Tuesday, June 20, 2000

06202000 - Senator David Jaye - Senate Reprimand For Drunk Driving Offense (March 05, 2000) - Stripped Of Committee Assignments - Macomb County





SENATOR DAVID JAYE POSTS:

















 



 
On June 12, 2000, Senator David Jaye pleaded guilty to a drunk driving offense March 2000]. On June 20, the Senate stripped Jaye of  his committee assignments . He was also barred from state-paid business travel that would take him out of state, until next year.

Senator Jaye's assignments were restored to him on March 27, 2001 after he completed an alcohol rehab program. Less than three weeks later, Jaye was arrested for assaulting his girlfriend [April 12, 2001].











State senator arrested for drunken driving
The Blade
Toledo, Ohio
March 6, 2000
Macomb Township, Mich. [AP] - State Sen. David Jaye was arrested on suspicion of drunken driving and failed a Breathalyzer test early Sunday, a sheriff's inspector said.

Mr. Jaye, who previously has faced drunken driving charges, was stopped by sheriff's deputies around 1:30 a.m. on M-59 and released on $100 bond about 6 a.m. Sunday, Macomb County sheriff's Inspector Mark Hackel said.

His blood-alcohol content was not disclosed.

Mr. Jaye's attorney, Rob Huth, said he hadn't had a chance to review the sheriff's department report.

"It is my understanding that his blood-alcohol was right at or around the legal limit adn there may be mitigating circumstances. If not, I expect him to square up and take responsibility for his actions," Huth said.

"I have been a strong supporter of and always voted for tough drunk driving laws that we are all subject to," Jaye said in statement released by his office.

"I am seeking counsel from my family and friends and ask for their prayer during this trying time."

Mr. Jaye, a Washington Township Republican, served three weekends in jail in 1993 for drunken driving.

He was ticketed in 1984 in Sterling Heights for operating a vehicle while impaired by liquor.
 
 


















Lawyer says Jaye had been drinking
He questions if Senator was drunk at his arrest
March 7, 2000
Detroit Free Press
State Sen. David Jaye's lawyer said Monday that the veteran lawmaker had been drinking before he got behind the wheel early Sunday. The question, he said, is whether Jaye was driving drunk at the time he was arrested. "He regrets the incident," said Jaye's lawyer, Robert Huth. "He wishes he had not put himself in a position to be arrested." Jaye said Monday that he was troubled by a recent divorce and the...



















Jaye Stripped Of Committee Assignments
Senator Pleads Guilty To Drunken Driving Charge
Click On Detroit
June 20, 2000
LANSING -- State Sen. David Jaye was stripped of his committee assignments Tuesday, a week after pleading guilty to a misdemeanor drunken driving charge.

Senate Majority Leader Dan DeGrow, (R) Port Huron, said Jaye will give up all committee assignments for the rest of the year. He will also be barred from state-paid business travel that would take him out of state, until next year.

"The Senate needed to take action," DeGrow said. The decision was his alone, he added.

Jaye, 42, is a Republican from Macomb County's Washington Township was arrested March 5 in Macomb Township and charged with second-offense operating under the influence of alcohol.

A test showed his blood-alcohol level was .11, above the legal limit of .10 for drunken driving.

Jaye pleaded guilty to a misdemeanor count on June 12, which carries a five- to 100-day jail sentence and fine. His license may also be suspended or revoked at his sentencing, set for July 13.

After his arrest Jaye said he has maintained a 100 percent attendance record in the Senate while attending alcohol abuse treatment. And, the senator says he plans to have family and friends drive him to work if he loses his license because of the ordeal.



















Jaye stripped of committee posts 
Drunken-driving conviction costs Macomb senator
Detroit News, The (MI)  
June 21, 2000  
LANSING -- State Sen. David Jaye, R-Washington Township, was stripped of his committee assignments Tuesday, eight days after pleading guilty to his third drunken-driving offense in 15 years.

"The Senate needed to take action," Majority Leader Dan DeGrow, R-Port Huron, said. He removed Jaye as chairman of the Senate Hunting, Fishing and Forestry Committee for the rest of the year. He's also kicked off four other panels.

