CRIMINAL PROCEDURE CHRISTINE A. PAGAC I. INTRODUCTION ................................................................................... 657 II. FOURTH AMENDMENT ...................................................................... 658 A.

Probable Cause to Arrest ........................................................... 658 1. People v. Cohen ................................................................... 659 2. People v. Glenn-Powers ....................................................... 660 B. Search Incident to Arrest............................................................ 661 1. People v. Tavernier .............................................................. 661 III. SIXTH AMENDMENT ........................................................................ 662 A. Right to Confrontation ............................................................... 662 1. People v. Fackelman ............................................................ 663 2. People v. Buie ..................................................................... 666 B. Right to Self-Representation....................................................... 667 1. People v. Brooks .................................................................. 667 C. Effective Assistance of Counsel.................................................. 669 1. People v. Armstrong............................................................. 669 D. Due Process .............................................................................. 671 1. People v. Cole ...................................................................... 671 IV. PROCEDURAL RULES: GRANT OF A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE ........................................................... 672 A. People v. Rao ............................................................................. 672 I. INTRODUCTION The Survey period saw two opinions by the Michigan Supreme Court granting new trials to criminal defendants, which is unusual in recent years. In both instances, the court expressed concerns about the defendants innocence, either as a matter of law or a matter of fact. In the first case, People v. Fackelman,1 the court granted a new trial holding that his rights under the Confrontation Clause had been violated.2 Noting the particular circumstances of the case, and the fact that the evidence went to his legal sanity in the face of understandable grief, the court stated: [I]t is imperative that defendant have the opportunity to be
Assistant Defender, Michigan State Appellate Defender Office, Adjunct Faculty, University of Michigan Law School. B.A. with high distinction, 1988, University of Michigan; J.D., cum laude, 1991, University of Michigan. 1. 489 Mich. 515; 802 N.W.2d 552 (2011), cert. denied, 132 S. Ct. 759 (2011). 2. Id. at 564.

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confronted with the most powerful witness against him before his guilt or innocence is decided.3 In the second opinion, People v. Armstrong,4 a unanimous court granted a new trial because the defendant had been denied effective assistance of counsel.5 In a rape case with no physical evidence, the trial counsel failed to introduce cell phone records which would have cast serious doubt on the substance of her accusations and quite possibly would have convinced the jury to discredit the complainants accusations.6 Questions about actual innocence, however, were not guaranteed to bring the defendant success, as demonstrated by People v. Rao.7 The court denied a new trial because the claimed newly discovered evidence of innocence was not, in fact, newly discovered.8 Beyond fundamental questions of guilt or innocence, the recent landmark decision of the U.S. Supreme Court in Crawford v. Washington9 has led to a resurgence of cases raising Confrontation Clause issues, as seen by the two Michigan Supreme Court opinions on that subject during this Survey period. Another recent U.S. Supreme Court case, Padilla v. Kentucky,10 requiring that criminal defendants be advised of the immigration consequences of their pleas,11 also played a role in the Michigan Supreme Courts decision in People v. Cole,12 regarding procedures in the taking of pleas. As has been the case in recent years, prosecutor appeals continue to be successful in the Michigan appellate courts. II. FOURTH AMENDMENT A. Probable Cause to Arrest The court of appeals issued two decisions during the Survey period analyzing the circumstances under which an arrest violates the Fourth Amendments prohibition of unreasonable searches and seizures. In both instances, the court held that the arrest was constitutional.

3. Id. at 542. 4. 490 Mich. 281; 806 N.W.2d 676 (2011). Armstrong was represented on appeal by another attorney in the State Appellate Defender Office. 5. Id. at 294. 6. Id. at 292. 7. 491 Mich. 271; 815 N.W.2d 105 (2012). 8. Id. at 292. 9. 541 U.S. 36 (2004). 10. 130 S.Ct. 1473 (2010). 11. Id. at 1486. 12. 491 Mich. 325; 817 N.W.2d 497 (2012).

