People of Michigan v. Robert Michael Freebold

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

January 13, 2025

Plaintiff-Appellee, 2:27 PM

v No. 366178

Benzie Circuit Court

ROBERT MICHAEL FREEBOLD, LC No. 2022-002851-FC

Defendant-Appellant.

Before: PATEL, P.J., and MURRAY and YATES, JJ.

PER CURIAM.

Defendant appeals by right his convictions, following a jury trial, of three counts of first-

degree premeditated murder, MCL 750.316(1)(a). Defendant was sentenced to serve life in prison

without the possibility of parole. We affirm.

I. FACTUAL BACKGROUND

When police responded to a dropped 911 call from defendant’s phone, they found

defendant lying in the open front door of his home with a towel clutched to his face. Inside,

defendant’s ex-wife, Marilyn, his son, Bobby, and Marilyn’s son, Malachi, were lying in pools of

blood. Guns were found by Bobby and Malachi. According to Marilyn’s daughter, defendant had

recently rekindled a relationship with Marilyn and had moved into the home after Malachi’s father

had moved out. She also testified that, when Marilyn was driving her home the afternoon before

the murders, Marilyn had reported that she felt unsafe because Malachi had physically intervened

in a heated argument between Marilyn and defendant and knocked defendant down about two

weeks before.

Law-enforcement and emergency-service responders initially thought that defendant had

been shot, and he was taken to the hospital. When he was first interviewed, defendant had a

breathing tube and could not speak. By responding to yes-or-no questions with his fist, defendant

indicated that he had been hit twice in the head with a gun by Malachi and that Bobby had shot

Marilyn and Malachi. A blood-spatter analyst opined that Bobby could not have moved from

where he initially had been shot to where he was found dead if Malachi had been present in the

hallway where he was found. The analyst also opined that Malachi’s body may have been “staged”

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and that defendant was the only person who could have been responsible for bloodstains in the

master bedroom, including his own blood inside the bedroom’s locked gun safe. The jury

ultimately found defendant guilty as previously described.

II. INSANITY DEFENSE

Defendant argues that the trial court erred by precluding him from presenting an insanity

defense on the basis that his failure to cooperate with a criminal-responsibility evaluation should

be excused.

We review the trial court’s decision regarding a defendant’s cooperation with a criminal-

responsibility evaluation for an abuse of discretion, see People v Hayes, 421 Mich 271, 280; 364

NW2d 635 (1984), which occurs when its decision falls outside the range of principled outcomes

or when it makes an error of law, People v Christian, 510 Mich 52, 75; 987 NW2d 29 (2022).

“It is an affirmative defense to a prosecution for a criminal offense that the defendant was

legally insane when he or she committed the acts constituting the offense.” MCL 768.21a(1). The

procedures to assert an insanity defense are provided in MCL 768.20a, which states in pertinent

part:

(1) If a defendant in a felony case proposes to offer in his or her defense

testimony to establish his or her insanity at the time of an alleged offense, the

defendant shall file and serve upon the court and the prosecuting attorney a notice

in writing of his or her intention to assert the defense of insanity . . . .

(2) Upon receipt of a notice of an intention to assert the defense of insanity,

a court shall order the defendant to undergo an examination relating to his or her

claim of insanity by personnel of the center for forensic psychiatry or by other

qualified personnel, as applicable, for a period not to exceed 60 days from the date

of the order. When the defendant is to be held in jail pending trial, the center or the

other qualified personnel may perform the examination in the jail, or may notify

the sheriff to transport the defendant to the center or facility used by the qualified

personnel for the examination, and the sheriff shall return the defendant to the jail

upon completion of the examination. . . .

(3) The defendant may, at his or her own expense, secure an independent

psychiatric evaluation by a clinician of his or her choice on the issue of his or her

insanity at the time the alleged offense was committed. If the defendant is indigent,

the court may, upon showing of good cause, order that the county pay for an

independent psychiatric evaluation. The defendant shall notify the prosecuting

attorney at least 5 days before the day scheduled for the independent evaluation that

he or she intends to secure such an evaluation. The prosecuting attorney may

similarly obtain independent psychiatric evaluation. A clinician secured by an

indigent defendant is entitled to receive a reasonable fee as approved by the court.

