The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 1, 2021
Plaintiff-Appellee,
v No. 350108
Genesee Circuit Court
RAY LIVINGSTON LEE, LC No. 17-042041-FC
Defendant-Appellant.
Before: JANSEN, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant, Ray Livingston Lee, appeals by right from his convictions by a jury of
voluntary manslaughter, MCL 750.321, felon in possession of a firearm (“felon in possession”),
MCL 750.224f, and two counts of possessing a firearm during the commission of a felony
(“felony-firearm”), MCL 750.227b. This matter arises out of the undisputed fact that defendant
shot his long-time friend, Ray Pumell, during an altercation instigated by Pumell. Defendant’s
theory of the case was self-defense. Defendant was sentenced, as a second-offense habitual
offender, to concurrent terms of 107 to 270 months’ imprisonment for manslaughter and 28 to 90
months’ imprisonment for felon in possession, both consecutive to concurrent two-year terms for
felony-firearm. Defendant received 724 days of credit applied to his felony-firearm sentences.
Defendant was taken into custody on the night of the shooting, and he has remained in custody
since that time. Defendant seeks vacation of his convictions and dismissal of his charges, arguing
that he was deprived of his right to a speedy trial, improperly incarcerated for the duration of the
proceedings, and denied the effective assistance of counsel because trial counsel failed to invoke
his right to a speedy trial and seek his pretrial release. We affirm.
I. FACTUAL BACKGROUND
From the outset, defendant fully conceded that he shot the victim. Defendant’s theory of
the case was that he acted in self-defense and was guilty of manslaughter at the most, rather than
second-degree murder as he was charged. The victim was significantly smaller than defendant.
Although they had been very close, like “brothers,” they had recently had “some problems.” On
July 27, 2017, the victim had consumed a beer and a “short bottle of gin,” although the victim’s
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then-girlfriend opined that the victim was not intoxicated. With the girlfriend as a passenger, the
victim unexpectedly and abruptly decided to drive to defendant’s house, which the girlfriend found
concerning. The victim parked in the street, exited the vehicle, and approached defendant, who
was in his yard. The girlfriend heard the victim challenge defendant, asking “did he still wanna
fight him, you know, did he still wanna fight.” The girlfriend did not hear either the victim or
defendant say anything further, but the “next thing” she saw was defendant and the victim fighting.
The girlfriend opined that defendant initiated the fight and, notwithstanding the victim’s smaller
size, the victim appeared to be winning the fight. The fight moved inside a car parked in the
driveway, with the victim on top of defendant, and then moved “up against the fence” with the
victim “drilling on” defendant. The girlfriend never saw defendant throw a punch and only saw
the victim continually striking defendant. She then saw defendant “fumbling in his pocket,” heard
four gunshots, smelled fire and saw smoke, and saw the victim fall to the ground. She then saw
defendant raise his hand, whereupon she fled to her vehicle and drove away, fearful that she “might
be next.” The girlfriend was the only eyewitness to testify.
Numerous police officers and evidence technicians also testified about what they observed
when they responded to the shooting and during the ensuing investigation. One officer saw a
holster for a “.38 Special” on the passenger side of one of the vehicles in defendant’s driveway. A
search warrant was obtained, following which a handgun was recovered from the inside of a cooler
found in the same vehicle. An empty box of ammunition and a number of live .38 caliber rounds
were found in a bedroom in defendant’s house. Another officer encountered defendant in the
roadway, and defendant indicated that he was the owner of the residence. Defendant told the
officer that he had been celebrating his birthday with some friends, when the victim, who defendant
identified as his brother, stumbled out of the vehicle and collapsed on the ground, whereupon
defendant called 911. The police initially regarded defendant as a witness and asked “open-ended
questions” about what happened; defendant never said anything about having shot the victim or
having been afraid of the victim, nor did defendant appear injured. Defendant was eventually
taken to the police station, where he was interviewed. A recording of the interview was played for
the jury.
