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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 21, 2015

v No. 313449 Wayne Circuit Court ROY LEE BLACK, LC No. 12-000945-FC

Defendant-Appellant.

Before: T ALBOT , C.J., and M URPHY and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of first-degree premeditated murder , MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, for the shooting death of Marlon Jones. On appeal, defendant challenges the trial court’s failure to warn him of the prejudicial effect of appearing before the jury in his jail uniform and the seating an alternate juror on the second day of deliberations. This Court previously remanded to develop the record in relation to the alternate juror issue. People v Black , unpublished order of the Court of Appeals, entered March 7, 2014 (Docket No. 313449) ( Black Order). We now discern no prejudicial error in the conduct of defendant’s trial and therefore affirm.

I. BACKGROUND

On the afternoon of January 4, 2012, Marlon Jones drove to Sup erior Street in the city of Detroit with his friend Eugene R ice to purchase drugs. Rice ex ited the vehicle and traversed a vacant lot to meet a drug dealer. Defendant then drove up alon gside Jones’s vehicle, with Gregory Currie in the passenger seat. All four men were acquai nted, but defendant and Jones had a falling out the previous year. Defendant and Rice exchan ged greetings as Rice returned to Jones’s car. Despite the presence of witnesses, defendant remo ved a handgun from his left sleeve and shot Jones in the hea d three times. Rice ran away a nd called 911. Currie claimed that he was so intoxicated that he slept through the incident, barel y hearing the gunshots. Another witness, George O’Neal, testified that he saw the shooting fromthe porch of a vacant home he had visited that day to use heroin. Authorities arrived approx imately 30 minutes later and pronounced Jones dead at the scene.-2- II. JAIL GARB

On the first day of the jury trial, defendant appeared at the courthouse in a yellow jumpsuit bearing the word “jail.” The trial court sua sponte q uestioned defendant about his apparel, and defendant explained that his jailhouse jumpsuit wa s the only clothing he had. It appears that defendant had traded his street clothes for “[m]on ey for the commissary.” The court offered defendant a suit, shirt , and tie that he could wear dur ing trial, but defendant refused. Upon questioning, defendant informe d the court that he was 57 y ears old, had been in court twice before, and had worn civilian clothes on at least one of those occasions. The court queried, “But now you don’t want to wear civilian clothes?” and defendant res ponded, “What’s wrong with these your Honor.” The court stated its belief that defendant was “creating appellate issues” and “strongly recommend[ed] that [defendant] wear civilian clothes, ” but declared that defendant was old enough and sufficiently familiar with the criminal just ice system to make his own decision regarding his apparel.

Defendant now contends that the court denied him due process o f law by failing to explain the prejudic ial effect of wearing hi s jail uniform in f ront of the jury.

With respect to a defendant’s physical appearance during trial, we . . . review the trial court’s decision for an abuse of discretion. We defer to the trial court’s superior opportunity to observe t he defendant and to determine whether the defendant’s appearance prejudicia lly marks him or her as a pris oner. [ People v Payne , 285 Mich App 181, 186; 774 NW2d 714 (2009), citing People v Harris
, 201 Mich App 147, 151-152; 505 NW2d 889 (1993).]

“A criminal defendant generally has the right to appear before the court ‘with the appearance, dignity, and self-respect of a free and innocent ma n.’ ” Payne , 285 Mich App at 187, quoting People v Shaw , 381 Mich 467, 474; 164 NW2d 7 (1969). A defendant is “ ‘enti tled to wear civilian clothes rather t han prison clothing at his tri al’ ” and “ ‘[i]t is improper’ ” to bring the defendant before the jury “ ‘clothed as a convict.’ ” Shaw , 381 Mich at 474, quoting 21 Am Jur 2d, Criminal Law, § 239, pp 275-276. Accordingly, “[a] def endant’s timely request to wear civilian clothing must be granted.” Harris , 201 Mich App at 151. However, failure to raise a timely objection to wearing jail clothing “waives any defects a s to a defendant’s appearance before the jury.” People v Harris , 80 Mich App 228, 230; 263 NW2d 40 (1977). Moreover, “[a] prisoner who voluntarily chooses to stand trial in jail clothing cannot be heard to complain on appeal.” Id. at 231 (emphasis added).