(4) The defendant shall fully cooperate in his or her examination by

personnel of the center for forensic psychiatry or by other qualified personnel, and

by any other independent examiners for the defense and prosecution. If he or she

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fails to cooperate, and that failure is established to the satisfaction of the court at a

hearing prior to trial, the defendant shall be barred from presenting testimony

relating to his or her insanity at the trial of the case.

“The defendant is required to fully cooperate so that the examining psychologist can accurately

determine the defendant’s competency to stand trial and criminal responsibility at the time of the

offense.” Hayes, 421 Mich at 282. The insanity-defense statute is designed to protect the integrity

of the evidence concerning an insanity defense, and full cooperation is required for the parties and

court to “have a fair and accurate evaluation of the defendant’s competency to stand trial and

criminal responsibility.” Id. at 280-281.

We are not definitely and firmly convinced that the trial court made a mistake by barring

defendant from presenting an insanity defense under these circumstances. The record states that

the psychologist had seen defendant twice before for other evaluations, and defendant had

previously refused to participate in an evaluation over teleconferencing software and had been

taken for an in-person evaluation. When the psychologist attempted to conduct the criminal-

responsibility evaluation at issue over teleconferencing software, she saw defendant through the

camera, and she introduced herself. Defendant then looked at the camera, did not respond verbally,

stayed in the room for “all of five minutes,” then asked to be let out and left the room. The

psychologist was not able to complete the interview. After the hearing, the trial court determined

that defendant knew who the psychologist was and chose to walk out and not cooperate. These

facts support the trial court finding.

Defendant argues before this Court, as he did in the trial court, that he left only because he

was told that it was the wrong type of examination, and that is not a basis to find he did not

cooperate. However, the trial court found that defendant had chosen to walk out, regardless of

whether he had been told that it was the correct type of examination, and on appeal defendant does

not explain how this would render the court’s finding that he did not cooperate clearly erroneous.

After all, defendant is required to “fully cooperate in his or her examination by personnel of the

center for forensic psychiatry or by other qualified personnel, and by any other independent

examiners for the defense and prosecution.” MCL 768.20a(4) (emphasis added). Regardless of

which type of evaluation defendant thought that he was being asked to participate in, his lack of

cooperation warranted preclusion of his insanity defense.1

Defendant posits that the trial court erred by relying on MCR 6.006 to conclude that

videoconferencing was appropriate for defendant’s criminal-responsibility evaluation.

1

We reject the argument that the trial court failed to focus on whether defendant, who had notified

the court about a hearing impairment, was having trouble communicating. It is true that defendant

notified the court that he had a hearing impairment, but the trial court addressed the matter. It

asked whether defendant could hear the court at every hearing, agreed that defendant could be

present in person at future hearings, and offered defendant a hearing device and copies of

transcripts to assist him. Defendant’s attorney later averred that defendant had been provided with

a transcript of every hearing. The record does not support the notion that the court disregarded

defendant’s hearing impairment.

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Specifically, he argues that his criminal-responsibility evaluation was an “other proceeding” for

which the use of videoconferencing technology is not preferred under this court rule.

At the time of defendant’s case, MCR 6.006 provided in pertinent part:

(A) Generally.

(1) Except as otherwise provided by this rule, the use of videoconferencing

technology under this rule is subject to MCR 2.407.

(2) A court may, at the request of any participant, or sua sponte, allow the

use of videoconferencing technology by any participant in a criminal proceeding.

(3) When determining whether to utilize videoconferencing technology, the

court shall consider constitutional requirements, in addition to the factors contained

in MCR 2.407.

* * *

(B) Mode and Proceedings in Cases Cognizable in the Circuit Court.

(1) Generally. Circuit courts may use videoconferencing technology to

conduct any non-evidentiary or trial proceeding.

(2) Preferred Mode. The use of videoconferencing technology shall be

preferred for the following proceedings:

(a) initial arraignments on the information;

(b) pretrial conferences;

(c) motions pursuant to MCR 2.119; and

(d) Pleas.