Since 1975, no lawmaker has been stripped of committee assignments, though a half-dozen others resigned their seats rather than face expulsion after felony convictions.

The punishment means Jaye will only be able to vote on legislation and not shape it in the Senate's committees.

Jaye, 42, said he takes "responsibility" and "sincerely regrets the embarrassment" to his family, friends and constituents.

"It's regrettable and sad, but I think they're doing the right thing by punishing him," said Forrest Walker, 57, a Shelby Township constituent of Jaye's.

He will be sentenced July 13.




















Senator Loses Committee Jobs
Chicago Tribune
June 21, 2000
LANSING, MICHIGAN — State Sen. David Jaye was stripped of his committee assignments Tuesday, a week after pleading guilty to a misdemeanor drunken driving charge.

Senate Majority Leader Dan DeGrow (R-Port Huron) said Jaye will give up all committee assignments for the rest of the year and be barred from state-paid out-of-state business travel until next year.

"The Senate needed to take action," DeGrow said, adding that the decision was his alone.

Jaye, a 42-year-old Republican from Macomb County's Washington Township, was arrested March 5 and charged with second-offense operating under the influence of alcohol.

A test showed his blood-alcohol level was 0.11, slightly above the legal limit of 0.10 for drunken driving. On June 12, Jaye pleaded guilty to the misdemeanor count, which carries a 5- to 100-day jail sentence and fine. His license may also be suspended or revoked at his July 13 sentencing. Under DeGrow's sanctions, Jaye no longer will be the chairman of the Senate's Hunting, Fishing and Forestry Committee. He also will lose his seat on three others: Economic Development, International Trade and Regulatory Affairs; Families, Mental Health and Human Services; and Financial Services.

















Senator stripped of privileges facing jail for driving drunk, he's sidelined at job
Detroit Free Press
June 21, 2000
While state Sen. David Jaye waits to learn how much freedom he could lose for his third drunken-driving offense, he has been stripped of all committee assignments and barred from state-paid business travel for the rest of the year. Senate Majority Leader Dan DeGrow, a Republican from Port Huron, made the decision Tuesday to levy the sanctions after consulting with some Senate members. DeGrow informed Jaye. The sanctions were in effect Tuesday. He said Jaye was disappointed but...



















David Jaye: Senate punishments appropriate for offense
Detroit Free Press
June 22, 2000
State Senate Majority Leader Dan DeGrow took entirely appropriate action in stripping fellow Republican Sen. David Jaye of committee assignments because of Jaye's guilty plea to a charge of drunken driving. DeGrow also grounded Jaye, forbidding him from state-paid travel outside Michigan. DeGrow's actions stop short of depriving Jaye's constituents of their chosen senator but stand up for the integrity of the chamber at a time when cynicism about politics...



















Punishment fits the crime
Herald-Palladium, The (St. Joseph, MI)
June 23, 2000 
State Sen. David Jaye has paid a high, but fair, price for his run-ins with the law concerning drunken driving.

Jaye recently pleaded guilty to his third drunken driving offense.

Jaye, a longtime Republican lawmaker from Washington Township in McComb County, was stripped of committee assignments this week by Senate Majority Leader Dan DeGrow. Jaye, a Republican, was removed as chairman of the Senate Hunting, Fishing and Forestry Committee. He also was kicked off of four other panels.

DeGrow's action marks the first time since 1975 that a state lawmaker has been stripped of committee assignments (though a half-dozen others have resigned their seats in that time rather than face expulsion after felony convictions). Jaye is also forbidden from state-paid travel outside of Michigan.

"The Senate needed to take action," DeGrow said.

He is exactly right. Michigan, as part of a nationwide movement, has been cracking down on drunken driving offenses more and more. The Legislature could not maintain credibility on the issue without censuring one of its own who has repeatedly placed others in danger with his reckless behavior. This is Jaye's third offense in 15 years. He faces sentencing July 13 and it is expected he'll draw jail time, a first for a sitting senator.

Jaye said he takes responsibility for his actions and "sincerely regrets the embarrassment" to friends, family and constituents. Jaye's lawyer asked for leniency from the Senate, saying that Jaye is in treatment for his acknowledged drinking problem, and that DeGrow should support Jaye, not punish him.