Meanwhile, the victim was taken to the hospital by ambulance, where he was pronounced
dead the next morning. The medical examiner concluded that the victim had been shot four times,
all of which contributed to the victim’s death, but the wound to his abdomen was the worst. The
victim had a blood alcohol level of .167. Three bullets were recovered from the victim’s body,
two of which were .38 Special and one of which was .22 caliber. One of the .38 Special bullets
was conclusively fired from the handgun found in the cooler, one of the .38 Special bullets was
consistent with the handgun, and the .22 must have been fired from a different gun. It was
explained that shooting victims were not-uncommonly found to have been shot non-fatally on
previous occasions and to still have an old bullet lodged in their body. The handgun was swabbed
for DNA, which was compared to a sample taken from defendant, but there were too many DNA
contributors on the swab from the gun to make an interpretation.
The jury acquitted defendant of second-degree murder; but he was convicted of voluntary
manslaughter, felon-in-possession, and felony-firearm as described above.
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II. PROCEDURAL BACKGROUND
It is not disputed that defendant was taken into custody on the night of the shooting, July
27, 2017, and he has been in custody ever since. Although there is a handwritten notation in the
lower court record suggesting that defendant made some kind of appearance on August 2, 2017,
that appearance was neither recorded nor docketed, and apparently Genesee County “did away
with” formal arraignments. Defendant’s bond was set at $50,000 cash/surety for his weapons
charges, but he was denied bond for his second-degree murder charge. Thereafter, the proceedings
were beset by numerous delays due to a combination of unavailable witnesses and tardy laboratory
reports, plea negotiations, the retirement and replacement of the original presiding judge, the
realization that some forensic evidence had not been analyzed, a phone call defendant placed from
jail that the attorneys believed might be incriminating, and scheduling conflicts for the court and
for the attorneys. Defendant’s trial commenced on June 12, 2019, by which time defendant had
been in custody for a little more than 22 months. Although many discussions occurred off the
record, it appears that defendant’s trial counsel generally acquiesced in the delays due to
outstanding laboratory and forensic reports in the interest of having a “complete file.”
After defendant filed his appeal, this Court granted his motion to remand for an evidentiary
hearing. Defendant generally contended that his trial counsel had been ineffective for failing to
insist upon defendant’s right to a speedy trial, for failing to seek a release on personal recognizance
pursuant to MCR 6.004, and for failing to ensure that defendant’s arguments on those issues were
preserved for appeal. He therefore “request[ed] that this Court remand his case to the trial court
for a full evidentiary hearing into his allegations of ineffective assistance of counsel.” This Court
granted the motion “so that defendant may bring a motion for appropriate relief and have an
evidentiary hearing as to the claim of ineffective assistance of counsel raised in the motion for
remand,” but noting that the proceedings would be “limited to the issues raised in the motion for
remand.”
At the hearing, defendant’s trial counsel testified that he had been in the practice of law for
more than 40 years, mostly in Genesee County, he was familiar with the right to a speedy trial, he
did not believe defendant waived that right, and he agreed that defendant had been in custody since
July 27, 2017. Counsel opined that it was unusual for cases to take 23 months to reach trial, but it
was “not unusual to run into issues of discovery” despite believing that evidence ought to have
been ready. Counsel believed he would have been laughed at for invoking defendant’s right to a
speedy trial, so he acquiesced in the adjournments to obtain the outstanding evidence. He did not
bring any other discovery motions because he “would have been complaining about the
prosecutor’s office and that isn’t where the problem was.”
Counsel stated that he discussed everything with defendant, and he was surprised by
defendant’s contention that he was not present for some hearings. Counsel further stated that he
believed the transcripts stating that defendant was absent must be incorrect “knowing the judge
involved,” with the exception of “two video ones.” He also waived defendant’s presence for one
hearing at which he expected only to be given a trial date. Counsel agreed that defendant was not
happy about the situation, but contended that defendant understood the need for the adjournments,
and that they discussed and agreed to the decision to obtain a complete file instead of insisting
upon a speedy trial. Counsel also stated that defendant voiced questions and they had discussions.
