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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 8, 2016

v No. 323682 Wayne Circuit Court DARIO DONTEZ WRIGHT, LC No. 14-001796-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and C AVANAGH and S HAPIRO , JJ.

P ER C URIAM

. Defendant, Dario Dontez Wright , appeals by righ t his bench con victions of manslaughter, MCL 750.321, second-degree murder, MCL 750.317, possession of a firearm during the commission of a felony (fel ony-firearm), MCL 750.227b, and felo n in possession of a firearm, MCL 750.224f. The trial court acqu itted Wright of two counts o f first-degree murder. See MCL 750.316. The trial court sentenced Wright, as a fourth habitua l offender, MCL 769.12, to serve 4 to 15 years in prison for the voluntary manslaughter conviction , 25 to 50 years in prison for the second-degree murder conviction, two years in prison for the fe lony-firearm conviction, and to time served for the felon in po ssession of a firearm conviction . Because Wright has not established any errors warran ting a new trial, we affirm.

In December 2013, Gyuana Peterson lived with her grandmother a nd her grandmother’s boyfriend, Wright. Because she was angry with her grandmother, Peterson arranged to have the home burglarized. In the morn ing, Peterson stole multiple guns and brought them to the home of Fallon Green and Antoine Crum by. At around noon that same day, she returned to her grandmother’s home with Green. She asked Wright to help her pi ck out a part for her car so the house would be empty for Crumby to burglarize. Wright agreed t o help her and they left. Crumby broke into the home and st ole two televisi ons, a coat, a nd a duffel bag. Crumby brought the items back to his home whe re he met Green and Peterson.

Later that evening, Wright called Peterson and told her that h e knew she was involved in the burglary. He stated that she should come to the house to k iss her grandmother goodbye because he was going to kill her. Peterson eventually returned to the home accompanied by a police officer so she could remove some personal possessions. The officer advised Peterson not to return to the home that night. Nevertheless, Peterson retur ned later that night with Green, Crumby, and Green’s cousin Curtis Smith, in order to retrieve h er furniture.-2- After they arrived, Wright cam e out of the home and asked who was involved in the burglary. Wright went back in the home and returned with a lon g gun and two other armed men. Wright patted down Smith, at which point Smith slapped his hand away. Immediately after this, Wright turned towards Crumby and shot him in the head. As Smit h began to flee, Wright turned and shot him in the back. Wright then shot both men a second t ime. He was later seen driving away with Peterson’s grandmot her and the two other men.

Wright first argues that he di d not receive the effective assi stance of counsel. He maintains that his pretrial lawyer’s decision to have an incrim inating conversation with him while under surveillance amounted to ineffective assistance. T his error, he further maintains, was exacerbated by his trial lawyer’s failure to object to the admission of the recording. Finally, he contends that his trial lawy er deceived him into waiving his right to a j ury trial.

This Court reviews de novo whether a defendant’s lawyer’s acts or omissions amounted to ineffective assistance. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). Any findings of fact are reviewed for clear error. Id . Because the trial court did not hold a hearing on this issue, our review is limited to mistakes that are apparent on the record. People v Mack , 265 Mich App 122, 125; 695 NW2d 342 (2005). “The question whether the attorney-client privilege applies to a communication is a q uestion of law that this Court reviews de novo.” Leibel v Gen Motors Corp , 250 Mich App 229, 236; 646 NW2d 179 (2002).

In order to prevail on an ine ffective assistance of counsel cl aim, “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). “Because of the diffic ulties inherent in making the evaluation, a court must indulge a strong presumption that coun sel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (19 84). In order for the defenda nt to satisfy the prejudice prong of the analysis, “a court must conclude that there is ‘a reason able probability that, absent the errors, the factfinder would have had a reasonable doubt respec ting guilt.’ ” Pickens , 446 Mich at 312, quoting Strickland
, 466 US at 695.

