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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 21, 2017

v No. 329900 Newaygo Circuit Court DANIEL JAY WEAVER, LC No. 15-011046-FH

Defendant-Appellant.

Before: M URPHY , P.J., and S AWYER and S WARTZLE , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury-trial convictions of op erating a motor vehicle without a valid license, second or subsequent offense, MCL 257. 904(3)(b), third-degree fleeing and eluding, MCL 257.602a(3), and resisting and obstructing a p olice officer, MCL 750.81d(1).

The trial court sentenced defenda nt as a fourth-offense habitua l offender, MCL 769.12, to one year incarceration for his moto r vehicle conviction, to 46 mont hs to 40 years’ imprisonment for the fleeing and eluding convicti on, and to 46 months to 15 year s in prison for the resisting and obstructing conviction. The trial court ordered defendant to s erve these sentences concurrently, but, because he committed the offenses while out on bond pendin g charges in a drunk driving case, the court ordered him to serve his sentences in this case consecutive to his sentences in the drunk driving case. We affirm.

In January 2015, defendant was arrested and charged with opera ting a motor vehicle while under the influence of intoxicating liquor, third offense , and operating a motor vehicle while his license was suspended, revoked, or denied, second or subsequent offense. The trial

court released defendant on bond while he awaited trial on the charges. In March 2015, defendant was operating a pickup truck with tinted windows whena state trooper attempted to pull him over. Defendant did not slow down and a pursuit took place, with defendant eventually driving into a wooded area. The pickup truck became stuck, and the trooper, who had parked his

cruiser outside of the wooded ar ea, ran up to the truck. The t rooper smashed his flashlight against a window in the truck, creating holes sufficient for th e trooper to see the driver. Defendant then hit the accelerator, pulled out of the mire, and was able to escape in the truck. Defendant, however, was subsequently apprehended, and the troop er identified defendant as the operator of the pickup truck t hat the trooper had pursued.-2- On June 9, 2015, there was a hearing that encompassed both of the criminal cases against defendant, which we shall refer to as the “drunk driving case” and the “fleeing and eluding case.” The hearing entailed an arraignm ent relative to the fleeing and eluding case and, apparently, a status conference with respect to the drunk driving case. The trial court noted that trial was scheduled for July 29, 2015, in the drunk driving case, which w as to be presided over by another circuit court judge, as the tri al court would not be available at that time. Defendant’s appointed counsel, who represented defendant in both cases, informed the trial court that the prosecution had made plea offers in the two cases, both of which defendant rejected, desiring instead to go to trial. Defendant personally confirmed his position on the pleaoffers. Defendant then expressed

that he had asked counsel to file two motions in the drunk driv ing case, but she refused. Defendant’s attorney responded by indicating that she had told defendant on multiple occasions that there was no legal basis for the motions. Counsel furthe r stated that she could not file the motions in good faith. Defendant then began arguing that a pol ice car video in the drunk driving case showed that there was no pr obable cause to pull defendant over and that defendant had not been read his chemical test rights. The trial court observed t hat appointed counsel was not defendant’s slave and had no obligation to file frivolous motio ns. The court stated that defendant was free to hire an attorney who could bring the motions, but d efendant replied t hat he lacked the

funds to do so. Defense counsel then indicated that she was wi lling to discuss the matter further with defendant. The trial court noted that counsel was a “long time” attorney who knew “criminal law pretty well.” Defendant next stated that he wish ed to sit down with his attorney to review the video for purposes of the drunk driving case, at whi ch point counsel asserted that the video was extremely long and that she had given a copy of the v ideo to defendant two months earlier. The hearing then concluded.