* * *

(3) Presumed Mode. In all other proceedings, the in-person appearance of

the parties, witnesses, and other participants is presumed. [MCR 6.006, as amended

by 510 Mich xxxiv (2022).]

When considering the language of MCR 6.006 and MCR 2.407 in context, Honigman

Miller Schwartz & Cohn LLP v Detroit, 505 Mich 284, 318; 952 NW2d 358 (2020), there is no

indication that a criminal-responsibility evaluation is a “proceeding.” Explicitly mentioned

proceedings are arraignments, pretrial conferences, motions, and pleas. MCR 6.006(B)(2). All of

these proceedings take place within a courtroom. Further, the factors a court should consider when

deciding whether to allow videoconferencing technology during a proceeding largely focus on the

courtroom. See former MCR 2.407(C)(3), (5), (7), and (8). There is no indication that a criminal-

responsibility evaluation is similar to the types of proceedings to which MCR 6.006 applies, and

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the trial court was not required to presume that defendant was entitled to be present in person for

his criminal-responsibility evaluation.2

III. SUBSTITUTION OF COUNSEL

Defendant argues that the trial court abused its discretion by denying his motion to

substitute counsel because his public defender (1) had previously represented one of the victims,

(2) was not diligent and did not communicate with defendant, and (3) failed to provide defendant

with materials necessary to the defense, all of which constituted good cause. We review for an

abuse of discretion a trial court’s decision affecting a defendant’s right to counsel of choice.

People v Akins, 259 Mich App 545, 556-557; 675 NW2d 863 (2003).

The United States and Michigan Constitutions provide that an accused is entitled to counsel

to assist in the defense. US Const, Am 6; Const 1963, art 1, § 20. However, the right to counsel

of choice is “limited and may not extend to a defendant under certain circumstances.” People v

Bailey, 330 Mich App 41, 56; 944 NW2d 370 (2019) (quotation marks and citation omitted). An

indigent defendant is not entitled to the attorney of his choice or to have the trial court replace the

originally-appointed attorney on request. People v McFall, 309 Mich App 377, 382; 873 NW2d

112 (2015). The trial court may appoint substitute counsel “only upon a showing of good cause

and where substitution will not unreasonably disrupt the judicial process.” Id. at 382-383

(quotation marks and citation omitted).

Good cause exists when a defendant and appointed counsel have a legitimate difference of

opinion regarding a fundamental trial tactic, when there is a breakdown of the attorney-client

relationship, or when the defendant’s appointed counsel lacks diligence or is disinterested. Id.

at 383. Neither the defendant’s general unhappiness with appointed counsel nor the defendant’s

disagreement with counsel’s professional judgment are good causes to appoint substitute counsel.

People v Strickland, 293 Mich App 393, 398; 810 NW2d 660 (2011). Similarly, a defendant’s

lack of confidence in appointed counsel is not good cause unless the defendant supports the lack

of confidence with a substantial reason. Id. “A defendant may not purposely break down the

attorney-client relationship by refusing to cooperate with his assigned attorney and then argue that

there is good cause for a substitution of counsel.” People v Meyers (On Remand), 124 Mich App

148, 166-167; 335 NW2d 189 (1983).

“[I]n order to demonstrate that a conflict of interest has violated his Sixth Amendment

rights, a defendant ‘must establish that an actual conflict of interest adversely affected his lawyer’s

2

To the extent defendant argues that the trial court’s ruling that he could not present an insanity

defense infringed on his constitutional right to present a defense, it is without merit. “[T]here is

no constitutional right to assert an insanity defense.” Hayes, 421 Mich at 279. Further, although

the right to present a defense is a fundamental element of due process, it is not an absolute right,

and the defendant must still comply with procedural rules. Id. Defendant’s failure to comply with

the procedural requirements of MCL 768.20a, resulting in the prevention of his presenting an

insanity defense, did not deprive him of his constitutional right to present a defense.

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performance.’ ” People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998), quoting Cuyler v

Sullivan, 446 US 335, 350; 100 S Ct 1708; 64 L Ed 2d 333 (1980). This Court presumes that the

defendant was prejudiced only if (1) counsel actively represented conflicting interests, and (2) the

conflict adversely affected counsel’s performance. Smith, 456 Mich at 556.