But DeGrow must be more concerned with the integrity of the Senate chamber than with any personal feelings about Jaye. To look the other way would have set a terrible example.















Taking on an easy target is no real leadership
Record-Eagle
June 29, 2000
Toward the end of the latest legislative session, the leader of the Senate determined that a fellow senator had so embarrassed their institution that he had to be disciplined.

Sen. Dan DeGrow, the leader, stripped Sen. David Jaye, the embarrassment, of his committee assignments. That left Jaye with the ability to vote, thus representing his constituents, but without any real power.

DeGrow took this action because Jaye had pleaded guilty to a misdemeanor, second-offense operating under the influence of alcohol. "The Senate needed to take action," DeGrow said, adding that the decision was his alone.

Jaye, a 42-year-old Republican from Macomb County's Washington Township, has embarrassed the Senate before. He is the one you can count on to have the most extreme position on almost any bill and to make sure that everyone knows how he feels about things.

If there is an issue on which everybody can agree, it is that drunken driving is not good. The liquor companies discourage it; the laws prohibit it; the editorial writers condemn it without fear of getting a letter in rebuttal.

So it should come as no surprise that the senate leader also is appalled at the action of one of his colleagues. The question remains, however, if what he did was fair or wise or even useful.

Jaye, after all, is paying the price that others pay when they run afoul of the law. He will lose time and money; he could lose his license; he may even end up in jail.

Some people lose their jobs after a drunk driving conviction, but most do not. Most employers, especially those who consider themselves somewhat enlightened, understand that alcoholism is a condition best treated with treatment. If the courts handle the punishment, which they appear to be doing in Jaye's case, then the job of the employer is not to add to the punishment but to do something to prevent it from happening again.

The Senate, in this case, is not even Jaye's employer. He is employed by his constituents and they, for reasons it has been hard to understand, have consistently given him the job he wants in Lansing.

There appear to be no rules guiding the leader's decision. He just felt that he had to do something, so he did it. But that's not fair to voters, who never were told that they might be throwing away their vote if their candidate somehow crossed an ethical line that nobody had yet drawn.

And if DeGrow or other legislative leaders really want to do something about embarrassing behavior, they can expand their horizons into areas that are not already being punished by another branch of government.

They could go after the legislators who waste our time and money proposing bills to name the official state this and the official state that. Nobody needs them, nobody wants to waste the time and money. They can go after the intransigents who hold up all of the state's business just so they can lobby for a particular favorite cause. It happened with the telecommunications bill and DeGrow declined to strip that committee chairman of his powers, powers that clearly he was abusing to the detriment of everybody in the state.

Leaders should operate under clear rules, not make them up as they go along. They should apply the rules fairly with an eye toward setting a consistent standard. Slapping a drunk driver is easy. Taking on the more damaging excesses in the Legislature is the real test of leadership.















State senator jailed for drunken driving
Muskegon Chronicle, The (MI)
July 14, 2000 
At his sentencing for his latest drunken driving conviction, State Sen. David Jaye said he has turned his life around and faced his alcohol problem.

“I’m a better person, a more positive person,” Jaye said. “I’ve turned the corner, judge.”

Jaye was sentenced Thursday morning to 45 days in jail. District Court Judge Herman Campbell also ordered him to pay more than a $1,000 fine and attend an alcohol counseling program. Jaye’s car will be immobilized for 3 months.

Campbell said he believed Jaye was sincere, but noted he had stopped drinking after a 1993 drunken driving conviction in which Jaye served 10 days in jail.

“Your recidivism has obviously been magnified by your position as a state senator,” Campbell said.

The 42-year-old Republican from Macomb County’s Washington Township was arrested March 5 in Macomb Township and charged with second-offense operating under the influence of alcohol.

A test showed his blood-alcohol level was 0.11, slightly above the legal limit of 0.10 for drunken driving.

Jaye was stripped of his committee assignments last month after pleading guilty to the misdemeanor drunken driving charge.















