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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 15, 2016

v No. 326932 Wayne Circuit Court SHERRON DESHAWN DAVIS, LC No. 15-000361-FC

Defendant-Appellant.

Before: G ADOLA , P.J., and W ILDER and M ETER , JJ.

P ER C URIAM

. Defendant was convicted after a jury trial of armed robbery, M CL 750.529, conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529, assault with i ntent to do great bodily harm less than murder, MCL 750.84, conspiracy to commit assault with intent to do great bodily harm less than murder, MCL 750.157a; MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The tri al court sentenced defendant to concurrent terms of 20 to 40 years’ imprisonment for the armed robbery and conspiracy to commit armed robbery convictions, 5 to 10 years’ imprisonment f or the assault wi th intent to do great bodily harm less than murder and conspiracy to commit ass ault with intent to do great bodily harm less than murder convictions, and a consecutive sen tence of two years’ imprisonment for the felony-fi rearm conviction. Defendant appe als as of right, and we affirm.

Defendant’s convictions arise from the assault and armed robbe ry of Dwain Hayes on October 8, 2014, near the intersection of State Fair Avenue and Strasburg Street in the city of Detroit. On that evening, Hayes was visiting the home of his u ncle on Strasburg Street. Defendant was present at the home, as was Glen Thomas. Hayes, defendant, and Thomas are all related through the marriage of o ther relatives. Hayes testifi ed that he had known defendant and Thomas since the two were little children, being about twenty y ears. Hayes testified that about two months earlier, he had told defendant and Thomas that he ha d started a job in which he was bringing home a thousand dollars a week; Hayes had encouraged d efendant and Thomas to apply for work at the same place because the employer was hiring.

As Hayes was preparing to leave his uncle’s home on the evenin g of October 8, 2014, defendant and Thomas asked Hayes if he would give them a ride i n his car to a destination a few blocks away. Hayes agreed. Defendant sat in the front passeng er seat of Hayes’ car, while Thomas sat in the back seat of the car behind Hayes. Hayes tes tified at trial that shortly after-2- defendant and Thomas got into the car, he noticed that Thomas w as putting on gloves. A few moments later, Hayes heard a gunshot from the back seat and rea lized that he had been shot in the back of his head. After h earing the gunshot, Hayes heard T homas tell defendant to check Hayes’ pockets. Defendant immediately grabbed Hayes and began patting the right side of Hayes’ pants’ pockets. Hayes tes tified that defendant then sai d “It’s stuck. I can’t get it. It’s stuck. It’s stuck.”

The car, still being driven by Hayes, crashed into a fence and came to rest against a fire hydrant. Jovan Houston, a nearby pedestrian, testified that he and his girlfriend were on Strasburg Street that evening and saw Hayes’ car crash. Housto n testified that after the car came to a stop, he saw two African American males dressed in dark cl othing emerge from the car, one from the front passenger seat and one from the back seat on the driver’s side. The two males ran in different directions, then one returned briefly and appeared to look for something before running away again. The driver’s door was open and Houston saw Hayes lying on the ground near the car in a puddle of bl ood. Houston and his girlfriend called the police and attempted to assist Hayes. Hayes, who was conscious, mentioned a name that sounded like “Ron” and told Houston “them was my dogs. T hey was trying to rob me.”

Angela Thomas, the aunt of defen dant and Glen Thomas, testifie d that she lived in the neighborhood where the crimes occurred and that defendant was l iving in her home at that time. She heard the sirens near her home that evening and, shortly th ereafter, defendant and Glen Thomas arrived at her house. According to Angela Thomas, defen dant arrived wearing black pants and shirt but changed his clothes at her house and asked for clothing for Glen Thomas. She testified that defendant was not acting in his typical mann er and left the house quickly after changing clothing. According to Angela Thomas, during a phone call sometime after the shooting, defendant admitted to he r that Glen Thomas had shot H ayes.
Defendant was arrested on December 12, 2014, and arraigned on the charges on January 21, 2015. Defendant attended a pretrial conference before the trial court on February 23, 2015 1

. Defendant’s attorney was not present and defendant was represen ted for purposes of that hearing by the attorney representing Gl en Thomas. In response to the trial court setting the trial date for one week in the future, defendant and the trial court had the f ollowing exchange, in relevant part:

DEFENDANT DAVIS: See, about the trial date, I don’t have my dis covery package, no transcript, nothing. I don’t remember my lawyer. I only met with my lawyer two times. So we have not been able to come up with no defense or none of that.

