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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GARY LEE MARTIN, Defendant-Appellant.

UNPUBLISHED January 14, 2000

No. 213719 Clinton Circuit Court LC Nos. 97-006298-300 FH 97-006302-307 FH; 97-006309 FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KATHRYN MARY COOK, Defendant-Appellant. No. 213720 Clinton Circuit Court LC Nos. 97-006310-312 FH 97-006314-319 FH 97-006321 FH

Before: Smolenski, P.J., and Griffin and Neff, JJ. PER CURIAM. Codefendants Gary Martin and Kathyrn Cook appeal as of right following a joint trial before a single jury and each defendant's conviction of seven counts of malicious destruction of personal property (MDOP) over $100, MCL 750.377a; MSA 28.609(1), and three counts of arson of personal property over $50, MCL 750.74; MSA 28.269,1 as charged. Each defendant was sentenced to three years' probation, with Martin to serve his first year in jail, and Cook to serve her first six months in jail. Martin and Cook were both represented by the same attorney throughout their case. They appeal on the issues of conflict of interest of counsel and ineffective assistance of counsel. This Court denied defendants' motions for bond pending appeal. We affirm.

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I
This case stems from a series of arson and property destruction incidents over a two-year period to business-related personal property of Cook's former husband, Michael Cook (hereafter, "Michael"). Michael owned a tile drainage business, which laid tile for farms in the Clinton County area. The business operated out of a shop adjacent to the Cooks' home. Martin also owned a drainage business, although his work related to ditch drainage. As a result of their business association, Martin and his wife socialized with the Cooks. Although initially Martin was friends with both Cook and Michael, at some point, he became very involved with Cook. There was no evidence of a sexual relationship. In 1994, the Cooks became involved in a bitter divorce. Evidence from the Cooks' divorce trial, admitted in this trial, documented hundreds of phone calls between Cook and Martin in 1994: 93 in May, 114 in June, 105 in July, and 135 in August. In 1995, Cook called Martin long distance on his cellular phone as often as fourteen times a day. Both Martin and Cook admitted to the phone calls, but denied any sexual relationship. These incidents continued throughout 1995 and 1996. The Cooks' divorce was contentious, with disagreements over property distribution and custody of the Cooks' two children. The divorce issues went to trial and the divorce apparently was finalized in late 1996. The alleged MDOP and arson incidents occurred primarily during the period the Cooks were involved in their divorce proceedings. Beginning November 1994, Michael experienced a series of incidents of personal harassment and destruction of his tiling business property: signs were posted identifying him as a "wife beater," spools of tile (coiled PVC) at job sites were set afire, and tiling machinery and back-hoe equipment were damaged. Michael told the police he suspected Cook and Martin. These incidents continued throughout 1995 and 1996. In November 1996, a law enforcement team began surveillance at some of Michael's work sites. On December 17, 1996, the surveillance team saw Martin's vehicle near one of Michael's job sites in Ionia County and later learned that a spool of tile was set afire at the site that same evening. The police obtained search warrants for Martin's and Cook's homes, which were executed the following day. During questioning, Martin admitted setting the tile afire at the Ionia County site and admitted that Cook was with him, but claimed that she never left the vehicle and that she knew nothing about what he had done until afterwards. Cook gave police the same information during questioning. Martin and Cook denied any involvement in the alleged arson, property destruction, and harassment incidents in Clinton County. Martin pleaded no contest to a charge of MDOP in Ionia County involving the arson of tile on December 17, 1996. Martin and Cook subsequently were charged with ten counts of arson and property destruction in Clinton County in 1995 and 1996 including puncturing back-hoe tires, burning rolls of drainage tile (various incidents), damaging a back-hoe, damaging a tiling machine, destroying tractor tires, and destroying a building (shooting out the windows of Michael's home), and destroying