Jaye back on job after jail term
The Argus-Press
August 19, 2000
Lansing, Mich. [AP] - State Sen. David Jaye left the St. Clair County Jail early Friday and held a late-afternoon news conference in his senate office to say he's back on the job.

"Today I am once again taking personal responsibility for my actions," said Jaye, R-Washington Township. "I've become a very strong example of how serious drunken driving is and how serious the consequences are."

Jaye was arrested March 5 in Macomb Township on his second drunken-driving offense. While a state representative in 1993, Jaye spent 10 days in jail after a drunken-driving conviction. This time, he was sentenced to 45 days but was released after 35 after being given time off for good behavior.

Jaye has supported bills that took away time off for good behavior for prison inmates convicted of rapes, murders and serious assaults. He stands by that votes.

During his time in jail, Jaye said he was in the kitchen most days by 4:30 a.m., mopping floors, preparing food and washing dishes for 12 or 16 hours. He said he didn't sleep well a lot of nights, especially after two jail workers were assaulted by inmates.

"It was frightening," he said of his stay. "Jail is a very serious place."

Jaye continued to receive his annual $56,981 salary while in jail, but said he is working with his lawyers to donate some of it to worthy causes. He has been stripped of his Senate committee assignments but will get them back on Jan. 1 if he successfully completes an alcohol rehabilitation program.

Jaye enrolled in a counseling program shortly after his arrest. His two-year probation will require him to continue attending counseling sessions and to attend Alcoholics Anonymous meetings twice a week.

He said some inmates were in jail only because they couldn't pay their fees and court costs, and probably could be spending their time more effectively doing community service. He'd also like to require inmates to get vocational training, a high school diploma or equivalent degree before they can leave jail.

Jaye said he's ready to get working again o issues such as approving school vouchers and fighting a General Motor Corp. lawsuit filed on behalf of affirmative action admission programs at the University of Michigan.

He said most of his constituents know he's contrite, but he understands there could be repercussions to his drunken driving convictions.

"I have done more damage to myself drinking and driving that all my political opponents have done combined," he said. "The worst part for me has been all the pain and heartache my family has faced...my friends and supporters have faced.

















Senator Jaye Gets Assignments Restored
Republican Stripped Of Duties After Pleading Guilty To Drunken Driving
Click On Detroit
March 27, 2001
State Sen. David Jaye had his committee assignments restored Tuesday after completing an alcohol rehabilitation program.


Jaye, a Republican from Macomb County's Washington Township, Mich., was stripped of his Senate duties in June after pleading guilty to drunken driving. .He was charged with driving on a restricted license six months later, but was cleared of those charges last week

Senate Majority Leader Dan DeGrow restored Jaye as Chairman of the Senate Hunting, Fishing and Forestry Committee.

Jaye will also return to his membership on the Economic Development, International Trade and Regulatory Affairs Committee, the Families, Mental Health and Human Services Committee and the Senate Financial Services Committee.

Neither DeGrow nor Jaye commented on the restored positions.















Hearings to resume whether Sen. Jaye should be expelled
The Argus-Press
May 9, 2001
Lansing, Mich. [AP] - A police officer from Florida, where state Sen. David Jaye is accused of hitting his fiancée, testified that the woman was cut and still bleeding when he arrived at the scene.

"She said he's hit her in the past," Corp. Robert Macarelli of the Lee County sheriff's office said Tuesday. "She said she wanted him to stop beating her."

Jaye was arrested April 12 in Florida after a dispute with Sonia Kloss and spent the night in the Lee County Jail. Jaye denied he struck Kloss, and she has recanted any accusations against him.

The officer's comments came as a special state Senate committee held its first full hearing on Jaye's right to remain in the Senate. The hearing was to resume Wednesday.

Jaye attended the committee hearing with three attorneys but didn't comment. He issued a letter Tuesday complaining that the hearing violated his civil rights and right to due process.

When it concludes its investigation, the six-member bipartisan committee could recommend that Jaye be expelled, censured or reprimanded.

In the letter he issued, Jaye argued that he hadn't had enough time to prepare and complained about "capricious and arbitrary committee rules" that would prevent discussion of their legislators' conduct besides his own.

