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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KARON MALCOM X COLE, Defendant-Appellant.

UNPUBLISHED February 28, 2012

No. 300695 Wayne Circuit Court LC No. 10-006204-FC

Before: OWENS, P.J., and JANSEN and MARKEY, JJ. PER CURIAM. Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 7 to 30 years' imprisonment for the armed robbery conviction and two years' mandatory imprisonment for the felony-firearm conviction. Defendant appeals as of right. We reverse the trial court's order granting defendant a new trial and affirm defendant's convictions and sentences. Defendant held Charles Wickliffe at gunpoint in Wickliffe's van in the parking lot of Capitol Foods supermarket in Detroit and stole about $180 from him. After his trial, defendant filed this appeal claiming, among other things, ineffective assistance of counsel. This Court remanded to the trial court for the purpose of allowing defendant to move for a new trial based on ineffective assistance of counsel, and for the trial court to make findings of fact and a determination on the record, but retained jurisdiction. People v Cole, unpublished order of the Court of Appeals, entered June 14, 2011 (Docket No. 300695). Defendant moved for a new trial in the trial court and, after the Ginther1 hearing was concluded, the trial court granted defendant's motion on the ground that defendant had not received effective assistance of counsel. Defendant filed a motion to dismiss his appeal, stating that the new trial had afforded him complete relief with respect to all of his claims. This Court denied defendant's motion and stated the trial court's opinion and order granting defendant a new trial would be reviewed along with defendant's issues on appeal. People v Cole, unpublished order of the Court of Appeals, entered October 28, 2011 (Docket No. 300695).

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People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

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I. PURPORTED RECORDING OF DEFENDANT'S INTERROGATION Defendant first argues that his right to due process was violated when the police potentially destroyed a recording of his interrogation by police, and that he did not receive effective assistance of counsel because his attorney failed to obtain a copy of the recording, if one existed, or request an adverse inference jury instruction if such a recording existed but had been destroyed. We disagree. Generally, an issue must be raised, addressed, and decided by a trial court in order to be preserved for appeal. People v Metamora Water Serv, Inc, 276 Mich App 376, 383; 741 NW2d 354 (2007) (citing Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005)). Here, defendant raised no objection at trial to the absence or destruction of a recording of his interrogation, nor did he request an adverse inference jury instruction. Therefore, this issue is unpreserved. However, defendant's claims of ineffective assistance of counsel with respect to this issue are preserved because he moved for a new trial, and a Ginther hearing was held. Questions of constitutional law are reviewed de novo on appeal. People v Armstrong, 490 Mich ___, ___; ___ NW2d ___ (2011) (slip op at 4) (citing People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004)). However, when constitutional claims are unpreserved, they are reviewed for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). An ineffective assistance of counsel claim is a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." Id. The trial court's findings of fact are reviewed under a clearly erroneous standard. Id. (citing MCR 2.613(C); MCR 7.211(A)(3)(a)). Constitutional questions involved in ineffective assistance of counsel claims are reviewed do novo. Id. A. DESTRUCTION OF THE VIDEOTAPE "[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). However, this standard is only applied when evidence is known to be favorable to the defendant. Id. A different standard applies when the evidence suppressed or destroyed is only potentially exculpatory. In those cases, it is the defendant's burden to show that the police acted in bad faith by destroying the evidence. Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). This higher standard is applied because courts are unwilling to impose on the police an absolute duty to preserve everything that might possibly be favorable to a defendant, and because courts face the difficult task of "`divining the import of materials whose contents are unknown and, very often, disputed.'" Id. (quoting California v Trombetta, 467 US 479, 486; 104 S Ct 2528; 81 L Ed 2d 413 (1984)). A finding of bad faith rests on whether the police knew of the apparent exculpatory value of the evidence at the time it was destroyed. Id. at 56.

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We first note police have no constitutional duty to record conversations with a defendant. People v Fike, 228 Mich App 178, 183-186; 577 NW2d 903 (1998). However, if a recording that could potentially exculpate a defendant was, in fact, made, destruction or suppression of it would be subject to the standard of Youngblood. Here, because the contents of a recording of defendant's interrogation, if one is or ever has been in existence, are disputed, the Youngblood standard, requiring a showing of bad faith on the part of the police, applies. Officer Rico Hardy, the officer in charge of defendant's case, testified as follows, with respect to defendant's interrogation, during the preliminary examination: Q. Was this taped; is there any other record made of your contact with my client? A. Not that I know of, no. Q. Okay. So, you don't have a taping equipment or an environment where you can actually tape to verify what happened? A. No, it could have been at the Southwest District. Q. Is that where you were the Southwest District? A. Yes. Q. Okay, you could have taped it but you didn't? A. I don't tape it, I think the room is automatically taped already. Q. Okay. So you're saying there is a recorded record of what happened on this day in question when you were talking to my client? A. It might be, it last just ten days. Q. Okay. And, in cases where cases are brought, aren't these provided as a matter of course, to the prosecution and to defense counsel? A. Not all the time. Q. So, you may have it, we just haven't been provided it through a discovery request, fair to say? A. I don't have it, no. Q. You don't have it. If there is such a record, and I'm sure the Court will order it; but I'm just asking you, if there is such a court record, you would give that to counsel, both of us; is that correct? A. Yes. -3-

Hardy then testified at trial: Q. Now you said that there was an interrogation room when you met with my client, is that correct? A. Correct. Q. And when you met with my client in the interrogation room

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