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trees and shrubs. Following a five-day jury trial on June 10-12 and June 17-18, 1998, each defendant was convicted of all ten counts. II Defendants first claim that their defenses were prejudiced by their joint representation by the same attorney. We disagree and find that defendants waived their right to separate counsel, but that even if they did not, their claims of prejudice are without merit. Multiple representation of codefendants by one attorney can lead to a conflict of interest sufficiently serious to constitute ineffective assistance of counsel. People v Lafay, 182 Mich App 528, 530; 452 NW2d 852 (1990). Such a conflict is not presumed or implied; the defendant has the burden of proving a prima facie case of ineffective assistance of counsel. Id. The defendant must show the existence of an actual conflict of interest that adversely affected his representation. Id. The defendant need not show actual prejudice. People v Rhinehart , 149 Mich App 172, 176; 385 NW2d 640 (1986). MCR 6.005(F) establishes a procedure to protect a defendant's right to the effective assistance of counsel in multiple representation situations. Lafay, supra at 531; People v Kirk , 119 Mich App 599, 603; 326 NW2d 145 (1982). The court's failure to follow the procedures of MCR 6.005(F) is not, in itself, error requiring reversal. Lafay, supra at 531. A defendant must show a conflict of interest that actually affected the adequacy of counsel's representation. Kirk, supra at 603. The first issue in this case is whether defendants waived their right to separate counsel. Defendants contend that the court failed to state on the record, its findings or reasons that there was no conflict of interest, as required by MCR 6.005(F)(3), and, therefore, there was not a valid waiver. MCR 6.005(F) provides in relevant part: The court may not permit the joint representation unless: (1) the lawyer or lawyers state on the record the reasons for believing that joint representation in all probability will not cause a conflict of interests; (2) the defendants state on the record after the court's inquiry and the lawyer's statement, that they desire to proceed with the same lawyer; and (3) the court finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding. In this case, the record reflects two separate inquiries into the issue of conflict of interest. While these inquires may not follow the sequence of the inquiry set forth in the court rule, we conclude that the substance of the inquiry met the requirements of MCR 6.005(F). In the first inquiry, eight months before trial, defendants' attorney stated on the record: I've covered [the conflict of interest] with my clients. I've given it to them in writing, orally, every time we meet . They've indicated, in no uncertain terms, they believe

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their defenses are compatible and they want me to represent both of them. They don't see the conflict. [Emphasis added.] Cook and Martin each stated on the record that they agreed with the above statement. The court then confirmed that defendants' attorney had explained the conflict of interest situation, probing further and again explaining to defendants that if they had "conflicting interest[s]" it would be a potential conflict of interest for the same attorney to represent them both. Each defendant answered that their attorney had explained the conflict of interest situationaccording to Martin, "very thoroughly". In the second inquiry, the court indicated that the conflict of interest had been covered in conferences in chambers and that defense counsel did not see a conflict of interest. Counsel stated that he had spoken with defendants since the inception of the case about conflict of interest and that he advised them of the preference for separate counsel. Further, he had discussed this with defendants and he did not see any inconsistent theories of defense. As in the first inquiry, the defendants separately stated that they nevertheless wanted him to represent them both. Counsel stated on the record his reasons that he did not perceive a conflict of interest, i.e., there were no inconsistent theories of defense. See MCR 6.005(F)(1). Both defendants stated that they wanted him to represent them. See MCR 6.005(F)(2). After the court probed this matter with defendants, the court stated that the parties did not see any conflicts and wanted counsel to continue representing them, and, so, the court was satisfied that the matter had been addressed. See MCR 6.005(F)(3). We conclude that the requirements of MCR 6.005(F) were met. Defendants' reliance on People v Villarreal, 100 Mich App 379; 298 NW2d (1980), lv den 411 Mich 899 (1981), does not convince us otherwise. In this case, because trial counsel apprised defendants of the risks of multiple representation, any duty on the part of the trial court implicated by Villarreal was obviated. Even if defendants did not waive their right to separate counsel, there is no error requiring reversal. Defendants have not shown an actual conflict of interest that adversely affected their representation. Defendants contend that the same three factors cited in Villarreal, supra at 390, exist in this case and denied defendants the effective assistance of counsel: (1) counsel could not argue each defendant's specific link to the evidence, (2) cross examination of witnesses was inhibited, and (3) counsel could not demarcate each defendant's relative culpability. First, defendants' argument that their representation was adversely affected by the different degrees of culpability and counsel's inability to point out that Cook was merely present at one or two of these incidents is without basis. Both defendants denied involvement in any of the charged incidents, as well as nearly all the uncharged incidents; thus, there was no issue of relative culpability from defendants' point of view. With regard to the one similar incident in which defendants admitted involvement, the evidence and counsel's argument clearly indicated that Cook was less culpable. Martin admitted that he set the