The resolution recommending that Jaye be expelled cites a series of drunken driving convictions, a pending domestic battery charge in Florida and what it termed "a recurring pattern of personal misconduct."

Jaye said in his letter that he is owed a presumption of innocence on the domestic battery charge. He promised Sunday to resign if the Florida court convicts him, but he said he expects to be acquitted and accused Senate opponents of violating his rights.

At the hearing Tuesday, Bay County Prosecutor Joseph Sheeran said he may resurrect the charges stemming for a dispute last Nov. 19 at a Bay County gas station between Jaye and Kloss.

Jaye, a Republican from Macomb County's Washington Township, was never charged with assault in the Bay County incident. Prosecutors did charge him with violating the restrictions placed on his driver's license, but the charge was later dropped because Jaye had not been read his Miranda rights.

Meanwhile, a Florida judge on Tuesday delayed Jaye's hearing on the domestic battery charge for one week to give prosecutors more time to question witnesses.

Tony Schall, a spokesman for the state attorney's office in Florida, said the hearing is now scheduled for May 15. On that date, prosecutors will decide whether to retain the domestic violence charge, amend the charge or drop it, Schall said.
 





                   

Posted by at No comments:

Friday, June 16, 2000

06162000 - Mayor Gerald "Ajax" Ackerman - Sentenced - Port Huron

Also See:


Port Huron Mayor Gerald "Ajax" Ackerman charged for sexual assaults [April 07, 1999]






 
 







Michigan
Ex-mayor draws long prison term
Wilmington Morning Star
June 20, 2000
Port Huron, Mich. - The former mayor, a tattooed biker once lauded for beating drugs and serving as a role model for troubled youth, was sentenced Monday to at least 18 years in prison for sexual misconduct involving three young girls.

St. Clair County Circuit Judge Pete Deegan sentenced Gerald "Ajax" Ackerman to 18 to 36 years on one count of first-degree crminal sexual conduct for an act taht took place in 1999. Under truth-in-sentencing guidelines, he must serve the minimum sentence.

Mr. Ackerman, 43, also was sentenced to 25 to 38 years of four additional counts of first-degree criminal sexual conduct, acts that took place in 1998, said St. Clair county Assistant Prosecutor Mona Armstrong. Truth-in-sentencing doesn't apply to those counts.
 
 











Ex-Michigan mayor gets up to 38 years in sex case
The Blade
Toledo, Ohio
June 20, 2000

Port Huron, Mich. [AP] - Former Mayor Gerald 'Ajax" Ackerman was sentenced yesterday to up to 38 years in prison after being found guilty of having sex with underage girls.

Meanwhile, the building where some of the sexual misconduct allegedly took place is covered in weeds and dandelions. Just over a year ago, youngsters gathered to play pool, hang out with friends, and listen to bands play at the Clear Choices building.

The brainchild of Ackerman has remained closed since his April 6, 1999, arrest on charges he sexually molested underage girls. He resigned as the city's mayor a day later.

St. Clair County Judge Pete Deegan sentenced Ackerman, 43, yesterday for his convictions on 10 felony counts of criminal sexual conduct in his retrial last month. Ackerman received 25-38 years in prison on four of the first-degree criminal sexual conduct charges - acts that took place in 1998 said Mona Armstrong, St. Clair County assistant prosecutor.

On the fifth count of first-degree criminal sexual conduct, Ackerman received 18 - 36 years because the act occurred in 1999. That conviction must follow truth-in-sentencing guidelines, which means Ackerman won't be released for good behavior and must serve the minimum sentence, Ms. Armstrong said.

Ackerman was found guilty of having sex and oral sex with 8- and 12-year-old girls, as well as fondling them and taking nude photos of them in sexually explicit positions. He also was found guilty of forcing an 11-year-old girl to fondle him.

A jury convicted Ackerman of nine counts of indecent exposure last October but deadlocked on the charges on which he was retired. He was sentenced to a year in jail on the indecent exposure conviction.

Clear Choices was founded by Ackerman in 1995 as a place for teenagers and young adults to go to escape the streets and troubled homelives.

Now that Ackerman has been sentenced to prison, it is no known what will happen to the Clear Choices building or the programs. The building was bought in july 1998, after the center's original building was turned into a parking lot in 1997.