On July 17, 2015, in the drunk driving case, defendant’s attorney filed a motion to suppress the search and dismiss the charges, along with a motio n in limine to exclude prior convictions and testimony concerni ng the preliminary breath tes t. On July 29, 2015, the scheduled day of trial in the drunk driving case, the circuit c ourt granted the motion in limine, but denied the motion to suppress and dismiss, prompting defend ant to enter a guilty plea that day. At the end of the plea h earing, the circuit court pointed out to defendant that his attorney had done a fine job advocating for defendant, but the circumsta nces were “basically beyond her control.” Defendant responded, “ Yes, sir, I realize that now.” 1

On August 10, 2015, at a pretrial conference relative to the f leeing and eluding case, the prosecutor set forth a plea offer that had been made, and defen se counsel indicated that, despite

her recommendation to the contra ry, defendant rejected the offe r. Defendant personally expressed that he did not participate in the alleged offenses; therefore, he would not plead guilty. Defendant then stated that he wished to discharge counsel, as s he had never given him a chance to defend himself and just wanted him to plead guilty. The tri al court noted that defendant had voiced these complaints about counsel in the drunk driving case , but then he pleaded guilty. The

1 The circuit court judge who ruled on the motions and accepted defendant’s guilty plea in the drunk driving case is not the cir cuit court judge who handled t he proceedings in the fleeing and eluding case; we have been and will continue referring to that judge as the “trial court.”-3- court observed that defendant was “just unreasonable.” The tri al court firmly ruled that it would not be appointing defendant a new attorney and that defendant w as simply attempting to waste taxpayer money. Defendant then began complaining about the pol ice car video from the drunk driving case and how defense coun sel had failed to go over the video with him, resulting in defendant being blind-sided by the video. Defense counsel adam antly informed the trial court that defendant had been given the video, that defendant indicat ed that he had reviewed it, and

that she had talked to defendant in preparation of the trial, w hich never came to fruition. Defendant expressed that counsel d id not represent him and that she was trying to have him plead guilty for crimes he did not commit. The trial court opi ned that defendant was very difficult to deal with and that any newly-appointed substitute counsel would run into the same problems with defendant that ex isted between defendant and curr ent counsel. The trial court observed that appointed counsel w as a competent attorney and th at it was rare to receive complaints about her performance.

At a hearing on August 24, 2015, a couple of days before trial , defendant’s attorney

informed the trial court that defendant had told her several ti mes that he now wanted to represent himself at the upcoming trial. The trial court asked defendantif that was how he wished to proceed, and defendant responded, “I was hoping for another law yer, but you denied me that, so I’ll represent myself.” The court advised him that he should a llow appointed counsel to continue representing him, as defendant did not have the training and ex perience that counsel had in the

law. The trial court also advised defendant that it would be a serious mistake for him to represent himself and that counsel had handled many trials. De spite the court’s warnings, defendant expressly indicated that he wished to represent himse lf at trial. The trial court

revisited the issue concerning defendant’ s request for substitu te counsel, touching on memories it had in handling part of the drunk driving case, along with info rmation gleaned from reviewing the transcripts in that case. T he court noted that defendant h ad complained at length about counsel in the drunk driving case, yet defendant ended up plead ing guilty and then essentially conceded that counsel had performed well. The trial court reit erated, “I believe that no matter who I appoint for you, you would be unhappy.” The court direct ed appointed counsel to be present at trial to operate as standby counsel, so as to be ava ilable to defendant for any requested assistance, although the court emphasized its view that the bet ter course of action for defendant would be to allow counsel to simply conduct the trial. Defenda nt was in agreement with the standby arrangement.

On the day of trial, August 26, 2015, the trial court again ad vised defendant that there were big risks to representing himself, including a “lack of kn owledge of the law and procedure” and an emotional entanglement that might prevent the exercise o f objective and good judgment.

The trial court noted that it had informed defendant of the dan gers of self-representation at the prior proceeding. The court observed that if you have a medica l problem, you go to a doctor, “and if you have a legal problem you seek a lawyer.” The court as much as pleaded with defendant to allow counsel to conduct the trial, while acknowle dging that defendant had the constitutional rightto represent himself. The following collo quy then occurred:

The court . [H]aving said all that, is it still your wish to proceed
to represent yourse lf during the trial?