Here, defendant was initially represented by the public defender’s office. He substituted

counsel in February 2021, and fired substitute counsel in February 2022. He requested the

appointment of a panel of attorneys or the appointment of an attorney who was not one of four

listed attorneys. The trial court again ordered defendant to be represented by the public defender’s

office. Defendant then requested to remove his public defender in August 2022, arguing that his

attorney had a conflict of interest because he had represented one of the victims and that the

defender had lacked diligence in a variety of ways. At the hearing, the defender explained that he

had represented Bobby, who had been the subject of a guardianship, in November 2016. At that

time, he had not learned anything about defendant and was not even aware of where defendant

was, and he did not remember representing Bobby until defendant drew it to the court’s attention.

The court determined that defendant had not established good cause to remove the defender, and

it noted that the amount of time defendant alleged that the defender had lacked diligence was not

possible because he had not been defendant’s attorney for that long.

Defendant subsequently filed repeated motions to substitute counsel, and the trial court

investigated each allegation on the record and determined that defendant had not established good

cause to warrant substituting counsel. We discern no error in the trial court’s diligent inquiries

into defendant’s concerns. Defendant filed pro se motions regarding witnesses he had not

mentioned to counsel, and counsel agreed to investigate those witnesses or indicated that they

already had been investigated. Defendant filed a pro se motion concerning other-acts evidence,

began to argue it, and requested that the defender finish the argument. Further, despite many

allegations that the defender was not meeting with him frequently enough, defendant refused to

meet with the defender as the case was approaching trial. In light of this fact, we are not convinced

that the court erred when it found that defendant was deliberately attempting to sabotage his

attorney-client relationship. The court’s determination that defendant was engaged in “nothing

but gamesmanship,” and that his attorneys had performed their constitutional duties, is supported

by the record.3

IV. STANDARD 4 BRIEF

In defendant’s Standard 4 brief, he asserts a variety of errors. None have merit.

First, defendant raises issues concerning the effective assistance of counsel. A defendant

must move the trial court for a new trial or evidentiary hearing to preserve an argument that counsel

provided ineffective assistance. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

Or, the argument can be preserved if the defendant files a motion with this Court to remand for a

3

Concerning the unsworn affidavit defendant provided in support of this argument, we note that

it duplicates many of the allegations that defendant made before the lower court or contradicts

facts in the established lower court record. To the extent that it does not duplicate those allegations,

it is contrary to statements made in proofs of service before the lower court.

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Ginther hearing, even if this Court denies the motion. People v Abcumby-Blair, 335 Mich App

210, 227; 966 NW2d 437 (2020). Defendant has not properly preserved his arguments. When

considering unpreserved arguments of ineffective assistance of counsel, this Court’s review is

limited to mistakes apparent from the record. People v Riley, 468 Mich 135, 139; 659 NW2d 611

(2003).

A criminal defendant has a fundamental right to the effective assistance of counsel. US

Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 653-654; 104 S Ct

2039; 80 L Ed 2d 657 (1984). The United States Supreme Court has observed that the rights to

counsel, due process, and a fair trial are intertwined:

[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect

the fundamental right to a fair trial. The Constitution guarantees a fair trial through

the Due Process Clauses, but it defines the basic elements of a fair trial largely

through the several provisions of the Sixth Amendment, including the Counsel

Clause[.] [Strickland v Washington, 466 US 668, 684-685; 104 S Ct 2052; 80 L Ed

2d 674 (1984).]

First, defendant argues that defense counsel assisted the prosecutor in convicting him by

offering exhibits “for the people” and that defense counsel denied consideration of his March 1,

2023 pro se subpoena, which established that counsel was biased against him in favor of the

prosecution. Defendant appears to refer to his objection to a stipulation that he was the owner of

one of the pistols involved in the shooting. Defense counsel did not provide ineffective assistance

by offering this stipulation.

What evidence to present is a matter of trial strategy. People v Horn, 279 Mich App 31,

39; 755 NW2d 212 (2008). Although counsel’s strategic decisions must be objectively reasonable,

the defendant must overcome the strong presumption that defense counsel’s performance

constituted sound trial strategy. People v Yeager, 511 Mich 478, 488; 999 NW2d 490 (2023).

