fought with his girlfriend and packed his belongings into bags before departing. Fant then brought these bags to the home of defendant's father, Alphonso Taylor. After the shooting, without a search warrant, the police obtained Taylor's consent to search the bags, which contained several rounds of ammunition. An arrest warrant was later issued and executed on defendant at his brother's apartment, where a search revealed a handgun linked to the killing. At trial, the prosecution's case relied in part on testimony about threats defendant had made to the victim's family on the day of the shooting and evidence of the ammunition and gun found during the investigation. Regarding the threats, Linda Wilkerson, the sister of Fant's fiancé, testified that Fant said that defendant had been calling throughout the day and threatening to kill the family. Defense counsel did not object to this testimony, nor did he object to the admission of the ammunition and gun as evidence. Defendant appealed his convictions, arguing that his counsel had been ineffective, and the Court of Appeals remanded the case to the trial court for a hearing pursuant to People v Ginther, 390 Mich. 436 (1973). At the hearing, defendant's father, Taylor, testified that he had not touched defendant's bags or received defendant's permission to open them and that when the police searched the bags, they never asked whether Taylor had permission to go through them. Trial counsel admitted that he had no strategic reason for failing to file a motion to suppress the ammunition found at Taylor's house. After the hearing, the trial court rejected defendant's ineffective-assistance claim, ruling that counsel's performance was not deficient and that, in any case, defendant was not prejudiced. Defendant appealed on this basis and also on the basis of the unpreserved alleged errors by the trial court relating to the admission of evidence. The Court of Appeals, SAWYER, P.J., and K. F. KELLY and FORT HOOD, JJ., affirmed in an unpublished per curiam opinion issued November 24, 2015 (Docket No. 321551), holding in part that defendant could not establish his ineffective-assistance claim because he had not established that plain error had occurred. The Supreme Court ordered and heard oral argument on whether to grant

         In a unanimous opinion by Justice Viviano, the Supreme Court, in lieu of granting leave to appeal, held:

A defendant's inability to establish that the trial court committed a plain error does not necessarily preclude the defendant from establishing the ineffective assistance of counsel on the basis of that same error. The standards for establishing plain error by the trial court and ineffective assistance of trial counsel have separate legal elements that focus on different facts. Accordingly, courts must independently analyze each claim, even if the subject of a defendant's ineffective-assistance claim relates to the same error. Because the Court of Appeals failed to apply the standards set forth in Strickland v Washington, 466 U.S. 668 (1984), to defendant's ineffective-assistance claims, the Court of Appeals' holdings as to those claims were reversed and the case was remanded to the Court of Appeals to review those claims under the Strickland framework in light of the trial record and the record produced at the Ginther hearing.

         1. Under Strickland, establishing ineffective assistance requires a defendant to show that trial counsel's performance was objectively deficient and that the deficiencies prejudiced the defendant. Prejudice means a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The plain-error standard set forth in People v Carines, 460 Mich. 750 (1999), which governs unpreserved errors at trial, has four elements: (1) error must have occurred, (2) the error was plain, i.e., clear or obvious, (3) the plain error affected substantial rights, and (4) the plain, forfeited error resulted in the conviction of an actually innocent defendant or an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. A "clear or obvious" error under the second prong is one that is not subject to reasonable dispute. The third element generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Under Carines, it is the trial court's unobjected-to error that is the subject of plain-error review, whereas the ultimate determination of an ineffective-assistance claim under Strickland is whether the defendant has suffered a genuine deprivation of the right to effective assistance of counsel. Accordingly, plain-error claims and ineffective-assistance claims have their own elements and require different analyses. Furthermore, an appellate court need not look beyond the trial court record when reviewing a trial court's mistake for plain error, whereas the errors underlying ineffective-assistance claims often are not apparent from the trial record and require additional evidentiary development. Accordingly, courts should address ineffective-assistance claims based on the pertinent inquiry-the effect of counsel's deficient performance- considering the pertinent facts, which may include facts developed at an evidentiary hearing.