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The first of the decisions, People v. Cohen,13 has broader implications than the other decision in the Survey period as it arose from a warrantless felony arrest after a traffic stop. The police arrested both the driver and the passenger for joint constructive possession of drugs and paraphernalia that the officers found in plain view in the center console.14 In the jail cell, an officer caught Cohen attempting to dispose of a baggie with a rock of suspected cocaine in it.15 The prosecutor charged Cohen with two crimes, one for the drugs found in the car and a second charge for the cocaine discovered after he was jailed.16 The district court dismissed the charge against Cohen based on the drugs found in the car because the prosecution had not shown the drugs belonged to Cohen, the passenger, rather than the owner of the car.17 In the circuit court, defense counsel argued that the dismissal of this charge meant that the police did not have probable cause to arrest Cohen.18 The Fourth Amendment prohibits warrantless arrests that are not supported by probable cause,19 and requires suppression of any evidence obtained as a result.20 Accordingly, counsel argued that the drugs found in the jail cell were the fruit of an illegal arrest and had to be suppressed.21 Without the drugs, there was no evidence to support the remaining charge against Cohen, so that had to be dismissed as well.22 The circuit court agreed and the prosecution appealed.23 No brief was filed on behalf of the defendant. The court of appeals reversed, holding that probable cause to arrest is different from probable cause to bindover.24 Probable cause to arrest is viewed from the perspective of the arresting officer, and asks whether a prudent man would believe that the suspect has committed or is committing a crime.25 The Cohen court did not offer a succinct statement of the probable cause standard applied at the preliminary examination,
13. 294 Mich. App. 70; 816 N.W.2d 474 (2011). 14. Id. at 72. 15. Id. at 73. 16. Id. 17. Id. 18. Id. at 74. 19. United States v. Watson, 423 U.S. 411, 427 (1976). 20. Mapp v. Ohio, 367 U.S. 643 (1961) ([A]ll evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court.). 21. Cohen, 294 Mich. App. at 73. 22. Id. 23. Id. 24. Id. at 77. 25. Id. at 75 (quoting People v. Champion, 452 Mich. 92; 549 N.W.2d 849 (1996) and Maryland v. Pringle, 540 U.S. 366, 370 (2003)).

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but rather indicated that it is somehow higher and different because it also takes into account legal standards and the rules of evidence.26 The opinions abbreviated discussion of the subject does not analyze Michigan statutes governing preliminary examinations, or any Michigan case law on the subject. Instead, it provides (1) a heavily edited block quote from a twenty year old version of a hornbook that omits discussion of the different standards applied by different courts27 and (2) an even older federal case based on Illinois statutes and case law.28 This flaw in the analysis may open the Cohen opinion to question in the future.29 2. People v. Glenn-Powers The second decision, People v. Glenn-Powers,30 involved an arrest for a probation violation. The defendant challenged the legality of the arrest based solely on the fact that the warrant was not sworn under oath as required by the Fourth Amendment, and the lower court agreed.31 The court of appeals resoundingly rejected this argument, holding that the arrest was legal for several reasons.32 The court held the arrest constitutional because a Michigan statute authorizes warrantless arrests of probation violators and of people who commit misdemeanors, such as the defendant.33 The fact that the officer arrested the defendant based on a defective warrant is of no consequence, as probable cause is not determined by looking at the officers subjective state of mind.34 Thus, the officers erroneous belief that a warrant was necessary, as well as any erroneous belief that the warrant was valid, is

26. Id. at 75-76. 27. Cohen, 294 Mich. App. at 75-76 (quoting WAYNE R. LAFAVE & JEROLD H. ISREAL, CRIMINAL PROCEDURE 14.3 (2d ed. 1992)). As of the date of the Cohen opinion, the hornbook was in its 5th edition, published in 2009. 28. Id. at 76 (quoting Williams v. Kobel, 789 F.2d 463, 468 (7th Cir. 1986)). 29. How Michigans statutory scheme compares to that of Illinois, or other states that equate the probable cause determination for arrest and bindover, is beyond the limited scope of this survey. 30. 296 Mich. App. 494; 823 N.W.2d 127 (2012). 31. Id. at 496. 32. Id. at 497-504. 33. Id. at 498. Of course, the fact that a state statute authorizes a procedure does not make it constitutional. See, e.g., Payton v. New York, 445 U.S. 573 (1980) (striking down as unconstitutional state statutes authorizing warrantless entries into homes to make felony arrests). Similarly, as the court of appeals recognized later in this same decision, the fact that a court rule requires a particular procedure does not expand the protections of the Fourth Amendment. Glenn-Powers, 296 Mich. App. at 504. 34. Glenn-Powers, 296 Mich. App. at 499-500 (quoting Devenpeck v. Alford, 543 U.S. 146 (2004)).

