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 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).
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.
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
[Defense Counsel]: Has anyone promised you or
threatened you to get you to make this decision?
The Defendant: Besides Derrick Johnson, no.
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.
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).
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. ...