         2. The Court of Appeals impermissibly conflated the plain-error and ineffective-assistance standards when analyzing the admission of the ammunition and murder weapon. Defendant argued on appeal that this evidence was the fruit of an unlawful search under the Fourth Amendment because his father lacked actual or apparent authority to consent to the police officers' request to search his belongings. The Court of Appeals held that defendant did not meet his burden of establishing a plain error affecting his substantial rights regarding the impropriety of the search and introduction of the allegedly illegal fruits of that search. The panel's analysis suggested that any error was not readily apparent from the record and therefore not obvious under Carines. But defendant also challenged his counsel's effectiveness relating to the introduction of this evidence, specifically alleging that his counsel's failure to move to suppress the evidence constituted deficient performance and that it prejudiced him. The panel did not evaluate counsel's performance or the prejudice that resulted from it at all, instead relying on its plain-error analysis to conclude that the related ineffective-assistance claims must also fail. However, whether an error was obvious to the trial court is not an element of an ineffective-assistance claim. Given the centrality of the gun and ammunition to the prosecution's case, any ineffective assistance resulting in their admission might have prejudiced defendant. The proper analysis would have applied Strickland's two prongs and asked whether counsel's failure to object to the evidence constituted prejudicial deficient performance.

         3. The Court of Appeals also erred by conflating the plain-error and ineffective-assistance standards when analyzing the admission of Fant's statements through the testimony of her fiancé's sister, Linda Wilkerson. Wilkerson testified that Fant said that defendant had been threatening Fant's family. Defendant contended on appeal that those hearsay statements were inadmissible and that the trial court erroneously admitted them as excited utterances. In its plain-error analysis of this issue, the Court of Appeals rejected defendant's argument because any error in admitting the testimony was not clear or obvious given defendant's failure to object. However, the fact that any error was not obvious did not justify rejecting defendant's ineffective-assistance claim; rather, the relevant questions for the Court were whether counsel's failure to object was deficient performance and whether it prejudiced defendant. The Court of Appeals alternatively concluded that any plain error in admitting Wilkerson's statements did not affect defendant's substantial rights, given that the statements were evidence of premeditation but the jury acquitted defendant of first-degree murder. This conclusion could have been reached only by properly applying the Strickland test, which requires considerations of defense counsel's actions and their effect in light of all of the evidence relating to that claim, including that developed at any evidentiary hearing, and that proper application was not evident in the Court's opinion.

         Court of Appeals judgment reversed in part; case remanded to the Court of Appeals for further proceedings.

         BEFORE THE ENTIRE BENCH (except Clement, J.)

          OPINION

          Viviano, J.

         This case requires us to consider whether a defendant's failure to satisfy the plain-error test in connection with a legal mistake by the trial court necessarily precludes the defendant from establishing the ineffective assistance of his trial counsel relating to that same mistake. Because these standards of review have separate legal elements that focus on different facts, we hold that a failure to satisfy the plain-error test will not, without more, foreclose a defendant's claim of ineffective assistance of trial counsel. This is true even when the subject of each claim is the same. Therefore, even when a defendant cannot succeed on a claim being reviewed for plain error, courts may not simply conclude, without independent consideration, that a defendant is unable to succeed on an ineffective-assistance claim relating to the same underlying issue.

         In the instant case, the Court of Appeals conflated the two standards of review, and therefore failed to properly analyze defendant's ineffective-assistance claims. Therefore, we reverse the Court of Appeals' holdings regarding those claims and remand the case to that Court for reconsideration of those claims in light of the analysis below.

         I. FACTS AND PROCEDURAL HISTORY

         Defendant lived with his girlfriend, Kanisha Fant. They quarreled throughout the night of December 9, 2012, with defendant making various threats against Fant's family. At some point, he packed his belongings into bags but left them behind when he departed. Kanisha's mother, Vena Fant, brought the bags to the home of defendant's father, Alphonso Taylor.

         The next day, gunshots struck Vena's home. One bullet pierced Vena's neck, killing her. After the police arrived, defendant showed up at the scene and was taken into custody. The police lacked sufficient evidence to charge defendant, however, and he was released. The same day, without a search warrant, the police obtained Taylor's consent to search the bags containing defendant's belongings. They found several rounds of .357 ammunition. The Bureau of Alcohol, Tobacco, Firearms, and Explosives was alerted, and it obtained an arrest warrant for defendant's violation of federal law prohibiting a felon (which he was) from possessing ammunition.

         In February 2013, an arrest warrant was issued and executed on defendant at his brother's apartment, where defendant had been staying. Because his brother was on parole, the police searched the apartment based on his brother's parolee status.[1] During the search, they found a handgun linked to the homicide.

         Defendant was charged with first-degree premeditated murder and felony-firearm, among other things. The prosecution's case relied, in part, on testimony about threats defendant had made to the victim's family on December 10 and evidence of the ammunition and gun found during the investigation. Regarding the threats, Linda Wilkerson, the sister of Vena's fiancé, testified that Vena said that defendant, throughout the day, had been calling and threatening to kill the family. Vena told Wilkerson that everyone needed to be alert. Defense counsel did not object to this testimony, nor did he object to the admission of the ammunition and gun.