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fire. Both prosecution and defense witnesses, including each defendant, indicated that Cook was "merely present" at this incident and did not participate. Second, defendants' argument that counsel could not argue their specific links to the evidence is likewise without merit. In closing argument, counsel addressed each defendant separately. Counsel emphasized that there was not the slightest evidence against Cook and none of the seized evidence was from her home, whereas Martin had some items that could be linked to the incidents. Counsel referred to Cook as a "dear [sic] in the headlights" and argued that there was no evidence against her: "She makes no statements, nothing, zero, zip. There is nothing". Counsel distinguished Martin's situation: "What do we have on Gary? He is not her. He had some things at his house that could have done this". Counsel pointed out each defendant's specific links to the evidence, but argued that there was no case against either of them. Third, there is no merit in defendants' claim that their representation was inadequate because the cross-examination of witnesses was inhibited by the multiple representation and because numerous "admissions" would not have been admissible in separate trials. Defendants have n ot shown how cross-examination was inhibited and defendants' blanket assertion that the various "admissions" would not have come in, in separate trials, is unsupported. Some of the challenged statements were ruled admissible by the trial court, e.g., statements to the police. Further, these statements are generally taken out of context to establish defendants' claim on appeal, without relating them to the charged incidents. Some of the "admissions" related to uncharged incidents and to the arson to which Martin had pleaded no contest. The trial court denied defendants' motion to suppress evidence relating to the one incident Martin admitted committing, finding that the evidence was "relevant to the issues of scheme, plan and identity". The fact that these statements were admitted does not establish that defendants' representation was inadequate. For the most part, this trial was a credibility contest. Defense counsel's strategy apparently was two-fold (1) to attack the credibility of law enforcement and establish that the police work in this case was substandard; and (2) to present defendants as open and honest, admitting to acts they had committed, but denying any involvement in other incidents, positing that Michael Cook, the victim, may have committed the charged acts himself. Counsel made few objections during the prosecution witnesses' testimony. However, he filed pretrial motions to suppress evidence, including Martin's admissions to police, which the court denied for the most part. The trial court specifically ruled that Martin's admissions to the police were admissible. Counsel cannot be faulted for failing to object to these admissions at trial. Although seemingly incriminating testimony and other evidence was admitted in the prosecution's case, it was "explained" by defendants, which was in keeping with the defense strategy. Cook and Martin contradicted the police testimony, claiming that the police reports were inaccurate, that the police had twisted the facts, and that defendants never made the majority of the admissions attributed to them. There is nothing to suggest that the defense strategy, or the court's evidentiary rulings, would have changed had there been separate trials and juries such that the challenged testimony and evidence would not have been admitted. Defendants have not shown that their representation was inadequate because of a conflict of interest. -5

III Defendants next argue ineffective assistance of counsel on four separate grounds, none of which has merit. We first note that this claim was not advanced before the trial court thus, this Court will consider the claim only to the extent that claimed mistakes of counsel are apparent on the record. People v Barclay, 208 Mich App 670, 672; 528 NW2d 842, lv den 449 Mich 900 (1995). To justify reversal on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the representation so prejudiced the defendant that he was denied a fair trial. People v Pickens (On Remand), 446 Mich 298, 302-303; 521 NW2d 797, reh den sub nom People v Wallace, 447 Mich 1202 (1994); People v Ho , 231 Mich App 178, 191; 585 NW2d 357 (1998). Defendants were not denied the effective assistance of counsel on any of four bases claimed. Additionally, counsel was not ineffective for failing to pursue a mere presence defense and jury instruction on behalf of Cook. Defendants first contend that counsel was ineffective for failing to question or challenge a juror regarding her knowledge of the case. A criminal defendant has a right to a fair and impartial jury. US Const, Am VI; Const 1963, art 1,

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