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immaterial to the question whether the arrest was valid under the Fourth Amendment.35 Finally, the court held that the probable cause and oath or affirmation requirements of the Fourth Amendment do not apply to probation-violation warrants . . . .36 In so holding, the court extended the application of its 1985 decision in Triplett v. Deputy Warden,37 which reached an identical conclusion for parolees. A probation order is a matter of grace, and can be revoked or amended.38 The United States Supreme Court has recognized that probationers have diminished privacy interests in both their persons and their homes.39 The court reasoned that if warrants are not required to search a probationers home, then one is not needed to arrest them either.40 B. Search Incident to Arrest 1. People v. Tavernier In 2009, in Arizona v. Gant, the United States Supreme Court narrowed the permissible scope of warrantless searches of automobiles incident to the arrest of a passenger in that vehicle.41 No longer could the police search the entire passenger compartment, including any containers in that compartment, as they had been allowed to do under previous authority.42 Rather, a vehicle could be searched incident to the arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.43 In People v. Tavernier,44 the court of appeals considered the legality of the search of an automobile following the defendants arrest for driving under the influence of drugs, a search the defendant had challenged under Gant. The defendant was in the back of the police car at the time of the search, meaning that the search would be constitutional
35. Id. at 500-01. 36. Id. at 501. 37. 142 Mich. App. 774; 371 N.W.2d 862 (1985). 38. Glenn-Powers, 296 Mich. App. at 502. 39. Id. at 502-03 (quoting United States v. Knights, 534 U.S. 112 (2001) and Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)). 40. Id.at 504. 41. Arizona v. Gant, 556 U.S. 332 (2009). 42. See New York v. Belton, 453 U.S. 454, (1981). 43. Gant, 556 U.S. at 351. 44. 295 Mich. App. 582; 815 N.W.2d 154, appeal dismissed, 492 Mich. 855; 817 N.W. 2d 70 (2012).

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only if it was reasonable for the officer to believe the vehicle contained evidence of driving under the influence of drugs.45 The officer testified that he searched the vehicle looking for a narcotic or the pain medication the defendants brother said he was taking.46 The court of appeals held that the search was constitutional.47 The court noted that in Gant, the Supreme Court said that arrests for unlawful possession of drugs would support a search of the passenger part of the arrestees car and any containers therein.48 Similarly, looking at the totality of the circumstances (including the officers training and experience), the officer reasonably believed that the car might contain evidence of driving under the influence of drugs.49 Accordingly, the search did not violate the Fourth Amendment and the motion to suppress was properly denied.50 III. SIXTH AMENDMENT A. Right to Confrontation The Confrontation Clause has been a fertile ground for opinions in the U.S. Supreme Court and lower courts since 2004, when the Court issued its watershed opinion in Crawford v. Washington.51 The Survey period saw two opinions on the issue by the Michigan Supreme Court.52 In both cases, defense counsel failed to object to the testimony in question, but this failure led to opposite results. In the first case, People v. Fackelman,53the court held the error to be obvious and so reversible despite defense counsels failure to object. In the second, People v. Buie,54 the court found that the issue was waived because the defendant failed to object personally, leaving open the question of whether the use of interactive video technology violates the Confrontation Clause.

45. Id. at 586. 46. Id. at 586-587. 47. Id. at 587. 48. Id. at 586 (citing Gant, 556 U.S. at 344). 49. Id. at 587. 50. Tavernier, 295 Mich. App. at 587. 51. 541 U.S. 36 (2004). 52. People v. Fackelman, 489 Mich. 515; 802 N.W. 2d 552 (2011); People v. Buie, 491 Mich. 294; 817 N.W.2d 33 (2012). 53. 489 Mich. 515; 802 N.W.2d 552 (2011), cert. denied, 132 S.Ct. 759 (2011). 54. 491 Mich. 294, 563; 817 N.W.2d 33 (2012). The State Appellate Defender Office represented Mr. Buie on appeal.