THE COURT Well, I will have Mr. Slameka come here. If you don ’t have any objection, I’ll tell him to get over to see his client

.

1 Defendant also attended a very b rief pretrial c onference earli er on January 28, 2015, but only docketing issues were discusse d and defendant did not address t he trial court.-3- DEFENDANT DAVIS: This is my second day I seen him. I have been on all . . .

THE COURT: All right. I’m going to direct that he see the def endant, to see Mr. Davis today.

Another pretrial conference was held two days later on Februar y 25, 2015, at which time defendant rejected a plea agreement and chose to proceed to tri al. One week later, the parties proceeded to trial on the charges against defendant. Before th e jury voir dire began, the court and defense counsel discussed whether the defense would be call ing Glen Thomas as a witness. It was determined that Glen Thomas’ attorney had advised him no t to testify. Defendant, defense counsel, and the trial court then had the following exc hange:

THE COURT: All right. Mr. Dav is, you had your hand up, sir. What would you like to say?

DEFENDANT DAVIS: Me and my law yer, we ain’t getting along. He -- ain’t no communication. He just came back there and told me he ain’t fixing to fight for me.

MR. SLAMEKA: His lawyer didn’t say that. His lawyer went back there and

- - DEFENDANT DAVIS My lawyer told me he’s not fixing to fight for me. I asked him to come out here a nd tell you that he was going to st ep off my case. He told me something like he wants to step on my face. The last w eek Friday he told me he ain’t my Momma and all this crazy stuff.

MR. SLAMEKA: I went back there and explained to Mr. Davis that Mr. Thomas is not going to testify.

DEFENDANT DAVIS: That is no t – man, say what you said.

MR. SLAMEKA: Is there any chance that I can complete myself?

DEFENDANT DAVIS: Yes, you just –

THE COURT: Go ahead, Mr. Slameka.

MR. SLAMEKA: Thank you, Judge. I said Mr. Thomas is not going to testify. In my humble opinion based upon the facts of this cas e and the thorough investigation I’ve done speaking with Ms. Towns [the prosecutor ] at least a dozen times, I suggested to him that the offer, which is way below th e guidelines ought to be suggested.

DEFENDANT DAVIS: He only came to see me one time.-4- THE COURT: Mr. Davis, I want to hear from Mr. Slameka. Then I ’ll hear from you, sir. I’m going to hear from one person at a time. M r. Slameka, do you want to finish your thought please?

MR. SLAMEKA: Thank you, sir. And I suggested to him that he ou ght to consider the 10 years. He told me no, get off my case because I ain’t doing nothing for him. I’ve been to the jail twice. I provided him with a transcript, which is the complete testimony of the only res gestae witness. I’ve see[n] him six different times in various bullpens because we Pretrialed t his case I don’t know how many times.

DEFENDANT DAVIS: No, you didn’t.

MR. SLAMEKA: This is what I con tinuously get. He’s totally dis ruptive. He doesn’t listen to me. He doesn ’t care about anything whatsoeve r. I’m ready to try this case, Judge, because it’s a very simple case as you know. You just heard a plea from the other gentleman [Glen Thomas] as to what transpir ed. My client is aware of that. I discussed this matter with my client. At fir st he denied ever being involved. Then he gave me a different version of what’s going on. I understand it, and I think after 46 years I’m capable of repres enting him. If he doesn’t want me, that’s his business. Thank you, Judge.