Trial counsel further noted that he discussed extensively with defendant the fact that the best-case
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scenario was only an acquittal of the murder charge, which meant he would have to admit to the
felon-in-possession charge. Consequently, counsel explained to defendant that he was going to be
sentenced no matter what, and the time he spent in jail was “all good time” because it would be
credited against his inevitable felony-firearm sentence. Counsel stated that he visited defendant
41 times, and although defendant was unhappy about the situation, defendant never expressed
unhappiness with counsel.
Counsel stated that they “were in [plea] negotiation right up to June 6th, the trial, when the
trial started” and that he had been trying to solicit a plea offer “back in district court.” Counsel
only obtained a plea offer from the prosecutor by “going above her head,” and although the
prosecution offered manslaughter, the prosecution also specified a mandatory twelve-year
minimum sentence. Counsel stated that defendant was interested in a plea offer, but he refused to
entertain the mandatory minimum sentence. Based on his familiarity with the judges and
prosecutors in Genesee County, and his meetings with the prosecution, counsel believed the
prosecution would not budge on the plea offer under any circumstances. At defendant’s request,
counsel nevertheless continued attempting to negotiate a better plea agreement.
Counsel agreed that he could have invoked the right to a speedy trial and used the absence
of forensic evidence against the prosecution; but he believed doing so would have been ineffective
because some of the evidence might have been beneficial, and he could not “just presume things
are going to be good or bad.” He emphasized that his policy for all of his cases was that “if it’s
there to be had, I want it before I go to trial . . . It’s just that simple.” He emphasized that he
would prefer to err against a speedy trial in order to ensure that he had all the evidence so his
clients would receive a proper trial. Counsel recognized that his decision not to insist upon a
speedy trial “was likely to get me where I’m sitting right now” because he had to make a choice
between two conflicting obligations: either a speedy trial or obtaining a complete file, and he would
have also ended up at the wrong end of an ineffective assistance claim had he gone to trial and
missed a piece of evidence that would have been helpful.
Counsel stated that he discussed the possibility of filing a motion for release on personal
recognizance with defendant, but in his experience with that court, “you can file motions until hell
freezes over on a murder case for a PR bond and you’re not getting it under the statute or under
the court rule.” He further explained that a personal recognizance bond on a homicide charge was
generally unlikely, but “even more so specific to the court we were in.” He also noted that even if
the personal recognizance bond was granted, trial might be scheduled immediately, and he would
not feel prepared because of the outstanding discovery. He explained that his reasoning for not
insisting on a speedy trial was similar, and even if it put pressure on the prosecutor, he did not
believe it would change the prosecutor’s mind. Counsel agreed that in some cases, a defendant
would have a stronger bargaining position when out of custody, but “on a murder charge, I don’t
think it made any difference at all.”
Counsel agreed that the defense was always self-defense, and the evidence important to the
defense was the eyewitness testimony and what defendant had told him. Counsel agreed that
neither the firearms report nor the autopsy report were ultimately helpful to the self-defense
argument. Nevertheless, counsel opined that “to do a proper trial” he needed to have anything the
prosecutor intended to use as evidence, so he stipulated to the adjournments so the evidence could
be obtained. Counsel admitted that much of the evidence proved useless, but he stated that he
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would not have any way to know that it was not potentially exonerating until the results were back.
When counsel received the evidence of the phone call, he was initially concerned that it might be
harmful for impeachment purposes; the call turned out to be harmless, but it nevertheless took
some time to listen to it and discuss it with defendant. Counsel also noted that when the original
judge retired, the successor judge “got everybody’s unwanted files when she got on the bench,”
which resulted in several more adjournments.