The defendant . Yes, sir.-4- The trial court next i nformed defendant of the charges against him and the maximum punishment for each offense, warning him that a conviction might result in consecutive sentences, given that defendant was out on bond when the charged crimes took place. The court asked defendant if he understood the charges and the ma ximum penalties, and defendant replied, “Yes, sir.” The trial court next discussed the latest plea offer made by the prosecut ion, obtaining defendant’s confirmation that defendant was rejecting the offer. The jury trial was then conducted, and defendant was found guilty as charged. He now appeals as of ri ght.

Defendant first argues that the trial court erred when it all owed him to represent himself at trial. Specifically, he contends that the trial court did n ot substantially comply with the requirements of MCR 6.005 and our Supreme Court’s decision in People v Anderson , 398 Mich 361; 247 NW2d 857 (1976), with respect to self-representation a nd waiver of the right to

counsel. This Court reviews th e trial court’s factual findings underlying a defendant’s waiver of the right to counsel for clear error. People v Russell , 471 Mich 182, 187; 684 NW2d 745 (2004). “However, to the extent that a r uling involves an interpretatio n of the law or the application of a

constitutional standard to uncont ested facts, our review is de novo.” Id. (citations omitted).

“The Sixth Amendment of the United States Constitution, made a pplicable to the states through the Due Process Clause of the Fourteenth Amendment, pro vides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his

defence.’ ” People v Kammeraad , 307 Mich App 98, 122; 858 NW2d 490 (2014) (citation omitted; alteration and ellipsis in original). “The analogous provision of the Michigan Constitution provides that ‘[i]n every criminal prosecution, th e accused shall have the right to . . .

have the assistance of counsel f or his or her defense[.]’ ” Id. , quoting Const 1963, art 1, § 20 (alterations and ellipsis in original).

“The right of self-representation is secured by both the Michi gan Constitution, Const 1963, art 1, § 13, and by statute, MCL 763.1.” People v Dunigan , 299 Mich App 579, 587; 831 NW2d 243 (2013). “The right of self-representation is also imp licitly guaranteed by the Sixth

Amendment of the United States Constitution.” Id. “[A]lthough the right to counsel and the right of self-representation ar e both fundamental constitutiona l rights, representation by counsel, as guarantor of a fair trial, ‘ is the standard, not the excepti on,’ in the absence of a proper waiver.”

Russell , 471 Mich at 189-190 (citations omitted). The Russell Court reviewed its earlier decision

in Anderson and MCR 6.005(D), observing:

In People v Anderson, this Court applied the . . . standard for selfrepresentation and established re quirements regarding the judic ial inquest necessary to effectuate a valid waiver and permit a defendant t o represent himself. Upon a defendant's initial request to proceed pro se, a court m ust determine that (1) the defendant's request is unequivocal, (2) the defendant i s asserting his right knowingly, intelligently, and voluntarily through a colloquy ad vising the defendant of the dangers and disa dvantages of self-representati on, and (3) the defendant's self-representation will not disrupt, unduly inconv enience, and burden

the court and the administra tion of the court's business.

In addition, a trial court must s atisfy the requirements of MC R 6.005(D), which provides in pertinent part as follows:-5- “The court may not permit the defendant to make an initial wai ver of the right to be represented by alawyer without first

(1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence requir ed by law, and

the risk involved in sel f-representation, and

(2) offering the defendant the opportunity to consult with a r etained lawyer or, if the defendant is indigent, the opportunity to con sult with an appointed lawyer.”

In [ People v ] Adkins [ (After Remand) ], [452 Mich 702; 551 NW2d 108 (1996),] this Court clarified th e scope of judicial inquiry req uired by Anderson and MCR 6.005(D) when confronted with an initial request for s elfrepresentation. Adkins rejected a “litany approach ” in favor of a “substantial compliance” standard[.] [ Russell , 471 Mich at 190-191 (citations omitted). 2 ]

First, we reject defendant’s argument that his request for se lf-representation was not unequivocal. Although initially defendant portrayed the situat ion as if the court had effectively forced defendant to represent hi mself by not allowing a substit ution of appointed counsel, subsequently, as indicated in our recitation of the facts, he u nequivocally communicated to the court that he wished to represent himself. Moreover, the trial court’s mere denial of defendant’s request for substitute counsel cannot be viewed as a ruling tha t improperly deprived defendant of the freedom to choose how he wished to proceed relative to repr esentation. Later in this opinion,

we affirm the trial court’s denial of substitute counsel. Defe ndant’s effort to comp are this case to

Russell is entirely misplaced, given that in Russell , the “defendant clearly and unequivocally

declined self-representation.” Russell , 471 Mich at 184 (emphasis added). Here, defendant never declined self-representa tion; rather, he s pecifically req uested self-representation.