THE COURT: All right. Mr . Davis what do you want to say?

DEFENDANT DAVIS: We only talked about what happened one time. I never gave this man no two diffe rent stories about nothing. Th en it’s never no communication. Every time we talk, he got an attitude, and he just told me he not fixing to fight for me. Talki ng about he ain’t my Momma, [h]e wish he could step on my face, something crazy what he just came back there and sa id.

MR. SLAMEKA: There were four pe ople in that bullp en. If you wa nt to bring any of them out as to wheth er I said that, I would stand on the record. Secondly, I never said I wouldn’t fight for him. He said you’r e not fighting for me. Thank you, Judge.

DEFENDANT DAVIS: When I said that, you said no, no, I’m not. I ’m not fighting for you.

MR. SLAMEKA: Thank you, Judge.

THE COURT: Well, this is the a fternoon of trial. This matter is going to go forward. We’re going to get the jury. We’re going to bring them in. We’re going to move forward. The offer that had been made by Ms. Tow ns is one that was placed on the record. It’s my understanding Mr. Davis is n ot interested in the offer and wants to go to trial. That certainly is his right. And if he’s choosing to go forward, that’s the case, and w e will in fact go forward.

DEFENDANT DAVIS: I don’t want t o go forward with Mr. Slameka.-5- THE COURT: I understand that. I heard that, and I understood what you said. But this is 10 minutes to two the afternoon of the firstday of trial, and you say you want a new lawyer. It’s too late in the day, and Mr. S lameka is prepared to represent you, and we can go forward.

DEFENDANT DAVIS: I tried to tell the bailiff to like somehow ca n I talk to you and let you know about this matter.

THE COURT: What matter are you talking about? I mean –

DEFENDANT DAVIS: I’m talking about –

THE COURT: It’s clear to me that you say you don’t want Mr. Sl ameka to represent you today. I understand that. I heard that. But we ’re going forward with the trial today. All of the witnesses have been notified. The jurors have been notified. Today is the time to go forward. There could h ave been an earlier time to bring that to my attent ion. It hasn’t happened. We’re going forward. It’s a delay tactic. I’m not going to have that.

The trial court then proceeded with the voir dire of the jury with defense counsel representing defendant. The tri al began the following day, res umed the following Monday, and concluded with the jury convictin g defendant. On appeal, defen dant argues that the trial court abused its discretion by denying his request for substitution o f counsel. We disagree.

This Court reviews a trial c ourt’s decision regarding a defend ant’s request for substitution of appointed counsel for an abuse of discretion. People v Traylor , 245 Mich App 460, 462; 628 NW2d 120 (2001). A trial court’s decision is considered an abu se of discretion if it falls outside the range of principled outcomes. People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003).

The federal and state constitutions grant the right to counsel in all criminal prosecutions. US Const, Am VI; Const 1963, art 1, § 20; People v Marsack , 231 Mich App 364, 372; 586 NW2d 234 (1998). But while an i ndigent defendant is guaranteed the right to counsel, a defendant is not necessarily guara nteed the attorney of his or her choice, Traylor , 245 Mich App at 462, and is not entitled to s ubstitution of appointed counse l merely because the defendant is dissatisfied with appointed counsel. People v Bradley , 54 Mich App 89, 95; 220 NW2d 305 (1974). A defendant is entitled to substitution of defense cou nsel, however, if discharge of the first attorney is for (1) good cause and (2) does not unreasonably disrupt the judicial process. People v Buie (On Remand) , 298 Mich App 50, 67; 825 NW2d 361 (2012).