Defendant waived any claim of error by rejecting the court’s o ffer of civilian clothing and choosing to proceed to trial in his jail jumpsuit. Defendant’s decision was an “intentional relinquishment or abandonment” of his right to appear before th e jury dressed as a civilian in the face of the trial court’s “stong [] recommend[ation]” that he we ar something else. People v Carter , 462 Mich 206, 214; 612 NW2d 144 (2000). Defendant’s failure to object to wearing prison clothes, and indeed consci ous decision to remain in his jumpsuit, was “sufficient to negate the presence of compulsion necessary to establish a constitutio nal violation.” Estelle v Williams
, 425 US 501, 512-513; 96 S Ct 1691; 48 L Ed 2d 126 (1976). Simp ly stated, defendant cannot explicitly choose to wear his jai l-issued uniform and then comp lain that the court unconstitutionally forced him to do so.-3- Even if defendant had not waive d his claim of error, he would not be entitled to relief. The trial court bore no duty to specifically warn defendant abo ut the danger of prejudice facing a criminal defendant appearing befo re the jury in jail garb; that duty rests with defense counsel. As stated by the United States Supreme Court:

Nor can the trial judge be faulte d for not asking the responden t or his counsel whether he was deliberately going to trial in jail clothes. . . . Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before an d during trial rests with the accused and his attorney. Any other approach would re write the duties of trial judges and counsel in our legal system. [ Estelle , 425 US at 512.]

Defendant has not contended that d efense counsel failed in his duty to advise him of the importance of appropriate attir e at trial. We discern no error in this regard.

III. SEATING OF AN ALTERNATE JUROR

At the close of arguments, the trial court instructed the jury and then randomly chose two jurors—Andrew Nagy and Aed Dudar—to excuse as alternates. The remaining jurors retired to the jury room to begin deliberations. They were dismissed for the day a half hour later. The following morning, October 12, 2012, court was allegedly delaye d “several hours” because one of the jurors failed to appear. The court did not properly doc ument subsequent events, but it is clear on the preremand record that one of the alternate jurors— Dudar—was called back to court to deliberate with the remaining jurors. At 1:24 p.m., this ne wly constituted jury returned to the courtroom to enter its verdict.

Defendant contended on appeal that the trial court violated hi s constitutional right to an unbiased jury, and the strictures of MCR 6.411, by seating an a lternate juror without ensuring that the alternate juror had not been subject to outside influe nce in the interim. Upon initial review, this Court “remanded to t he trial court f or an evidenti ary hearing to develop the record with respect to the issue of an alternate juror being used duri ng deliberations,” and “direct[ed] the focus of the evidentiary pro ceedings to include the trial c ourt’s compliance with the procedures set f orth in MCR 6.411.” Black Order (Docket No. 313449).

On remand, the trial court condu cted its evidentiary hearing o ver five days in October and November 2014. Both Dudar and Nagy testified, as well as the jury foreman, Joseph Bauman. The prosecutor, defe ndant’s trial counsel, and defenda nt also took the stand. The trial court ultimately concluded that it had followed the procedures of MCR 6.411 and the jury had “rendered a fair and unanimous verdict.”