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1. People v. Fackelman Late in its 2010-2011 term, the Michigan Supreme Court issued its opinion in People v. Fackelman.55 In Fackelman, the court held that the admission of the diagnosis of a non-testifying psychiatrist violated Fackelmans rights under the Confrontation Clause in both the federal and state constitutions56 and reversed.57 In addition to the constitutional protections, MCLA 763.1 expressly provides that criminal defendants have the right to meet the witnesses who are produced against him face to face.58 The charges against Fackelman arose from an incident in which he threatened Krell at gunpoint.59 Fackelmans teenaged son had been killed in a car accident precipitated by a road rage encounter between Krell and the driver of the car in which Fackelmans son was a passenger.60 Krell was convicted of a misdemeanor after trial, and never apologized.61 Fackelman believed Krell behaved in an insulting and antagonistic manner towards his family.62 About nine months after the accident, Fackelman went to Krells house, chased him, and threatened him at gunpoint.63 Krell and Fackelman both ran away and Fackelman was eventually found, arrested, and admitted to the psychiatric unit of a local hospital.64 Fackelman defended himself against the charges by raising the affirmative defense of insanity.65 Both sides presented experts who opined about Fackelmans sanity at the time of the offense.66 The issue in Fackelman arose because the jury heard testimony about the contents of the report prepared by the psychiatrist who examined Fackelman at the hospital two days after the incident, but never heard any testimony directly from the psychiatrist.67 The report, on which the prosecutor relied heavily during examination of the testifying experts, included a
55. 489 Mich. 515; 802 N.W.2d 552 (2011). 56. U.S. CONST. amend. VI; MICH. CONST. art. 1, 20. 57. Fackelman, 489 Mich. at 564. The court also held that there were numerous violations of the Michigan Rules of Evidence in the handling of the experts report, issues that are beyond the scope of this Survey article. Id. at 534-42. 58. MICH. COMP. LAWS ANN. 763.1 (West 2006). 59. Fackelman, 489 Mich. at 520. 60. Id. at 519. 61. Id. 62. Id. 63. Id. at 520. 64. Id. 65. Fackelman, 489 Mich. at 521. 66. Id. 67. Id. at 521-24.

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conclusion that Fackelman had not been suffering from psychosis during the assault.68 Defense counsel did not object and was unaware that any Confrontation Clause violation was occurring.69 The court held that the non-testifying psychiatrist was a witness against Fackelman for confrontation clause purposes.70 The key issue at trial was Fackelmans sanity, referred to at trial as psychosis.71 The testifying experts reached opposite conclusions on that question.72 The court concluded that the prosecutors use of the non-testifying psychiatrists diagnosis fully rendered the doctor a witness against defendant.73 Moreover, by using the diagnosis during cross-examination and closing arguments, the prosecutor was using it as substantive evidence in violation of the Confrontation Clause.74 The majority held that even though the report was not prepared explicitly for trial, it was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.75 The court based its conclusion on the fact that the doctor referred to the pending criminal charges multiple times, that Fackelman was arrested on the way to the hospital, his admittance was arranged by lawyers, Fackelman referred to a trial, and the sheriff wanted to be notified before Fackelmans discharge.76 Therefore, the doctor should have reasonably believed that his report would be available for use at Fackelmans trial, making it testimonial within the meaning of the Confrontation Clause.77 The dissent asserted that this conclusion was not in accord with Melendez-Diaz v. Massachusetts,78 one of the U.S. Supreme Courts post-Crawford Confrontation Clause opinions.79 According to the majority, the dissent misinterpreted Melendez-Diaz, which did not expressly state that reports created for treatment purposes were not testimonial.80

68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

Id. at 522-23. Id. at 543. Id.. at 529. Fackelman, 489 Mich. at 529. Id. at 530. Id. Id. at 530-31. Id. at 532 (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)). Id. at 532. Fackelman, 489 Mich. at 533. 557 U.S. 305 (2009). Fackelman, 489 Mich. at 565-66. Id. at 550.