Defendant also contends that an effective waiver of the right to counsel was not obtained at the hearing conducted two days before trial, given that the trial court did not engage in any dialogue to determine whether de fendant was asserting his right of self-representation knowingly, intelligently, and voluntarily, that the court did n ot ascertain whether defendant would disrupt or unduly inconvenience the court by representing himself, that the court failed to

2 MCR 6.005(E) provides in relevant part:

If a defendant has waived the assistance of a lawyer, the reco rd of each subsequent proceeding . . . need show only that the court advis ed the defendant of the continuing right to a lawye r's assistance (at public expens e if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer's assistance is not wanted[.]-6- inform defendant of the charges and the maximum possible prisonsentences, that the court did not detail the specific risks of self-representation, and that the court failed to expressly find that defendant fully understood, rec ognized, and agreed to abide by the procedures for waiver of the right to counsel. We shall proceed on the assumption that the trial court did not obtain a valid invocation of self-representati on and waiver of the right to co unsel at the hearing two days before trial. Instead, we will focus our attention on the day of trial.

Defendant maintains that the record of the trial reveals that the court also failed to obtain a valid invocation of self-representation and waiver of the rig ht to counsel at that time. Defendant argues that the trial c ourt failed to advise him that he had a continui ng right to counsel at public expense for purposes of MCR 6.005(E), that the court failed to specify the risks involved with self-representati on, that the court did not ascer tain whether defendant would disrupt or unduly inconvenience the court by representing himse lf, and that the court failed to expressly find that defendant f ully understood, recognized, and agreed to abide by the procedures for waiver of the right to counsel.

With respect to defendant’s ar gument that the trial court fail ed to advise him that he had a continuing right to counsel at public expense for purposes of M CR 6.005(E) (see our footnote 2), the court rule pertains to situations in which a defendant effe ctively waives the assistance of a lawyer and then finds himself or herself at a subsequent hearin g; we, however, are assessing

whether an effective waiver occu rred on the day of trial. More over, given the history of the case, defendant was well-aware of the fact that he had a right to counsel. Indeed, defendant exercised that right earlier by accepting the services of appointed couns el and attempted to e xercise it again when requesting a substitute attorney. At the trial, the court sought to convince defendant to have his now standby counsel try the case, while hesitantly exp ressing to defendant that he did have the right to represent himself if that was the course he w ished to take. The trial court thus effectively communicated to defe ndant that he had a right to co unsel.

Next, contrary to defendant’s argument, the trial court adequa tely informed defendant of the risks involved in self-repr esentation, warning him that he lacked knowledge of the law and procedure, that an attorney is the person best suited to handle legal problems, and that emotional entanglements associated with self-representation can distract one from exercising sound judgment. The court also noted that it had previously warned d efendant of the risks of selfrepresentation. 3 Under these circumstances, we hold that defendant knowingly, intelligently, and voluntarily asserted his right of self-representation. Russell , 471 Mich at 190. Further, as required by MCR 6.005(D), the tri al court advised defendant of the charges and the maximum possible prison sentences, along with affording defendant the o pportunity to consult with an attorney regarding waiver of the right to counsel. It was defe ndant’s attorney who first indicated that defendant wished to represent himself, and she was present at the trial and available to

defendant for consultation.