Good cause is not established if a defendant merely lacks conf idence in counsel or is generally unhappy with counsel. People v McFall , 309 Mich App 377, 383; 873 NW2d 112 (2015); People v Strickland , 293 Mich App 393, 398; 810 NW2d 660 (2011). Rather, good cause may exist when (1) the defendant and appointed counsel de velop a legitimate difference of opinion regarding a fundamental trial tactic, (2) there has bee n a breakdown in communication and in the attorney-client relationship, or when (3) defense co unsel has shown a lack of diligence or interest. McFall , 309 Mich App at 383. A difference of opinion is considered l egitimate when the difference is based on a disagreement as to a fundamen tal trial tactic, but not when the-6- difference of opinion is only a bout trial strategy or professio nal judgement. Strickland , 293 Mich App at 398. For example, this Court has held that a defen se attorney’s de cision to call a witness is considered a matter of trial strategy. People v Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012).

In this case, defendant contends that there had been a breakdo wn in the attorney-client relationship sufficient to est ablish good cause. On the first day of trial prior t o beginning the jury voir dire, defendant and defense counsel had a strenuous disagr eement in the courtroom. The argument was triggered when defense counsel determined that Gle n Thomas would not be testifying upon the advice of his counsel. Upon hearing the ne ws, defendant accused counsel of “not fixing to fight” for him, and asked the trial court to app oint substitute counsel. Because the decision to call a witness is a matter of trial strategy and no t a fundamental trial tactic, that allegation by itself is not adequate to establish good cause fo r the substitution of counsel. Here, however, the disagreement appears to have been deeper and more fundamental than simply a dispute over whether to call a witness.

The record from the first day of trial reflects that defendant and defense counsel had a very acrimonious relationship. Defendant and defense counsel i nterrupted each other, spoke over each other, and accused each other of not listening. Defe nse counsel stated during the hearing that “[t]his is what I continuously get. He’s totally disruptive. He doesn’t listen to me. He doesn’t care about anything wh atsoever.” Defendant reported to the trial court that when he had asked defense counsel to “st ep off his case” defense counse l told defendant that he wanted to “step on his face.” Also, defense counsel did not present his client’s request for new counsel to the trial court; defendant’s re quest was presented to the trial court only because defendant shouted over his own attorney.

A review of the record also i ndicates that defense counsel app arently became angry because defendant declined the offered plea bargain. Defense c ounsel stated before the trial court: “In my humble opinion based upon the facts of this case and the thorough investigation I’ve done speaking with Ms. Towns [the prosecutor] at least a d ozen times, I suggested to him that the offer, which is way below the guidelines ought to be s uggested” and “I suggested to him that he ought to consider the 10 years. He told me no, get off my case because I ain’t doing nothing for him.” More troubling i s that defense counsel told the trial court “I’m ready to try this case, Judge, because it’s a very simple case as you know. You just heard a plea from the other gentleman [codefendant Glen Thomas] as to what transpired. My client is aware of that. I discussed this matter with my client. At first he denied ever being involved. Then he gave me a different version of what’s going on.” Defense counsel therebyappears to have revealed to the trial court a privileged communication from his client stating that defendant had told conflicting stories and implying that defenda nt perhaps had conceded involv ement in the crimes.

When a defendant asserts that assigned counsel should be repla ced, the trial court is obligated to inquire into whether the allegations are true. People v Bass , 88 Mich App 793, 802; 279 NW2d 551 (1972). The trial court is required to hear the a llegation and, if necessary, take testimony and state its findings and conclusion. People v Ginther , 390 Mich 436, 442; 212 NW2d 922 (1973). Here, the trial court did not determine wheth er defendant’s allegation of a breakdown in the attorney-client r elationship was true and inst ead considered only whether substitution of counsel would delay the judicial process. Defe nse counsel’s behavior during the-7- exchange before the trial court, however, strongly indicated a breakdown in the attorney-client relationship, and thus the trial court should have inquired further regarding the validity of defendant’s allegation.