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Because of the Confrontation Clause violation, the court granted a new trial.81 Finding the error to be clear and obvious, it was also prejudicial.82 The opinion of the non-testifying expert was tiebreaking, neutral, and he was the only person to have examined Fackelman shortly after the assault.83 As the majority stated, In this way, the trials of defendant and Sir Walter Raleigh, though separated by centuries and factually unrecognizable, were fundamentally deficient in the same way: at the public trial at which their guilt or innocence was determined, neither man was confronted face to face with the most important witness against him.84 Both the majority and the dissent set forth a two part test for deciding when the Confrontation Clause has been violated.85 The majority turned to the Confrontation Clause itself for its test, and asks two questions: (1) is the person a witness against the accused and (2) was the accused allowed to confront that witness?86 The dissents test is one it derived from Crawford and its progeny: the formality of the statement within a criminal investigation or prosecution and the purpose of the statement.87 The majority declined to adopt this test, calling it a not-unreasonable . . . attempt to accord meaning to some very tortuous [Confrontation Clause] jurisprudence.88 In contrast, the majority asserted that its inquiry into the foreseeability of the use of the statement was expressly offered by Crawford and reiterated by subsequent cases as one of three formulations of the core class of testimonial statements.89 In a precursor to the waiver finding in Buie, the dissent would have found that Fackelman waived his confrontation right as a matter of trial strategy;90 a conclusion the majority characterized as indefensible.91 The majority explained that the dissents conclusion was contrary to traditional understandings of waiver and basic principles of criminal

81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91.

Id. at 564. Id. at 537-38. Id. at 538. Id. at 541. Fackelman, 489 Mich. at 562. Id. at 562. Id. at 577-78 (Young, J., dissenting). Id. at 555. Id. at 556. Id. at 565 (Young, J., dissenting). Fackelman, 489 Mich. at 543 (majority opinion).

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law.92 According to the majority, if the dissents approach were adopted, criminal defendants would be required to choose between affirmative defenses and the Confrontation Clause, the burden of calling adverse witnesses would impermissibly shift to the defense, and rules of evidence would trump the Constitution.93 2. People v. Buie In People v. Buie,94 the Michigan Supreme Court granted leave to consider whether the use of two-way interactive video instead of live testimony for a witness violated Buies constitutional rights or the Michigan Court Rules.95 The Republican majority on the court did not reach the constitutional issue, finding it to have been waived, and held that the procedure was permitted by the court rules.96 With respect to the issue of waiver, the majority stated that the right of confrontation need not be personally waived by the defendant.97 The court noted that this had been the law for over a century in Michigan.98 The court reaffirmed that to be valid, the waiver by counsel had to be reasonable trial strategy to which the client did not object on the record.99 The reasonableness of the trial strategy would be a strong presumption that the Defendant would have to rebut.100 In so doing, the court explicitly overruled a 1983 court of appeals decision, People v. Lawson,101 which had been cited for the proposition that counsel could not waive the defendants right to confront the witness.102 The court then continued to find that neither Buie nor his counsel had objected to the use of video technology, focusing on the events at trial rather than at the subsequent evidentiary hearing on the question.103
92. Id. at 544. 93. Id. at 548. 94. 491 Mich. 294; 817 N.W.2d 33 (2012). Another attorney in the State Appellate Defender Office represented Mr. Buie on appeal. 95. Id. 96. Id. at 297. 97. Id. at 305, 313 (citing, among other authority, Diaz v. United States, 223 U.S. 442 (1912)). 98. Id. at 307 (citing Justice Cooleys opinion in People v. Murray, 52 Mich. 288; 17 N.W. 843 (1883)). 99. Id. at 315. 100. Buie, 491 Mich. at 311, 315. 101. 124 Mich. App. 371; 335 N.W.2d 43 (1983). 102. Buie, 491 Mich. at 315. 103. Id. at 316 (Because an objection must be on the record, the focus should be on what transpired at trial and whether the trial court should reasonably have concluded that defense counsel objected to the use of the video technology.).