         Defendant was convicted of the lesser offense of second-degree murder, MCL 750.317, discharging a firearm into a building, MCL 750.234b, being a felon in possession of a firearm, MCL 750.224f, and possessing a firearm during the commission of a felony, MCL 750.227b. On appeal, defendant argued, among other issues, that his trial counsel was constitutionally ineffective, and the Court of Appeals remanded to the trial court for a Ginther[2] hearing.[3] Defendant's father, Taylor, testified at the hearing that defendant was not living at his house when Vena brought defendant's belongings there, and, in fact, had never lived there. Taylor was told to give the bags to defendant, and he testified that he never touched the bags or received defendant's permission to open them. When the police searched the items, they never asked if Taylor had permission to go through them. Trial counsel admitted at the hearing that there was no strategic reason for failing to file a motion to suppress the ammunition found at Taylor's house. He simply thought defendant lacked standing to make such a claim.

         The trial court rejected defendant's claim of ineffective assistance of trial counsel, finding that counsel's performance was not deficient and that, in any case, defendant was not prejudiced. Defendant appealed. He also raised a host of unpreserved errors, asking that they be reviewed for plain error. For the reasons discussed below, the Court of Appeals affirmed defendant's conviction, finding neither his claims of trial court error nor his claim of ineffective assistance persuasive.[4] Defendant sought leave to appeal in this Court, and we ordered briefing on "whether a defendant's failure to demonstrate plain error precludes a finding of ineffective assistance of trial counsel; and, in particular, . . . whether the prejudice standard under the third prong of plain error . . . is the same as the Strickland [v Washington] prejudice standard . . . ."[5]

         II. STANDARD OF REVIEW

         Questions of law, such as the applicability of legal doctrines to a given set of facts, are reviewed de novo.[6]

         III. ANALYSIS

         The issue in this case involves the relationship between the standards for reviewing unpreserved claims that the trial court erred (which are reviewed for plain error) and related claims that trial counsel was constitutionally ineffective. Does a defendant's failure to demonstrate the former preclude him or her from being able to demonstrate the latter? This question arises because it is not uncommon for a defendant to challenge the same underlying error through both frameworks.[7] Here, for example, defendant claims that the trial court's admission of the murder weapon and ammunition was plain error, while also claiming that his trial counsel's failure to object to the admission of that evidence constitutes ineffective assistance. Thus his basic challenge to the admission of the evidence is made in two separate claims for relief. He approaches the admission of Vena's statements similarly, contending on the one hand that the trial court plainly erred by admitting them, and on the other hand that his attorney was constitutionally deficient for allowing that error to happen. Does defendant's inability to satisfy the plain-error test preclude him from satisfying the Sixth Amendment test when he is complaining about the same underlying mistake?

         Our analysis begins with a simple examination of the elements of each standard of review. Under Strickland v Washington, establishing ineffective assistance requires a defendant to show (1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.[8] Prejudice means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."[9]

         Our plain-error standard, governing unpreserved errors at trial, derives from federal law.[10] As we noted in People v Carines, the test has four elements:

1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the plain error affected substantial rights . . . [, and 4)] once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence.[11]

         A "clear or obvious" error under the second prong is one that is not "subject to reasonable dispute."[12] The third Carines element "generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings."[13]

         As an initial matter, the specific error that is the focus of each standard is different. It is the trial court's unobjected-to error that is the subject of plain-error review.[14] By contrast, the "ultimate determination" of an ineffective-assistance claim "is not the propriety of the trial court's actions with regard to an alleged error, but whether defendant has suffered a genuine deprivation of his right to effective assistance of counsel . . . ."[15] There will no doubt be occasions when both standards are relevant; trial counsel's deficient performance will often result in a trial court error, but the claims associated with each type of error have their own elements and require different analyses. In evaluating a trial court's error the appellate court is making one determination, and in evaluating trial counsel's deficient performance, the determination is different.[16]

         The tests for each determination reflect their differences. The first two prongs of the plain-error standard require that an error exist and that it be obvious.[17] Neither of these alone satisfies either Strickland prong. A trial court's error does not tell us (1) whether counsel performed deficiently with respect to that trial court error or (2), if counsel's performance was deficient, whether it prejudiced the defendant.[18] The obviousness of the error, the second plain-error test element, is no different. While in some instances an obvious error ...


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