When presuming that counsel rendered effective assistance, this Court should “affirmatively

entertain the range of possible reasons . . . counsel may have had for proceeding as they did.”

People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation marks and citation

omitted).

There is no indication that stipulating to this fact was an unsound trial strategy. Defense

counsel may have thought that challenging who owned the pistol would undermine the credibility

of the defense by contesting an easily proven fact. An attorney may reasonably decide that it is

better to not draw attention to something at trial. See People v Eliason, 300 Mich App 293, 303;

833 NW2d 357 (2013) (concerning objections to improper comments). There was already

evidence in the record that there was a receipt for the other handgun in one of defendant’s safes.

Defense counsel may reasonably have thought that challenging the ownership of the second gun

would draw attention to the fact that defendant owned both guns and decided that it was better to

not draw attention to those facts at trial.

Next, defendant argues that his counsel provided ineffective assistance by failing to present

any evidence, including failing to present early crime-scene photographs and failing to subpoena

witnesses. However, defendant has not established on appeal that the witnesses would have

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testified favorably, and regardless, the record reflects that counsel investigated defendant’s

proposed witnesses. Defendant has abandoned his argument regarding the early crime-scene

photographs because he has not supported this statement with any discernable argument.

Defense counsel’s decisions regarding which witnesses to call and how to question the

witnesses are matters of trial strategy. People v Jackson (On Reconsideration), 313 Mich App

409, 432; 884 NW2d 297 (2015). A defendant asserting an ineffective-assistance claim has the

burden to establish the factual predicate for the claim. People v Loew, 340 Mich App 100, 120-

121; 985 NW2d 255 (2022), aff’d ___ Mich ___; ___ NW3d ___ (2024) (Docket No. 164133).

Without some indication that the witness would have offered evidence favorable to defendant, a

defendant cannot establish that counsel’s failure to call the witness constituted ineffective

assistance. People v Carll, 322 Mich App 690, 703; 915 NW2d 387 (2018).

The record reflects that defendant initially did not raise these possible witnesses with his

counsel. When the issue was explored on the record, defense counsel was familiar with the medical

witnesses and had considered whether they would be acceptable, and he was willing to discuss the

witnesses with defendant. Further, because defendant has not presented any evidence that these

witnesses would have testified favorably, he has not established that counsel’s decisions were

unreasonable or prejudicial.

Additionally, from defendant’s argument, it is unclear how defense counsel’s failure to

present early crime-scene photographs was an unreasonable or prejudicial decision. Defendant

merely describes this evidence as exculpatory: he does not explain how it is so. “An appellant

may not merely announce his position and leave it to this Court to discover and rationalize the

basis for his claims . . . .” People v Iannucci, 314 Mich App 542, 545; 887 NW2d 817 (2016)

(quotation marks and citation omitted). We cannot analyze an argument that has no rationale, and

we deem this argument abandoned.

Third, defendant argues that counsel pursued an unreasonable strategy by failing to present

a case-in-chief and instead arguing “we don’t know.” The record does not support defendant’s

argument.

The party seeking reversal on appeal has the burden to provide the Court with a record that

establishes the factual basis of the argument. People v Elston, 462 Mich 751, 762; 614 NW2d 595

(2000). Defense counsel’s closing argument set forth the theory that Malachi had assaulted

defendant before, had assaulted him that night, and that it was possible that Bobby, like the first

responders, had thought that defendant had been shot. Defense counsel posited that Bobby could

have retrieved the gun from the safe and that he may have decided to shoot himself in the head

after the incident. The record does not support that defense counsel offered no theory in

defendant’s defense.

Fourth, defense counsel did not provide ineffective assistance by failing to request to

remove one juror who had previous interactions with defendant and was ultimately elected jury

foreperson, and a second juror who was sleeping or crying throughout the trial. Again, there is no

support in the record for these arguments. Review of the voir dire of the jury foreperson does not

support defendant’s argument that he knew defendant, and the record contains no evidence that a

juror was crying or sleeping. Defendant’s arguments that counsel biased the jury by treating him

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with contempt or leaning away from him as if he was offensive fail for the same reason. The

existing record contains no evidence of these nonverbal cues.