Defendant testified that he was in his early fifties at the time of the shooting, he had no
legal training, and he had never previously been in jail. Defendant denied that counsel visited him
“even close” to 41 times, although when reminded that jails keep track of visits, he backtracked
and stated that counsel “would come see me for him to get paid, I guess for me to sign a paper like
every two weeks.” Defendant insisted that counsel never actually talked to him, particularly about
the prospect of having a right to a speedy trial or waiving that right. Defendant found the situation
unpleasant. Defendant trusted counsel at first, but eventually asked how he could get another
lawyer, only for counsel to tell him “it was too late.”. Defendant stated that he knew he was
charged with second-degree murder, but he did not recall being informed about what kind of
sentence or penalty was associated with the charge. He did not recall receiving a felony
information, other than later receiving a paper that only stated “habitual on it,” which defendant
found confusing. Defendant denied going over his PSIR with his attorney, but rather with a
probation officer. Nevertheless, he did go over it, and he agreed that it accurately stated that he
had two years of college. Defendant gave a confusing answer when asked whether he agreed that
he was found not guilty of second-degree murder, but eventually he agreed. Defendant recalled
participating in hearings by video four or five times and personally attended “probably about four”
hearings in person.
At the conclusion of the hearing, the trial court ruled from the bench that trial counsel had
not been ineffective. The trial court agreed with counsel’s assessment that a balancing act was
needed between invoking a speedy trial and risking missing helpful evidence. The trial court noted
that the originally assigned judge had a reputation for “the rocket docket,” so if a speedy trial
motion had been granted, trial would likely have been set for the very next day. The trial court
observed, “be careful what you wish for,” and concluded that it was not unreasonable for trial
counsel to have decided to wait for a complete file. The trial court observed that the Genesee
County courts were understaffed, a trial was ultimately held, and it was not persuaded that the
outcome of the trial would have been different. The matter then returned to this Court.
III. RIGHT TO A SPEEDY TRIAL
Defendant first argues that he was deprived of his right to a speedy trial. We disagree.
Whether a defendant has been deprived of his or her right to a speedy trial is a question of
constitutional law. People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). Ordinarily, it is
therefore reviewed de novo. People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).
However, defendant did not preserve this right by raising it in the trial court. See Cain, 238 Mich
App at 111. Unpreserved constitutional errors are reviewed for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999). Under that standard,
defendant must show that “clear or obvious” error occurred and that the error either affected the
outcome of the proceedings or seriously undermined the integrity of the proceedings. Id. at 763-
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764. Whether a defendant’s right to a speedy trial has been violated turns on a “four-part balancing
test articulated in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972),” under
which the courts must “consider (1) the length of the delay, (2) the reasons for the delay, (3) the
defendant’s assertion of the right, and (4) prejudice to the defendant.” Cain, 238 Mich App at 112
(quotation omitted).
A. LENGTH OF THE DELAY
A delay of more than 18 months “is presumed prejudicial and places a burden on the
prosecutor to rebut that presumption.” Cain, 238 Mich App at 112. Furthermore, the length of a
delay must be considered in light of the circumstances of the case and the seriousness of the crime.
People v Collins, 388 Mich 680, 688-690; 202 NW2d 769 (1972). The length of the delay, by
itself, will not require reversal. People v Simpson, 207 Mich App 560, 564; 526 NW2d 33 (1994).
Rather, a delay in excess of the 18-month period “triggers an inquiry into the other factors to be
considered in the balancing of the competing interests to determine whether a defendant has been
deprived of the right to a speedy trial.” People v Wickham, 200 Mich App 106, 109; 503 NW2d
701 (1993). The presumptive prejudice from a lengthy delay cannot, standing alone, establish a
deprivation of the right to a speedy trial, although the longer the delay, the more serious its concern.
Doggett v United States, 505 US 647, 655-656; 112 S Ct 2686; 120 L Ed 2d 520 (1992). There is
no dispute that the delay in this matter of almost 23 months triggers consideration of the other
factors. Nevertheless, in Cain, a delay of 27 months was held not dispositive by itself. Cain, 238
Mich App at 112-113.