3 At the hearing on August 24, 2015, the trial court warned defe ndant that “you need to be mindful of the fact that . . . the law is a complicated field, and a lawyer is required to have years of law school education [and] pass a bar exam.”-7- Additionally, although the trial court did not expressly determine that defendant would not disrupt or unduly inconvenience the court by representing h imself, we fail to see the relevancy of this factor, consid ering that the court allowed de fendant to represent himself, thereby suggesting that the court had no real concerns about de fendant’s behavior. The trial court had previously opined that defendant is “reasonably intel ligent.” An implicit assertion in defendant’s challenge regarding t his factor is that he indeed s hould have been viewed by the court as a person who would di srupt or unduly inconvenience the court by self-r epresentation.

But defendant fails to contend th at, during the trial, he actua lly was disruptive or that he unduly

inconvenienced the court. And th e record does not support a co nclusion that the trial court should have found defendant potentially disruptive or a potenti al undue inconvenience, such that he should not have been permitted to represent himself.

Finally, we address defendant’s contention that the court fail ed to expressly find that defendant fully understood, rec ognized, and agreed to abide by the procedures for waiver of the right to counsel. This requirement comes from language in Russell , 471 Mich at 191. It is plain

to us that the trial court conclu ded that defendant fully under stood, recognized, and agreed to abide by the waiver of counsel procedures. The court asked def endant several times if he understood the information related to waiver and self-represent ation given to him by the court, and defendant always responded in the affirmative. Although th e trial court did not make an “express” finding, the court othe rwise substantially complied w ith Anderson and MCR 6.005(D), and reversal is unwarranted for this singular failure. See People v Campbell , __ Mich App __, __; __ NW2d __ (2016); slip op at 4 (holding that a court’s sim ilar failure did not warrant reversal).

Defendant next argues that the trial court abused its discreti on when it denied his request

for substitute counsel. This Court reviews a trial court’s dec ision on a defendant’s motion for the appointment of substitute counsel for an abuse of discretion. People v McFall , 309 Mich App 377, 382; 873 NW2d 112 (2015). In McFall , this Court recited the applicable principles regarding substitution of appointed counsel:

An indigent defendant is guara nteed the right to counsel; howe ver, he is not entitled to have the attorney of his choice appointed simpl y by requesting that the attorney originally appointed be replaced. Substitution of counsel is warranted only upon a showing of good cause and where substitution will n ot unreasonably disrupt the judicial process. Good cause may exist when a legit imate difference of opinion develops between a defe ndant and his appointed counsel as to a fundamental trial tactic, when there is a destruction of commun ication and a breakdown in the attorney-client relationship, or when counse l shows a lack of diligence or interest. A mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a s ubstantial reason, does not amo unt to adequate cause. Likewise, a defendant's g eneral unhappiness with counsel 's representation is insufficient. [ McFall , 309 Mich App at 382-383 (citations and quotation marks omitted).]

Defendant maintains that there were irreconcilable differences between counsel and defendant concerning fundamental t rial tactics and that there w as a breakdown in the attorneyclient relationship. Defendant sets forth five specific ground s in support of his argument. First,-8- defendant points to the disagreement below over whether to file certain motions. These motions pertained to the drunk driving case. We fail to see how a disa greement regarding the filing of

motions in a separate and distinct case establishes a legitimate difference of opinion on

fundamental trial tactics in a different case . The argument is meritless. To the extent that defendant relies on the dispute regarding the motions in the dr unk driving case to show a general breakdown of the attorney-client relationship so as to also imp act the fleeing and eluding case, the argument is not persuasive, given that counsel agreed to wo rk with defendant and then actually filed the motions. T his ground did not merit appointm ent of substitute counsel.

Second, defendant relies on his assertion below that he begged counsel to review the evidence with him as he sat in jail. Scrutinizing the transcri pt page cited by defendant in support of this argument, it is clear that defendant at the pretrial he aring on August 10, 2015, was referring to the police car vide o. Again, this evidence arose out of the drunk driving case, not the relevant fleeing and eluding cas e. Furthermore, defendant ulti mately conceded during his plea that counsel had done a fine job advocating for defendant in th e drunk driving case. Accordingly, we cannot conclude that counsel’s performance in the drunk driving case serves as a legitimate basis to show a breakdown in the attorney-client r elationship for purposes of the fleeing and eluding case. This ground did not merit appointmen t of substitute counsel.