Defendant now challenges the tr ial court’s factual findings, w ith some merit, and continues to argue that the court was lax in its duties. He fu rther complains that he was excluded from the October 12, 2012 unrecorded proceedings during which t he court and the attorneys decided how to resolve the missing juror situation. The lack o f consultation deprived defendant of counsel, he asserts. In considering these issues, we begin with a general discussion of the applicable law.-4- A criminal defendant has the right to a fair and impartial jur y. US Const, Am VI; Const 1963, art 1, § 20. This includes “a fundamental interest in re taining the composition of the jury as originally chosen.” People v Tate , 244 Mich App 553, 562; 624 NW2d 524 (2001). It is not always possible to maintain the integrity of the original jury. And defendants have “an equally fundamental right to have a fair and impartial jury made up of persons willing to cooperate, a right that is protected by removing a juror unable or unwilling to cooperate.” Id. ; see also MCL 768.18 (the trial court may excuse jurors for “any condition ar is[ing] during the tr ial . . . which in the opinion of the trial court justifies the excusal . . . from further service”). Jurors who are unable or unwilling to deliberate may be replaced with an alter nate. E.g., People v Mahone , 294 Mich App 208, 215-217; 816 NW2d 436 (2011).

The power to impanel extra jurors at the start of a criminal t rial arises from MCR 6.411, which provides:

The court may impanel more than 12 jurors. If more than the nu mber of jurors required to decide the case are left on the jury before deliber ations are to begin, the names of the jurors must be placed in a container and names drawn from it to reduce the number of jurors to the number required to decide th e case. The court may retain the alternate jurors during deliberations. If the c ourt does so, it shall instruct the alternate jurors not to discuss the case with any other person until the jury completes its deliberations and is discharged. If an alte rnate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.

“The trial court’s decision whether to remove a juror is revie wed for an abuse of discretion,” while “[c]onstitutional issues, such as the right to a fair trial, are [generally] reviewed de novo.” Mahone , 294 Mich App at 215. Defendant failed to preserve his challe nge with a timely objection, first ra ising the issue on appeal. Ou r review is therefore limited to plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 764-765, 774; 597 NW2d 130 (1999). But we review for clear error defendant’s challenges to the trial court’s factual findings at the hearing on remand. MCR 2.613(C).

A. MCR 6.411

MCR 6.411 permits criminal courts to “impanel more than 12 jur ors.” The trial court was therefore within its right to impanel 14 jurors at the onse t of trial. The trial court also complied with MCR 6.411’s mandate to reduce the jury size to 12 prior to deliberations through random selection. At the close of trial, the court read final instructions to the jury. The court continued:-5- Now ladies and gentlemen as you have already been informed the jury can only have 12 members to deliber ate and arrive at a verdict. [1]

At this time, my clerk will blind draw the names of two jurors who will be excused with the tha nks of the Court.

MCR 6.411 next describes that “[t]he court may retain the alte rnate jurors during deliberations.” The trial court did not technically retain Dud ar and Nagy. Instead, the court excused the alternate jurors, telling them “you are free to go. ” 2 This Court’s decision in Tate provides an example of how a court should proceed on the record to retain alternate jurors. In Tate , the trial was heard by 13 jurors, who had been instructed fro m the beginning not to discuss the case with anyone. Tate , 244 Mich App at 555. During final instructions, the court in formed the panel that one member would be “blind drawn” to be removed from deliberations. Id. The court continued:

However, I am going to ask that person whose name is drawn to please give me your name and a number where you can be reached tomorro w during the day, so that in the event that we are unable to continue with t he 12, we will be able to call that alternate i n and have that person deliberate. [ Id. at 555-556.]

Here, the court excused the alternates with no indication on th e record that they might be recalled. Indeed, neither Dudar nor Nagy could recall such inf ormation being given even off the record when questioned at t he evidentiary hearing.

The court rule continues by provi ding that if the court exerci ses its discretion to retain the alternate jurors, it must “instruct [them] not to discuss the c ase with any other person until the jury completes its deliberations and is discharged.” The trial transcript reveals that such instructions were given to the entire jury at the beginning of trial:

Now until this case is submitted to you at the conclusion of t he Court’s final instructions you must not discuss it with anyone, not eve n with members of your families or your fellow jurors.

After it is submitted to you, you may discuss it only when the Court so instructs you and only in the jur y room in the presence of all your fellow jurors.

* * *

1 Our review of voir dire and ope ning jury instructions revealed that the court had not previously advised the jury on the record that two members would later be selected as alternates while the other 12 would delibe rate the case.