Fifth, defendant argues that defense counsel provided ineffective assistance by failing to

request altered jury instructions and by allowing vague jury instructions to be presented. Whether

to request a particular jury instruction is a matter of trial strategy. See People v Matuszak, 263

Mich App 42, 59-60; 687 NW2d 342 (2004). However, “[a]n appellant may not merely announce

his position and leave it to this Court to discover and rationalize the basis for his claims . . . .”

Iannucci, 314 Mich App at 545 (quotation marks and citation omitted). Because defendant has

not identified what instructions defense counsel should have requested or which instructions were

allegedly vague, it is not possible to meaningfully analyze this argument. Regardless, we note that

counsel did request altered jury instructions and successfully obtained an instruction on the lesser

offense of voluntary manslaughter, and we have identified no obviously vague instructions.

Sixth, defendant argues that defense counsel provided ineffective assistance by failing to

provide him with the complete case file and photographs. Proofs of service in the lower court file

indicate that defendant was provided with copies of hearing transcripts, CDs of crime-scene

photographs, his own motions, and the entire lower court file. There is no error apparent from the

record.

Seventh, defendant argues that counsel provided ineffective assistance by failing to

introduce evidence of a prior assault case involving one of the victims. Defense counsel is not

required to make meritless or futile objections. People v Putman, 309 Mich App 240, 245; 870

NW2d 593 (2015). Generally, evidence regarding a person’s other crimes, wrongs, or acts is not

permissible to establish that a person acted in accordance with that character on a particular

occasion. MRE 404(b)(1). There is no indication that defense counsel provided ineffective

assistance by failing to attempt to admit evidence that there had been an assault case involving one

of the victims.

Eighth, defendant argues that the prosecutor committed misconduct by relying on a picture

of a blood drop in closing argument that was not admitted during trial. Defendant has abandoned

this issue by failing to support it.

A prosecutor can deny a defendant’s right to a fair trial by making improper remarks that

infringe on a defendant’s constitutional rights or by making remarks that “so infect[] the trial with

unfairness as to make the resulting conviction a denial of due process.” Donnelly v DeChristoforo,

416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). A prosecutor may not argue the effect of

facts that were not admitted as evidence. People v Stanaway, 446 Mich 643, 686; 521 NW2d 557

(1994). However, “[a]n appellant may not merely announce his position and leave it to this Court

to discover and rationalize the basis for his claims . . . .” Iannucci, 314 Mich App at 545 (quotation

marks and citation omitted). Over 150 exhibits were marked and received, and defendant has not

identified which photograph the prosecutor referred to in closing that allegedly was not in

evidence. Again, we will not discover and rationalize the basis for this argument on defendant’s

behalf.

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Ninth, defendant argues that the victim’s family made loud remarks in the presence of the

jury. Again, the record does not contain any support for defendant’s assertion that such an outburst

occurred, and without any record support, defendant’s argument fails.

Tenth, defendant argues that he was not provided with a copy of his information or

indictment. However, proof of service indicates that defendant was provided a copy of the lower

court file, which included his felony information.

Eleventh, defendant requests a change of venue. “The general venue rule is that defendants

should be tried in the county where the crime was committed.” People v Houthoofd, 487 Mich

568, 579; 790 NW2d 315 (2010). The crime and trial occurred in Benzie County. Defendant’s

argument lacks merit.

Finally, we deem the rest of defendant’s arguments abandoned. Defendant’s question

regarding how a crime lab could adequately investigate a scene in five hours is unaccompanied by

a legal argument and appears to be rhetorical. Defendant has not identified what evidence was

suppressed or explained how it was exculpatory. He asserts that his rights under the Fourth

Amendment to the United States Constitution were violated, but he does so in a conclusory fashion,

without even the barest of arguments. Finally, he argues that the Model Rules of Professional

Conduct were violated. Again, defendant asserted this position without any rationalization,

including how the Model Rules of Professional Conduct should apply in his case or how such

applications were violated.

Affirmed.

/s/ Sima G. Patel

/s/ Christopher M. Murray

/s/ Christopher P. Yates

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