But even when good cause is demonstrated, substitution of coun sel is only warranted where it will not unreasonably disrupt the judicial process. W here the jury, witnesses, prosecutor, and defense counsel were ready to proceed, this Court has held that a defendant’s request on the first day of trial for substitution of counsel w ould have unreasonably delayed the judicial process. See Strickland , 293 Mich App at 399. In this case, defendant requested substitution of counsel on the first day of trial shortly befor e the voir dire of the jury. The trial court noted that substituting c ounsel at that time would disrup t the judicial process. No doubt this is accurate, given that the trial court, the attorneys, an d the prospective jurors were ready to proceed. But it is difficult to envision a scenario in which s ubstitution of counsel does not delay judicial proceedings, a t least somewhat.

Here, the trial court chastised defendant for failing to reque st substitution of counsel earlier and concluded that defe ndant was intentionally seeking to delay the proceedings. A review of the record does not s upport this assessment. Defenda nt was arrested on December 12, 2014 and was arraigned on January 21, 2015. At the pretrial co nference held February 23, 2015, defendant learned that his trial was going to be set for just o ne week in the future. Defendant’s attorney was not present. Defendant expressed his concern to t he trial court that he had not yet received any written material from his attorney nor met with hi s attorney for any meaningful discussion about the upcoming tr ial. The trial court assured d efendant that defense counsel would be directed to meet with defendant. One week later, on t he date scheduled for trial to begin, defendant requested substitution of counsel.

There is no indication that defendant delayed in this request. Rather, defendant appears to have made his request at the first opportunity he had to add ress the trial court after having had an opportunity to meet with his defense counsel to discuss tria l strategy after rejecting the plea offer. In fact, the time between defendant’s arraignment on th e charges and the first day of trial was approximately six weeks. Approximately one week before the start of trial, defendant informed the trial court that he had not yet received any mater ials from defense counsel and had not yet had an opportunity for a m eaningful discussion with def ense counsel regarding his defense. One week later, after meeting with defense counsel, d efendant requested substitution of counsel.

Further, there is no indication on the record that there previ ously had been any delay in the judicial process by defendant. See e.g., People v Williams , 386 Mich 565, 577; 194 NW2d 337 (1972). In this case, where defendant made the request for substitution of counsel at his earliest opportunity after meeti ng with defense counsel, had ca used no previous delays, and where the entire legal process from arraignment to trial had ta ken place in six weeks, we question whether any delay caused by appointing substitute coun sel under these circumstances could be characterized as an undue delay of the judicial proces s.
Nonetheless, even though defendant’s allegation of a breakdown in the relationship warranted further inquiry, and even though defendant’s request may not have unreasonably delayed the judicial process unde r the circumstances, we hold t hat the trial court did not abuse its-8- discretion in declining to appoint substitute counsel for defen dant. After the trial court denied defendant’s request for substitu tion of counsel, defense counse l proceeded to adequately represent defendant at trial. The record indicates that defens e counsel was familiar with the facts of the case, diligently examined witnesses, made relevant objec tions, and acted diligently throughout to protect defendant’s rights. There is no indicati on that defendant was not afforded effective assistance of counsel at trial 2

. As discussed above, a complete breakdown of the attorney-clien t relationship may justify appointing new counsel. Buie , 298 Mich App at 67. But a trial court’s failure to explore a defendant’s claim that his assigned counsel should be replaced does not necessarily require that a subsequent conviction be set aside. Ginther , 390 Mich at 442. When, as here, defense counsel thereafter performs adequately to protect defendant’s interests at trial, the defendant has not been prejudiced by the trial court’s denial of the request for subst itution of counsel and the conviction will not be set aside. See Buie , 298 Mich App at 67. Accordingly, the trial court did not abu se its discretion when it denied defendant’s request for substitut ion of counsel.

Affirmed.

/s/ Michael F. Gadola /s/ Kurtis T. Wilder /s/ Patrick M. Meter

2 We note that the jury found defendant not guilty of assault wi th intent to commit murder, MCL 750.83, and not guilty of conspiracy to commit assault with int ent to murder, MCL 750.157a, MCL 750.83, in accordance with defense counsel’s closing argume nt, lending credence to the notion that defense counse l was not ineffective.