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People v. Sinnett

Supreme Court of Michigan

January 10, 2020

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
NICHOLAS COLE SINNETT, Defendant-Appellant.

          Oakland CC: 2016-259413-FC

          Bridget M. McCormack, Chief Justice David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices

          ORDER

         On order of the Court, the application for leave to appeal the May 9, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

          Cavanagh, J. (concurring).

         I concur in the Court's order denying leave to appeal in this case but write separately to identify a serious trial court error, which would warrant reversal of defendant's conviction were it not rendered harmless by the overwhelming evidence of defendant's guilt.

         Defendant was tried before a jury for armed robbery, possession of a firearm during the commission of a felony, and unlawfully driving away a motor vehicle. After the prosecution rested, defense counsel informed the trial court that defendant had intended to testify but had been threatened in the jail by an individual who would likely be called as a rebuttal witness. According to defendant, a man named Derrick Johnson threatened him "don't be a rat" because defendant planned to implicate an associate of Johnson's. Defense counsel asked for time to confer with defendant about whether he still intended to testify. Following a brief off-the-record discussion, defense counsel made a record:

[Defense Counsel]: Okay. And as we stand here today and you are here to make your final decision, do you wish to testify or do you wish to remain silent?
The Defendant: It would be better for me to stay silent.
[Defense Counsel]: Has anyone promised you or threatened you to get you to make this decision?
The Defendant: Besides Derrick Johnson, no.

         After that, the trial court also questioned defendant about the alleged threat. Defendant elected not to testify and was ultimately found guilty as charged. Defendant's convictions were affirmed on appeal; the Court of Appeals concluded that defendant waived his right to testify and there was no plain error affecting his substantial rights.

         A defendant's right to testify is grounded in the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. People v Bonilla-Machado, 489 Mich. 412, 419 (2011). The right to testify is "essential to due process of law in a fair adversary process." Rock v Arkansas, 483 U.S. 44, 51 (1987) (quotation marks and citation omitted). In fact, a defendant's right to present his own version of events is fundamental, and sometimes "the most important witness for the defense" is the defendant himself. Id. at 52. A defense attorney may counsel a defendant against testifying as a matter of sound trial strategy; however, the ultimate decision to testify rests solely with the defendant. Bonilla-Machado, 489 Mich. at 419. In Michigan, the trial court is not required to determine whether a defendant waives the right to testify, and if the defendant "decides not to testify . . . the right will be deemed waived." People v Simmons, 140 Mich.App. 681, 685 (1985) (quotation marks and citation omitted).

         In the Court of Appeals, defendant argued that that trial court failed to take sufficient steps to protect his constitutional right to testify. I agree. The record shows that defendant repeatedly informed the trial court that he believed he had been threatened not to testify, but the trial court did nothing about it:

The Court: All right. Mr. Sinnett, this is your decision as to whether you want to testify or not. You've talked to your attorney at length prior to this case starting, during this week, additionally this morning. ...

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