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Counsels statement that Buie wanted to question the veracity of these proceedings, so Ill leave that to the Courts discretion was not an objection to the use of video testimony.104 Whether this waiver was sound trial strategy was not addressed at the evidentiary hearing, and so the presumption in favor of the waiver had not been rebutted.105 The lack of an objection also meant that the court rule had not been violated.106 The entire court agreed that Michigan Court Rule 6.006(C)107 permits the use of video testimony for any sound reason.108 The dissenting justices, Justices Cavanagh and Marilyn Kelly,109 would hold that the use of two-way interactive video testimony under the circumstances of this case violated both the federal and state constitutional right to confrontation.110 The justices in the minority also disagreed that Buie had waived this right because he did let the attorney know that he objected to the procedure and she voiced that objection when she told the trial court that Buie questioned the veracity of these proceedings.111 In the dissents view, the majority got it wrong by condon[ing] a lawyers decision not to make a cognizable objection over the clients express wishes.112 The dissent also asserted that the majority opinion requires clients to have an unreasonably high level of legal knowledge, and would effectively force them to override their lawyers under these circumstances.113 B. Right to Self-Representation 1. People v. Brooks In People v. Brooks,114Anthony Brooks wanted to represent himself at his criminal trial. After representing himself for the first half of his preliminary examination, Mr. Brooks again sought to waive his right to counsel at his arraignment.115 The court flatly refused, even saying that
104. Id. 105. Id. at 317-18. 106. Id. at 319. 107. MICH. CT. R. 6.006(C). 108. Buie, 491 Mich. at 319, 323. 109. Justice Hathaway concurred in the result only. 110. Buie, 491 Mich. at 321 (Cavanagh, J., dissenting). 111. Id. 112. Id. at 322. 113. Id. at 323. 114. 293 Mich. App. 525; 809 N.W.2d 644 (2011), judgment vacated in part, appeal denied in part, 490 Mich. 993; 807 N.W.2d 303 (2012). Mr. Brooks was represented on appeal by another attorney in the State Appellate Defender Office. 115. Id. at 528-29.

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the court did not permit people to represent themselves.116 Brooks informed the court that he took medication for mental illness.117 At the final conference before trial, Brooks asked the trial judge (who was different than the arraignment judge) to be allowed to represent himself, invoking his constitutional right to do so.118 Recognizing that right, the court nonetheless denied Brooks request, referencing the fact that jail personnel had not been giving Brooks his medication.119 When trial began, Brooks repeatedly invoked his right to self-representation, and the court repeatedly denied his request.120 Showing dogged determination, Brooks raised the issue again when he pled before the end of trial and during his sentencing, all to no avail.121 The court of appeals granted Brooks a new trial, reminding trial courts that the right to counsel can be waived, like all constitutional rights, as long as the waiver is knowing, intelligent and voluntary.122 Unlike other rights, when defendants waive this right, courtroom proceedings become less, rather than more, efficient due in no small part to the lay persons lack of familiarity with and understanding of the law.123 This lack of knowledge, however, has no relevance to whether the defendant is knowingly exercising the right to self-representation.124 Courts must resist the temptation to brush such requests aside and must engage, on the record, in a methodical assessment of the wisdom of self-representation by the defendant.125 To assist in that assessment, the Michigan Supreme Court has provided the brightly illuminated path of the court rules.126 The trial judges in this case erred in relying instead on a universally repudiated legal-knowledge test that effectively eviscerates the constitutional right to self-representation.127
116. Id. at 530. 117. Id. 118. Id. at 531. 119. Id. at 531-32. 120. Brooks, 293 Mich. App. at 533. 121. Id. at 533-535. 122. Id. at 536-538, 542. 123. See William J. Stuntz, Waiving Rights in Criminal Procedure, 75 VA. L. REV. 761, 795 (1989). 124. Brooks, 293 Mich. App. at 539 (citing Indiana v. Edwards, 554 U.S. 164, 172 (2008)). 125. Id. at 538 (quoting People v. Adkins, 452 Mich. 702, 721; 551 N.W.2d 108 (1996), abrogated by People v. Williams, 470 Mich. 634; 683 N.W. 2d 597 (2004)). The adage about the wisdom of such a decision is well-known. As Gomez Addams put it in the movie The Addams Family, [t]hey say a man who represents himself has a fool for a client. Well, with God as my witness, I am that fool! THE ADDAMS FAMILY (Paramount Pictures 1991). 126. Id. at 538-39 (referring to MICH. CT. R. 6.005). 127. Id. at 540.