B. REASONS FOR THE DELAY
The United States Supreme Court explained that “different weights should be assigned to
different reasons.” Barker, 407 US at 531. Deliberate delaying tactics by the prosecution would
weigh heavily against the prosecution, id., but, as defendant expressly concedes, there is no
indication here of any such tactics. Conversely, missing witnesses or an unexpected illness of an
officer in charge are examples of valid reasons that can justify delays. Id. at 531, 533-534.
Reasons “such as negligence or overcrowded courts should be weighed less heavily but
nevertheless should be considered since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.” Id. Some delays may also be attributable
to a defendant; for example, where a defendant requests an adjournment or where time is expended
adjudicating defense motions, Cain, 238 Mich App at 113; or where the defense delays trial as a
tactical gambit, Barker, 407 US at 534-536. Defendant contends that all but perhaps one of the
delays in this matter were for “neutral” reasons but nonetheless attributable to the prosecution. We
disagree.
The hearing transcripts indicate that many of the delays were attributable to the various
forensic testing facilities rather than to the prosecutor. Nevertheless, defendant correctly states
that those delays were not attributable to him, and although of “neutral” character, should be
attributed to the government. However, defense counsel stipulated to one adjournment based on
a longstanding, previously-established personal conflict by the prosecutor. The possibility of a
plea agreement was discussed at numerous hearings, and on several occasions defense counsel
explicitly requested or agreed to adjournments for the purpose of conducting plea negotiations. As
defendant concedes, there was one delay seemingly due to defense counsel’s conflict. Some kind
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of delay occurred due to newly-created evidence of a phone call placed by defendant, even though
that evidence ultimately proved irrelevant. Defense counsel also agreed that an overlooked bullet
should be tested, which would take some additional time. Finally, counsel’s strategy was to ensure
a complete record so that no potentially exonerating evidence was missed. Irrespective of whether
that was a sound strategy, it is clear that many of the adjournments were either attributable to
defendant or, minimally, expressly agreed to by defendant. Acquiescence by a defendant will
extenuate delays caused by the government. Doggett, 505 US at 658. On balance, the reasons for
the various delays do not clearly favor either the defense or the prosecution.
C. ASSERTION OF THE RIGHT
There is no dispute that defendant did not assert his right to a speedy trial. Although this
does not forfeit the right, and defendant argues that it was an unsound trial strategy, his failure to
assert the right nevertheless weighs against him. Collins, 388 Mich at 693-694.
D. PREJUDICE TO DEFENDANT
“There are two types of prejudice which a defendant may experience, that is, prejudice to
his person and prejudice to his defense.” Collins, 388 Mich at 694. The latter is because one of
the purposes of the right to a speedy trial is to “ensure[] that a guilty verdict results only from a
valid foundation in fact.” Cain, 238 Mich App at 111. Many of the delays in this matter were for
the purposes of adducing all of the evidence. Defendant points out that it is difficult to see how,
given the nature of the theory of the defense, any additional evidence could possibly have been
expected to help. Nevertheless, none of the additional evidence harmed the defense: it merely
established facts that were not actually in dispute. There was no deterioration of exonerating
evidence in the meantime, and the only helpful evidence—the testimony from the sole
eyewitness—was not lost. Although there was briefly an apparent risk that damaging
impeachment evidence was uncovered, that evidence turned out to be irrelevant. Defendant
continued to expect to testify until the very last moment, before apparently having personal second
thoughts. Because there was no evidence defendant could have apparently personally helped
uncover, it is highly unlikely that his ability to help prepare the case was hindered. See Collins,
388 Mich at 694. There is no hint in this record that the delay hindered defendant’s defense in any
way. Cain, 238 Mich App at 114.
However, prejudice also includes “oppressive pretrial incarceration” and “anxiety and
concern of the accused.” Barker, 407 US at 532. Regarding the former, defendant did receive
credit for the entire time he spent in custody. As trial counsel testified at the evidentiary hearing,
defendant’s best-case scenario would still have involved being convicted of a felony, and it was
extremely unlikely he would have been released on any kind of bond. In other words, there was
really no possibility defendant would not have spent that time in custody under any circumstances.