2 Defense counsel testified that h e recalled the court “reminded [the alternate jurors] that they still could be called and they should be available and not to d iscuss the case.” This testimony was corroborated by no other witnes s and contradicts the transc ript of the proceedings.-6- If anyone attempts to say anything to you or in your presence about this case, tell them that you are on the jury trying the case and as k them to stop.

No complementary instruction a ppears in the transcript of the final jury instructions. At the evidentiary hearing, Nagy recalled that the judge instructe d him not to discuss the case with others, but he was unsure whether the trial court gave this ins truction before or after he and Dudar were chosen as alternates and excused. He did not rememb er personally speaking to the judge or the court clerk before he left the building. Dudar be lieved the judge provided additional instructions when he was release d as an alternate: “I think I w as told not to discuss the case with anyone any family members or anybody outside of the courtroom o utside of the jury room besides the jurors.”

This Court has previously found a trial court’s initial instru ctions not to discuss the case sufficient to inform an alternate juror that has been retained by the court. See Tate , 244 Mich App at 555. In Tate , however, the court had also given a specific instruction to r etain the alternate jurors until the com pletion of deliberations. Id. at 555-556. When the alternate juror was recalled to join the jury in Tate , the court engaged in an inquiry on the record to ensure the juror had not discussed the case outside of court and had not b een influenced. Id. at 557. Given the starkly different circumstances in this case, we cannot fin d the jury’s initial instruction sufficient to advise the alternate jurors.

Finally, MCR 6.411 demands that the court “instruct the jury t o begin its deliberations anew” when an alternate juror joins their ranks. Absent a tran script of that portion of the proceedings, the attorneys questioned Dudar and Bauman, the jur y foreman, to piece together events. Dudar did not recall a ny instructions being given in t he courtroom; he remembered only being taken into the jury room. Bauman testified that the enti re jury was brought into the courtroom and seated in the jury box. Bauman continued, “I bel ieve the Judge gave us instruction as to how we were suppose[d] to go about with our d eliberations but I don’t remember exactly what he said.” The prosecutor mirrored Bauman ’s memory: “I believe that the rest of the jurors were brought out and then they were all inst ructed to go in and deliberate together.” As did defense counsel: “He advised them [the jury assembled in the jury box] . . . that this alternate juror woul d now become part of the jury. A nd there was some discussion as to how they would proceed. I don’t have any independent memory of the exact verbiage but I can say . . . I was satisfied.” Defense c ounsel reiterated that he was satisfied with the instructions after acknowledging his awarene ss that the jury should be direc ted to restart deliberations. While such an instruction was likely given, we have no way to v erify this on the record as it stands.

Yet, relief is not warranted in this case. The trial court’s failure to properly inform the alternate jurors that they were being retained for service and to instruct the alternates upon excusal not to discuss the case with anyone, and even the poten tial error in failing to advise the jury to start deliberations anew with the newly seated juror, w ere not outcome determinative. At the hearing, Dudar expressly denied that he had spoken to anyon e about the case between being released and then recalled to join the deliberating jury. Acco rdingly, the failure to properly retain and instruct Dudar in t his regard did not affect the jur y deliberations.-7- Moreover, the jury did not begintheir substantive deliberatio ns until Dudar was seated. Bauman testified that in the half hour the jurors met on Octobe r 11, 2012, the jury selected him as the foreman, they read the instructions, and “discussed what evidence we may want to ask to have recalled for us to see.” The jury “had not even really st arted any meaningful deliberations before [they] were excused.” Bau man indicated that Dudar appro ved the jury’s choice of foreman and was fully involved in the deliberation process. Th e jury began discussing the charges against defendant and ta king polls on his guilt only af ter bringing Dudar up to speed. Dudar was present when the jury “spent a lot of time going over ” the elements of the offenses. As a result, this error was also harmless. See Tate , 244 Mich App at 567-568 (finding harmless error even in light of the cour t’s specific instruction not to begin deliberations anew). 3