Third, defendant points to his claim below that counsel failed to review the evidence with him. Checking the transcript citation of the pretrial hearing proffered by defendant, we find, once again, that this argument p ertained to the drunk driving c ase. Therefore, it fails for the reasons enunciated in the preceding paragraph. This ground did not merit appointment of

substitute counsel.

Fourth, defendant cites his com plaint below that counsel faile d to obtain the evidence that he needed, which he could not do on his own given his incarcera tion. Examining the transcript pages of the pretrial hearing cited in support of defendant’s a rgument, the court had just informed defendant that he was headed back to jail and that cou nsel would do the best she could on his behalf when defendant asked, “What about the evidence I need to accumulate, Your Honor?” The trial court replied that counsel would take care o f the matter. There is nothing in the transcript remotely suggesting that counsel had failed to o btain pertinent evidence or that defendant even accused counsel of failing to do so. This groun d did not merit appointment of

substitute counsel.

Fifth, defendant refers to his complaints below that counsel n ever discussed the merits of the case with him and simply wanted him to plead guilty. Merel y recommending acceptance of a plea offer, which recommendation, in hindsight, defendant shoul d have followed, did not warrant

substitution of counsel. At tria l, defendant stated that he wanted counsel to sit nearby, as he was “counting on her” for assistance, belying any claim of a breakd own in the attorney-client relationship. Also, comments mad e by counsel at the trial indi cated that she was very familiar

with the case and that she had discussed the case with defendan t, including in regard to the subject of whether defendant s hould take the stand. We find th at defendant’s complaints essentially reflected nothing mo re than a general unhappiness w ith counsel's representation. This ground did not merit appointment of substitute counsel.-9- Additionally, the trial court was clearly frustrated with defe ndant, noting several times that defendant would have the same problems and issues with anysubstitute attorney. The court effectively found that defendant was engaging in gamesmanship. 4 We conclude that the record fully supports the trial court’s vi ew. Moreover, contrary to d efendant’s argument, defendant never voiced any sound and speci fic ground in support of substi tution of counsel that would have necessitated an evidentiary hear ing. In sum, defendant fails t o show that good cause existed for the appointment of substitute counsel, and the trial court did not abuse its discretion in denying defendant’s request for a new attorney.

Defendant next argues that the prosecutor violated his right t o due process by repeatedly drawing attention to defe ndant’s post-arrest, post- Miranda 5 silence in both his opening statement and closing argument, as well as during the direct examination of the police officer who had pursued defendant. We review de novo issues of constitutional law. People v Shafier , 483 Mich 205, 211; 768 NW2d 305 (2009). Because defendant did not objec t to the prosecutor’s questions or his opening and closing comments, we review defendant’s argu ment for plain error affecting his substantial rights. Id. ; People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

In Shafier , 483 Mich at 212-213, our Supreme Court recited the governing principles pertinent to defendant’s argument:

The United States Constitution guarantees that no person “shal l be compelled in any criminal case to be a witness against himself. ” US Const, Am V.

Miranda . . . established guidelines for law enforcement agencies and c ourts to follow in order to protect the privilege against compelled self -incrimination during custodial police interrogations. Thus, under Miranda , every person subject to interrogation while in poli ce custody must be warned, among other things, that the person may choose to remain silent in response to police qu estioning. As a general rule, if a person remain s silent after being arrested a nd given Miranda warnings, that silence may not be used as evidence against tha t person. Therefore, in general, pr osecutorial references to a de fendant's post-arrest,
post- Miranda silence violate a defendant's due process rights under the Fourteenth Amendment of the United States Constitution. [Citat ions and quotation marks omitted.]

The police officer testified that after defendant was arrested , he questioned defendant at the county jail after reading defendant his Miranda rights. The officer asserted that defendant claimed that “he was not the one driving the truck.” According to the officer, defendant stated that he had an alibi. The officer then testified, “he told me that he was not willing to provide me with any names or locations that he was at at the time.” The o fficer indicated that defendant informed him that defendant had no obligation to divulge the na ture of his alibi. Defendant then

4 We note that defendant waited until two weeks before the sched uled trial to ask for new

counsel.