Wright maintains that his first lawyer, Delicia A. Cain-Taylor Coleman, seriously erred when she advised him about what statements he should make to of ficers while they were in an interrogation room. Coleman s hould have recognized that they w ere under surveillance and, therefore, should have avoided engaging in a privileged, incrim inating conversation. An officer informed Coleman that she and Wright were being recorded before the officer left the room. Despite this, she elected to discuss with Wright how he should present his version of events, which gave rise to the inference that he was not being entirely truthful. Although a defendant must overcome the presumption th at his trial counsel’s performa nce derived from a sound trial strategy, “a court cannot insula te the review of counsel’s perf ormance by calling it trial strategy.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). There was nothing soun d or strategic about the decision to engage in a potentially incrimi nating conversation while clearly under surveillance. Because we can conceive of no legitimate s trategic reason for proceeding in that manner, we conclude that Coleman’s decision fell below an objective standard of reasonableness under prevai ling professional norms.-3- In order to prove prejudice, Wright must demonstrate a reasona ble probability that, but for his trial counsel’s errors, the result of the proceeding wo uld have been different. Strickland
, 466 US at 694. A reasonable probability is defined as “a proba bility sufficient to undermine confidence in the outcome.” Id

. The trial court’s findings dem onstrate that the conversation b etween Wright and Coleman did not influence its decision. Instead, the trial court state d that it relied on the testimony of multiple eyewitnesses to the crime as well as overwhelming phys ical evidence. The trial court noted that the shell casings f ound at the scene were consistent with the long gun that Wright was carrying at the time. In addition, the trial court stated that there were no shell casings from the handguns that Crumby and Smith were carrying, thus undermining Wright’s claim of selfdefense. The trial court also noted how Smith was shot in the back. Nowhere in the trial court’s findings did it state that it wa s relying at all on the convers ation at issue. On this record, we conclude that Wright’s lawyer’s deficient performance did not p rejudice his trial.

With regard to Wright’s claim that his trial lawyer, Susan Ree d, provided ineffective assistance by failing to object to the admission of the convers ation, Wright cannot demonstrate that his lawyer’s failure to obj ect fell below an objective sta ndard of reasonableness under prevailing professional norms. A defendant’s communication wit h his or her lawyer is generally privileged. MCL 767.5a(2). “The privilege exists to allow a c lient to confide in the attorney and be safe in the knowledge that th e communication will not be dis closed.” People v Compeau , 244 Mich App 595, 597; 625 NW2d 120 (2001). However, this Court ha s held that where the element of confidentiality is lack ing, a communication will not be privileged. Id . In Compeau
, the defendant communicated with his attorney while standing jus t a few feet away from a bailiff. Id . The Court held that by communicating in a public place while clearly under the scrutiny of the bailiff, the defendant “failed to take reasonable precautio ns to keep his remark confidential and thus the communicati on was not privileged.” Id . at 597-598.

As in Compeau , Wright failed to take reasonable precautions to keep his rema rks to Coleman confidential. Both Coleman and Wright were aware that they were under video surveillance. Despite that knowle dge, they chose to communicat e about how Wright would present his version of events to the officers. The element of confidentiality necessary for attorney-client privilege was not present here. Because attorn ey-client privilege did not apply, Reed cannot be faulted for failing to object on that basis. People v Thomas , 260 Mich App 450, 457; 678 NW2d 631 (2004) (“Counsel is no t ineffective for faili ng to make a futile objection.”).

Wright next argues that Reed should not have advised him to wa ive his right to a jury trial. In support of this argument, Wright averred that, after Reed initially advised him to waive his right to a jury trial, he told her that he wanted to hear w hat his family thought about the decision. According to Wright, just prior to his waiver before the trial court, Reed told him that his family agreed with her decision to seek a bench trial. It was only after he waived his right to a jury that he learned tha t his family did not approve.

As noted, our review is limited to mistakes that appear in the record. The record shows that the trial court complied with MCR 6.402(B), and ensured th at Wright’s waiver was knowingly and intelligently made. The trial court asked him if he understood that right and also asked him if he was promised, forced, coerced, or otherwise mad e to waive his right. Wright-4- responded that he was not and that he was waiving his right to a jury trial as a result of his own free will. The trial court accepted his waiver and specificall y found that it was made “knowingly, voluntarily, understa ndingly, and intelligently.” Although Wright included an unsigned affidavit in his motion for a new trial claiming that Reed deceived him into waiving his right, he did not include any o ffers of proof that demonstrated that other witnesses with personal knowledge could support this claim. Therefore, on this record, Wright has not demonstrated that his lawyer provided ineffective assistance with regard to his d ecision to waive his right to a jury trial. Pickens , 446 Mich at 338.

Wright has not established any e rror warranting a new trial.

Affirmed.

/s/ Michael J. Kelly /s/ Mark J. Cavanagh /s/ Douglas B. Shapiro