B. DEFENDANT’S RIGHT TO BE PRESENT

Defendant also contends that he was excluded from the courtroo m on the morning of October 12, and that defense counsel failed to consult with him . As a result, defendant complains that his constitutional rights to be present during the proceedings and to effective assistance of counsel were violat ed. This issue was not raised until the third day of the evidentiary hearing. Defendant testified that he did not learn about the missing witness situation until noon when a deputy visited defendant in the holding cell, and was not returned to the courtroom until the verdict was read. Defendant claimed that h is lawyer never discussed the issue with him. Defense counsel, on the other hand, “believe[d ] [his] client was there” when the alternate juror arrived and wa s impaneled. Defense counsel adm itted that he did not consult with his client about proce eding with “13 jurors” versus recalling t he alternate and dismissing the late juror. However, he could not recall whether he had discussed t he situation with defendant in any form.

A criminal defendant has both a statutory and constitutional right to be present during his trial. People v Kammeraad , 307 Mich App 98, 116-117; 858 NW2d 490 (2014), citing MCL 768.3, and People v Mallory , 421 Mich 229, 246 n 10; 365 NW2d 673 (1984). This right extends to “all critical stages of the trial.” Rushen v Spain , 464 US 114, 117; 104 S Ct 453; 78 L Ed 2d 267 (1983). The constitutio nal right is implied in the C onfrontation, Due Process, and Impartial Jury Clauses. Kammeraad , 307 Mich App at 117.

A defendant has a right to be present during the voir dire, sel ection of and subsequent challenges to the jury, presentation of evidence, su mmation of counsel, instructions to the jury, rendition of the verdict, im position of sentence, and any other stage of trial whe re the defendant ’s substantial rights might be adversely affected. [ Mallory , 421 Mich at 247.]

3 Defendant argues that because “a constitutional right [was] in vaded,” the pros ecution should bear the burden of demonstrating an absence of prejudice. Howe ver, when an issue is unpreserved, “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudi ce,” regardless of whether th e issue involves a constitutional right. Carines , 460 Mich at 763-764, quoting United States v Olano , 507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).-8- It has also been described that a criminal defendant has a due process right to be present during his criminal proceedings “ ‘whenever his presence has a relatio n, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge.’ ” United States v Gagnon , 470 US 522, 526-527; 105 S Ct 1482; 84 L Ed 2d 486 (1985), quoting Snyder v Massachusetts , 291 US 97, 105-106; 54 S Ct 330; 78 L Ed 674 (1934). A defendant’s ab sence even at a critical stage of the proceeding does not mandate automatic reversal; rather, the defendant must establish “whether there is ‘any reasonable possibility of prejudice’ ” t o merit relief. People v Morgan
, 400 Mich 527, 536; 255 NW2d 603 (1977).

No precedential opinions in this state categorize as a “critic al stage” a proceeding in which the court decides how to proceed when a juror fails to ap pear during deliberations. The California Court of Appeals has d eclared that the seating of al ternate jurors is not a critical stage, and there is no constitutional violation even defense counsel i s absent when a decision is made. See People v Dell , 232 Cal App 3d 248, 257; 283 Cal Rptr 361 (1991). The Colora do Court of Appeals agreed with this descri ption, stating “While the select ion of a jury is a critical stage of the proceeding at which a defendant or his counsel has a right to be present, replacing a juror with an alternate is more in the nature of an administrative ta sk,” and a defendant must show prejudice from his absence in order to merit relief. People v Anderson , 183 P3d 649, 651 (Colo App, 2007). Similar results have been reached in Kansas and Ne braska. See State v Davis , 284 Kan 728; 163 P3d 1224 (2007) (holdi ng that a trial court confer ence with a juror charged with bias is a critical stage, but s uggesting that the substitution of a juror for a benign reason like illness is not); State v Marks , 286 Neb 166, 173; 835 NW2d 656 (2013), citing Snyder , 291 US 97 (finding that defendant’s pr esence would have been “useless” and therefore was not constitutionally mandated where defense counsel was present in the courtroom and agreed to the procedure to substitute an alternate juror for a sitting juror who “would have suffered a harm had he continued to serve”).