5 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-10- asked whether the officer could g et the charges dropped if defe ndant gave him specifics regarding the alibi. The officer responded that he would first have to investigate the alibi, at which point defendant expressed that he needed an attorney. Th e interrogation then ceased. At trial, defendant presented a sp ecific alibi defense involving h is girlfriend and a former girlfriend. The prosecutor adamantly commented on defendant’s failure to te ll the officer these details during the interrogation and on de fendant’s affirmative stateme nt that he would not provide the officer with details, rendering unbelievable the alibi proffere d at trial. The prosecutor argued that defendant did not give the officer the particulars of the claimed alibi because defendant had not yet concocted the phony alibi th at was presented for the fi rst time at trial.

In Berghuis v Thompkins , 560 US 370, 381-382; 130 S Ct 2250; 176 L Ed 2d 1098 (2010), the United States Supreme Court held:

There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous

invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and . . . provides guidance to officers on how to proc eed in the face of ambiguity. If an ambiguous act, omission, or statement could re quire police to end the interrogation, police would be required to make difficult d ecisions about an accused's unclear intent and face the consequence of suppressio n if they guess wrong. Suppression of a voluntary confession in these circumsta nces would place a significant burden on society's interest in prosecuting crimi nal activity. Treating an ambiguous or equivocal act, omission, or statement as an inv ocation

of Miranda rights might add marginally to Miranda ’s goal of dispelling the compulsion inherent in cust odial interrogation. But as Miranda holds, full comprehension of the rights to remain silent and request an att orney are sufficient to dispel whatever coercion is inherent in the interrogation pr ocess.

Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simpl e, unambiguous statements, he would have invoked his right to cut off question ing. Here he did neither, so he did not invoke his right to remain silent. [Cit ations, quotation marks, and alteration brackets omitted; ellipsis in original.]

In the instant case, once defend ant validly waived his right t o remain silent by participating in the interrogation, the officer was permitted t o continue to interrogate defendant until defendant unambiguously asse rted his right to remain sile nt. Defendant simply did not invoke his right to remain silent and end the interrogation pri or to stating that he had an alibi and that he would not share the details of the alibi with police. Indeed, defendant thereafter continued to freely speak with t he officer, with the interrogat ion only ending when defendant later indicated that he needed a lawyer. Moreover, the officer ’s testimony and the prosecutor’s

remarks concerned defendant’s actual statements , not his mere silence. For that reason, the facts

are not similar to those in cases where the defendant’s silence had little or no probative value

because it occurred after the defendant received Miranda warnings and reflected nothing more than the exercise of the arrestee’s right to remain silent. Se e Doyle v Ohio , 426 US 610, 617- 618; 96 S Ct 2240; 49 L Ed 2d 91 (1976); see also Shafier , 483 Mich at 215-217 (relating that-11- the defendant made no statements when arrested and that the pro secutor relied on his silence in the face of the accusations against him as evidence).

Further, assuming plain error, we simply cannot conclude that defendant was prejudiced by the presumed error, i.e., “that the error affected the outco me of the lower court proceedings.”

Carines , 460 Mich at 763. Additionally, the assumed error did not res ult in the conviction of an actually innocent defendant or se riously affect the fairness, i ntegrity, or public reputation of the proceedings. Id. Reversal is unwarranted.

In defendant’s Standard 4 brief, he argues that he is entitled to a new trial because the trial court was biased against him, that the trial court active ly participated in the plea bargaining process and then punished him with a more severe sentence after he rejected the plea, that trial counsel was ineffective in numerous instances, and that the tri al court wrongfully revoked his bail and, thereafter, w rongfully refused to allow him to be rel eased on bail pending trial. After careful review, we re ject all of these fri volous arguments, giv en that they are wholly unsupported by the record and or the law, or would not justify reversal eve n if meritorious; nothing argued by defendant supports reversal of his convictions or sentences.

Affirmed.

/s/ William B. Murphy /s/ David H. Sawyer

/s/ Brock A. Swartzle