It does not appear that defendant was subjected to public scorn, deprivation of employment, or an
inability to participate in political causes. See Barker, 407 US at 532 n 33. We therefore conclude
that defendant’s pretrial incarceration would not qualify as “oppressive.”
Defendant testified that he found the experience of sitting in jail and waiting unpleasant
and traumatic. As a matter of everyday experience, uncertainty alone is stressful. Furthermore,
the United States Supreme Court has recognized that jails are often more unpleasant than prisons,
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being relatively lacking in “recreational or rehabilitative programs,” so “time spent in jail is simply
dead time.” Barker, 407 US at 532-533. We therefore believe that prejudice in the form of
“anxiety and concern of the accused” has been established.
E. BALANCING AND CONCLUSION
The delay of almost 23 months triggers the requirement to consider whether the delay in
bringing defendant to trial caused him prejudice. Defendant suffered some prejudice to his person,
which weighs in favor of a finding that his right to a speedy trial was violated. However, he
suffered no prejudice to his actual defense, nor did he spend any time in custody that would not
have inevitably been spent there, under even the most optimistic scenario. Many of the delays
were attributable to the government, although they were largely neutral in character, but many of
the delays were agreed to by defense counsel for strategic reasons or otherwise attributable to the
defense. The absence of an assertion of the right to a speedy trial weighs against a finding that
defendant was prejudiced. Ultimately, we conclude that given the seriousness of the charges, the
neutral character of the delays and their acquiescence by defense counsel, the fact that defendant
did not suffer any excess incarceration, and the total absence of any prejudice to the defense, the
balance favors a finding that defendant was not deprived of his right to a speedy trial.
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was deprived of the effective assistance of counsel because
trial counsel had no sound strategic reason for acquiescing in the numerous delays, and trial
counsel should have sought defendant’s release on his own recognizance pursuant to MCR
6.004(C). We disagree.
Defendant preserved his claim of ineffective assistance of counsel by moving in this Court
for a remand for an evidentiary hearing. See People v Moore, 493 Mich 933, 933; 825 NW2d 580
(2013). “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A
trial court’s findings of fact are reviewed for clear error and questions of law are reviewed de novo.
Id. “To find that a defendant's right to effective assistance of counsel was so undermined that it
justifies reversal of an otherwise valid conviction, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness, and that the representation so
prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 338;
521 NW2d 797 (1994), adopting the standard from Strickland v Washington, 466 US 668; 104 S
Ct 2052; 80 L Ed 2d 674 (1984). The appropriate test for prejudice is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 US at 694. “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” People v Eisen, 296
Mich App 326, 329; 820 NW2d 229 (2012) (citation and quotation marks omitted). “Defendant
must overcome the strong presumption that counsel’s performance was sound trial strategy.”
People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). “[T]rial counsel cannot be
faulted for failing to raise an objection or motion that would have been futile.” People v Fike, 228
Mich App 178, 182; 577 NW2d 903 (1998).
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A. PERSONAL RECOGNIZANCE BOND
Pursuant to MCR 6.004(C), in relevant part:
In a felony case in which the defendant has been incarcerated for a period of 180
days or more to answer for the same crime or a crime based on the same conduct
or arising from the same criminal episode . . . the defendant must be released on
personal recognizance, unless the court finds by clear and convincing evidence that
the defendant is likely either to fail to appear for future proceedings or to present a
danger to any other person or the community.