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While legal knowledge cannot be considered in evaluating the waiver of the right to self-representation, a defendants competency is certainly relevant.128 A person can be competent to stand trial and yet not be competent to represent herself.129 The trial court, however, must also make an adequate inquiry into the defendants mental state before deciding that the defendant cannot exercise the right to selfrepresentation.130 As the trial court did not make this inquiry, Brooks mental state could not be used to justify the trial courts refusal to allow him to represent himself.131 C. Effective Assistance of Counsel 1. People v. Armstrong As was the case in Fackelman, concern about a defendants innocence appeared to be a significant factor in the Michigan Supreme Courts grant of a new trial in People v. Armstrong.132 Unlike Fackelman, in which the question was legal culpability for acts the defendant undisputedly committed, in Armstrong, the defendants actual innocence was the question.133 Armstrong had been accused of rape by the fifteen year old daughter of one of his wifes co-workers and maintained his innocence at trial.134 He sought a new trial because defense counsel had failed to introduce into evidence the complainants cell phone records, and had therefore deprived him of his constitutional right to the effective assistance of counsel.135 In this particular case, appellate counsel filed a motion seeking a remand for Ginther,136 hearing on the question of the effective assistance of counsel.137 In an affidavit attached to the motion, trial counsel admitted his failure to admit the cell phone records was not a strategic decision and was simply an error.138 The court of appeals denied the motion, affirmed the convictions, and denied a motion for
128. Godinez v. Moran, 509 U.S. 389, 401 n. 12 (1993). 129. Edwards, 554 U.S. at 178. 130. Brooks, 293 Mich. App. at 542-43. 131. Id. 132. 490 Mich. 281; 806 N.W.2d 676 (2011). Armstrong was represented on appeal by another attorney in the State Appellate Defender Office. 133. Id. at 284. 134. Id. at 283-84. 135. Id. at 287-88. 136. People v. Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). 137. Armstrong, 490 Mich. at 288. 138. Id.

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reconsideration.139 The supreme court remanded the case to the trial court for the previously denied Ginther hearing, and both the trial court and the court of appeals denied the motion for new trial on the grounds that the defendant had not demonstrated sufficient prejudice.140 The Armstrong opinion broke no new legal ground with respect to the standard for the grant of a new trial for claims of the ineffective assistance of counsel.141 In such claims, the test is well-established: defendants must show (1) counsels performance was objectively unreasonable and (2) but for counsels deficient performance, a different result would have been reasonably probable.142 The opinion, however, offered guidance to the lower courts in the application of the second prong of the test, the prejudice to the defendant, holding that the reasoning of the court of appeals was flawed in several respects.143 Although the court of appeals found that the complainant had been thoroughly impeached at trial, the supreme court disagreed.144 Without the cell phone records, the attacks on the complainants credibility at trial were inconclusive and had less of a tendency to undermine the complainants credibility than documentary proof strongly suggesting that the complainant lied to this jury.145 Given the complainants testimony that the defendant had violently raped her and threatened to kill her, cell phone records revealing frequent communications with defendant . . . would have cast serious doubt on the substance of her accusations.146 The cell records were relevant to establish that the complainant was not credible, and a reasonable probability exists that if the jury had seen the records they would have discredited the complainant.147 The court also noted an apparent inconsistency in the court of appeals reasoning in finding no prejudice.148 On the one hand, there was no question that defense counsels actions were not the result of a reasonable trial strategy.149 Nonetheless, the court of appeals concluded
139. Id. 140. Id. 141. Compare Armstrong, 490 Mich. at 289-90 with People v. Frazier, 478 Mich. 231, 243; 733 N.W.2d 713 (2007). 142. Armstrong, 490 Mich. at 290 (citing Strickland v. Washington, 466 U.S. 668 (1984) and People v. Pickens, 446 Mich. 298; 521 N.W.2d 797 (1994)). 143. Id. at 291. 144. Id. 145. Id. 146. Id. at 291-92. 147. Id. at 292. 148. Armstrong, 490 Mich. at 293. 149. Id.

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that the cell records might have been detrimental to the defense case.150 The court also stated that even if the evidence might have cut against the defense slightly, it does not follow that the evidence would not also have worked so significantly against the complainant as to destroy her credibility and result in the defendants acquittal.151 Finally, the court held that it would have been important for the jury to see the actual records in light of what had actually occurred during trial, the facts of which the court said, [t]he Court of Appeals seemed to ignore . . . .152 D. Due Process 1. People v. Cole The vast majority of criminal cases in this country are resolved through plea bargains.153 By pleading either guilty or no contest, a criminal defendant waives several constitutional rights, and any such waiver must be knowing, voluntary, and intelligent.154 Defendants must be made fully aware of the direct consequences of their pleas.155 At issue in People v. Cole was whether lifetime electronic monitoring should be considered a direct consequence of a plea.156 A unanimous Michigan Supreme Court concluded that because electronic monitoring is part of the sentence, it is a direct consequence of the plea.157 The sentence to be imposed is obviously a direct consequence of any plea.158 Electronic monitoring is included in the penalty section of the crimes for which it may be imposed.159 The statutes direct that courts shall sentence defendants to electronic monitoring, and provide that monitoring is in addition to the other penalties imposed.160 Because electronic monitoring is statutorily defined as part of the sentence, it is necessarily a direct consequence of the plea.161 Consequently, the court held that criminal defendants must be informed that they will be subject

150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161.