While initial jury selection is a critical stage of the procee dings, there is no legal support for describing as critical the juror substitution proceeding in this case. The substitution was more akin to an administrative task following the absence of a seate d juror. And defendant’s attorney was present to protect his rights if need be. Accordingly, we find no prejudicial violation of defendant’s rightto be present.

C. ASSISTANCE OF COUNSEL

Defendant also challenges defen se counsel’s failure to consult with him before agreeing to recall an alternate juror. Def endant failed to preserve thi s issue by seeking a new trial or an evidentiary hearing on ineffective assistance grounds. 4 As a result, our review is limited to mistakes apparent on the existing record. See People v Rodriguez , 251 Mich App 10, 38; 650 NW2d 96 (2002), citing People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).

4 The evidentiary hearing on rema nd was limited to the trial court’s compliance with MCR 6.411. No record was created regar ding counsel’s performance.-9- Whether a defendant has been denied the effective assistance o f counsel is a mixed question of fact and constitutional law. People v Lockett , 295 Mich App 165, 186; 814 NW2d 295 (2012). We review the trial court’s factual findings for c lear error, and constitutional determinations de novo. Id ., citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

“Most claims of ineffective a ssistance of counsel are analyzed under the test developed in Strickland [ v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984)].” People v Frazier , 478 Mich 231, 243; 733 NW2d 713 (2007). Under Strickland , it is a defendant’s burden to demonstrate: (1) that counsel’s performance fell below an ob jective standard of reasonableness under prevailing professional norms; and, (2) th ere is a reasonable probability that, but for counsel’s error, the result of the proceedings wo uld have been different. Strickland
, 466 US at 694; People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012). The defendant must rebut the strong presumption that counsel rendered adequat e assistance. People v Vaughn
, 491 Mich 642, 670; 821 NW2d 288 (2012); LeBlanc , 465 Mich at 578. The United States Supreme Court described in United States v Cronic , 466 US 648, 659-660; 104 S Ct 2039; 80 L Ed 2d 657 (1984), that there are “three rare situations in whic h the attorney’s performance is so deficient that prejudice is presumed.” Frazier , 478 Mich at 243.

Defendant characterizes his claim as falling under the first Cronic scenario: the complete denial of counsel at a critical stage in the proceeding. Cronic , 466 US at 659-660. This simply is not accurate. Defendant had counsel and that counsel was pr esent at the proceeding. Defendant’s real complaint is the failure of counsel to consultwith him. This falls squarely under Strickland

. “[T]he Sixth Amendment right to effective assistance of counse l should not be translated into a right to be present at counsel’s side wherever and whene ver instantaneous consultation may be helpful to the defense.” Mallory , 421 Mich at 266. But when defendant cannot be at counsel’s side, there are times when defendant needs to be cons ulted. “From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on imp ortant decisions and to keep the defendant informed of important developments in the course of t he prosecution.” Strickland
, 466 US at 688. “An attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defen se strategy. That obligation, however, does not require counsel to obtain the defendant’s con sent to ‘every tactic al decision.’ ” Florida v Nixon , 543 US 175, 187; 125 S Ct 551; 160 L Ed 2d 565 (2004).

There is no legal support for treating the decision made in th is case—whether to call an alternate juror to replace a late juror—so important that couns el was required to consult with defendant. This was not a matter of “overa rching defense stra tegy.” And there wa s no reason to assume that the jurors had gotte n far in their deliberations gi ven that they had only been in the-10- jury room for half an hour. This was a simple administrative d ecision made to avoid further delay of the trial. Accordingl y, we discern no error in counse l’s performance.

We affirm.

/s/ Michael J. Talbot /s/ William B. Murphy /s/ Elizabeth L. Gleicher