The rule goes on to specify certain events to exclude from computing the 180-day period, but we
presume the rule became effective to defendant on January 23, 2018. Nevertheless, trial counsel
explained at the evidentiary hearing that because defendant was charged with a homicide offense,
it was highly unlikely that a personal recognizance bond would be granted, and it was even more
unlikely in that particular court. We agree. Defendant was denied bond entirely for the homicide
charge from the outset. It is simply not plausible that any such release on defendant’s personal
recognizance would have been granted, given both the homicide charge and the felon-in-
possession charge. Trial counsel was not ineffective for failing to seek a release on defendant’s
personal recognizance pursuant to MCR 6.004(C), because doing so would have been obviously
futile. Fike, 228 Mich App at 182. At a minimum, trial counsel’s decision not to pursue such a
motion cannot be below an objective standard of reasonableness because it was reasonable to
believe that it would never be granted.
B. INVOCATION OF RIGHT TO SPEEDY TRIAL
Whether counsel was ineffective for failing to invoke defendant’s right to a speedy trial is
a closer question. Counsel’s reasoning was that he knew he had to choose between either (1)
invoking the right to a speedy trial, or (2) taking a risk that he was missing a piece of exonerating
evidence. In general, erring on the side of completeness does not seem unsound. Defendant makes
a reasonable argument that no facts were disputed, the defense was always self-defense, and the
defense turned almost entirely on the testimony of a single eyewitness; therefore, nothing helpful
to the defense could possibly have ever been outstanding. However, counsel’s decisions must not
be evaluated with the benefit of hindsight, and counsel is obligated to conduct a reasonably
complete investigation. People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004).
Importantly, each time defense counsel acquiesced to any given adjournment, it would
have been impossible to predict that more delays would occur. In contrast, counsel did know that
defendant would be incarcerated for that time even under the best-case scenario. Without the
benefit of hindsight, the trial court’s observation of “be careful what you wish for” does not seem
clearly erroneous. Even if it later turned out that none of the outstanding evidence was helpful,
defendant was not going anywhere, so it was not unreasonable to ensure that the evidence was
complete. Furthermore, some of the delays were because defendant and the prosecution were
continuing to negotiate a plea agreement, which counsel opined would not have been benefitted
by insisting on the right to a speedy trial. Rather, as the trial judge observed, trial would have
simply been scheduled for the next day, ready or not—and counsel believed he was not.
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Defendant presents a difficult to understand argument that the trial court should not have
considered whether defendant was prejudiced under Strickland, but rather whether defendant was
prejudiced under Doggett. As noted, under Strickland, one of the prongs for establishing
ineffective assistance of counsel is showing a reasonable probability that the outcome of the
proceedings would have differed. Strickland, 466 US at 694. Defendant points out that in Doggett,
the United States Supreme Court indicated that sufficiently egregious delays caused by
government negligence may, alone, establish a deprivation of the right to a speedy trial, unless
“extenuated” or “persuasively rebutted.” Doggett, 505 US at 657-658. However, we have already
determined that defendant was not deprived of his right to a speedy trial. The analysis in Doggett
would be relevant to that question, and notably, the delay in that case was six years of totally
unexcused negligence by the government. Id. In contrast, Strickland sets forth the appropriate
standard for determining whether a defendant was deprived of the right to effective assistance of
counsel.
At the remand hearing, it appeared to have been tacitly agreed that if trial counsel had
brought a speedy trial motion, the motion would have been granted. However, doing so would
have gained no tactical or other practical advantage for the defense, and doing so would not have
hampered the prosecution or induced the prosecution to extend a better plea offer. The only
arguable benefit would have been defendant spending a different proportion of his time in prison
instead of in jail. If counsel invoked the right to a speedy trial before discovery was complete,
defendant would have risked the possibility of missing exonerating evidence. Invoking the right
to a speedy trial during plea negotiations would have simply terminated those negotiations. By
the time the eighteen-month “presumptive prejudice” period ran, there were serious scheduling
conflicts due to the replacement of the trial judge and an upcoming complex case. Shortly
thereafter the final trial date—on which trial was actually commenced—was set. Therefore, we
do not think defendant has established that invoking the right to a speedy trial would have achieved
anything. In any event, defendant has not overcome the burden of proving counsel’s strategy to
have been objectively unreasonable under the circumstances.
Affirmed.
/s/ Kathleen Jansen
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
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