Id. Id. Id. at 293-94. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). People v. Cole, 491 Mich. 325, 332; 817 N.W.2d 497 (2012). Id. at 333 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (1957)). Id. at 327. Id. at 328. Id. at 334. Id. at 335. Cole, 491 Mich. at 335-36. Id. at 336.

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to electronic monitoring before they enter a plea of guilty or no contest.162 IV. PROCEDURAL RULES: GRANT OF A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE A. People v. Rao The Michigan Supreme Court elucidate[d] and reemphasize[d] parts of the four part test governing the grant of new trials based on newly discovered evidence in People v. Rao.163 That test requires the defendant to show: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.164 The court focused on the first and third elements of the test, holding that evidence cannot be newly discovered if either the defendant or his counsel was aware of the evidence at the time of trial.165 This is true even if the evidence is unavailable to the defendant at that time.166 The majority explained that cases in which the evidence relied upon what was known to the defendant but unavailable illustrate the interplay between newly discovered and reasonable diligence.167 [W]hen a defendant is aware of evidence before trial, he or she is charged with the burden of using reasonable diligence to make that evidence available and produce it at trial.168 A defendant (and his counsel) use reasonable diligence when they take advantage of available procedures to secure that evidence for trial.169 If the defendant fails to do so, he cannot succeed on a motion for new trial.170 The court explained that defining the term otherwise

162. Id. at 337. 163. 491 Mich. 271; 815 N.W.2d 105, rehg denied, 491 Mich. 949; 821 N.W.2d 781 (2012). 164. Id. at 279 (quoting People v. Cress, 468 Mich. 678, 692; 664 N.W.2d 174 (2003)). The court left open, however, the question of whether newly discovered evidence must actually have existed at the time of trial. Id. at 285 n.2. 165. Id. at 281. 166. Id. In reaching this conclusion, the court expressly referenced, and apparently endorsed, People v. Terrell, 289 Mich. App. 553; 797 N.W.2d 684 (2010), a case discussed in the previous Survey. 167. Id. 168. Id. 169. Rao, 491 Mich. at 283. 170. Id.

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would contravene principles of fairness and finality and allow defendants to engage in judicial sandbagging . . . .171 Applying this understanding of the terms newly-discovered evidence and reasonable diligence, the court held that Rao failed to meet her burden.172 Rao had been convicted of abusing her adopted daughter, and the evidence at issue were additional x-rays of the daughters ribs taken after November 2007.173 The majority noted that at trial, the defense counsel asked questions of several testifying doctors about how their opinions could have been affected by x-rays taken after November 2007, and so was aware of the potential effect of such x-rays.174 Given the defendants awareness that such x-rays, if they existed, would be helpful to his defense, the Court stated that the claim was more accurately characterized as a claim of newly available evidence . . . .175 It was the defenses burden to show that it had acted with reasonable diligence, regardless of whether the prosecutor focused on that part of the test in opposing the motion for new trial.176 Rejecting the defendants explanations about why she had not obtained the x-rays, including a cancer risk to the child, the court found that the defenses failure to move in the trial court to take additional x-rays precluded the defense from showing it had exercised reasonable diligence in this case.177 Simply requesting such x-rays, as the defense had done, was not enough: the defense had to either move to obtain them (if they existed) or take them (if they did not).178 Not doing so was a reasonable trial strategy.179 Therefore, the motion for new trial should have been denied.

171. Id. at 285. One might wonder why a criminal defendant would gamble with her freedom by engaging in such sandbagging. 172. Id. at 292. 173. Id. at 286. 174. Id. at 287. 175. Rao, 491 Mich. at 288. 176. Id. at 289. 177. Id. at 290. 178. Id. 179. Id. at 292 (Hathaway, J., dissenting). The dissent would have remanded the case to the trial court for an evidentiary hearing.