According to the county's Register of Deeds office, no one has been making payments on the building, which is deeded to Clear Choices, Inc. In March, Citizens First Savings bank, which hold the mortgage, foreclosed on the building and tried to auction it off. No one bid on it.
 
 



Posted by at No comments:

Saturday, June 10, 2000

06092000 - Lionel Villarreal - OIDV Offender Update

OFFENDER: LIONEL VILLARREAL



MURDERED NICOLE SANCHEZ [DAUGHTER OF OFFICER VINCE SANCHEZ AND BELIA SANCHEZ]http://michiganoidv.blogspot.com/1999/09/nicole-daughter-of-detective-lashawn.html


















Posted by at No comments:
Location: Saginaw, MI, USA

Friday, June 9, 2000

06092000 - Lionel Villarreal - Sentenced for murder of Nicole Sanchez









Posted by at No comments:

Tuesday, June 6, 2000

06062000 - Sheriff William Hackel - Appeal - Macomb County SD [Docket 227737]

Also See:
[Sheriff] William Hackel - Masonic Temple Head of Security - Registered sex offender
August 26, 2013
[Sheriff] William Hackel - Denied new trial
September 19, 2007
[Sheriff] William Hackel - Registered sex offender - Released from prison
April 24, 2005
Sheriff William Hackel - Sentenced
May 15, 2000
Sheriff William Hackel - Trial: Convicted
April 17, 2000
Sheriff William Hackel - Charged w/ CSC
October 11, 1999




STATE OF MICHIGAN COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN
Plaintiff-Appellee,

V.

WILLIAM HARRY HACKEL
Defendant-Appellant


Before: Whitbeck, C.J., and Hood and Kelly, JJ.
PER CURIAM.
UNPUBLISHED December 20, 2002

No. 227737 Isabella Circuit Court
LC No. 99-009148-FY

Defendant was convicted, following a jury trial, of two counts of third-degree criminal sexual conduct, MCL 750.520d(1)(b). He was sentenced to two concurrent terms of three to fifteen years’ imprisonment and appeals as of right. We affirm.

Defendant was convicted of sexually assaulting the victim while they attended a conference of the Michigan Sheriff’s Association held at a casino resort. Defendant, who had been the Macomb County Sheriff for twenty-four years, admitted engaging in sexual relations with the victim, but claimed that it was consensual. Defendant’s theory of the case was that the rape accusation was fabricated because the victim had a monetary motive.

Defendant first alleges that the trial court erred by not permitting the victim’s mother to be examined in camera about her knowledge of any alleged past accusations of sexual assault by the victim. We disagree.*1 The rape-shield statute, MCL 750.520j, was aimed at thwarting the impeachment of a complainant’s testimony with evidence of the complainant’s past consensual activities. People v Adair, 452 Mich 473, 480; 550 NW2d 505 (1996). At the same time, however, the rape-shield statute could presumably apply when evidence of a complainant’s nonconsensual sexual activities is offered for the same type of impermissible character purpose prohibited under the statute as a complainant’s consensual sexual activities. People v Williams, 191 Mich App 269, 272; 477 NW2d 877 (1991). The rape-shield statute has been said to bar "testimony regarding sexual subjects involving the complainant, unless such testimony falls outside the scope of the statute." People v Ivers, 459 Mich 320, 328; 587 NW2d 10 (1998). The rape-shield statute represents a legislative determination that, in most cases, the prohibited evidence is irrelevant. Adair, supra at 480. "A complainant’s sexual history with others is generally irrelevant with respect to the alleged sexual assault by the defendant. MRE 401." Adair, supra at 481.

Nevertheless, whether the rape-shield statute should, as a matter of law, be construed as applying only to consensual sexual activities need not be addressed in the case at bar because the trial court did not rely solely on the rape-shield statute as the basis for limiting defendant’s crossexamination of the victim’s mother. Rather, the trial court engaged in a case-specific analysis of defendant’s offer of proof concerning his constitutional right of confrontation. We note that defendant did not proffer substantive evidence that the victim was subjected to past nonconsensual sexual activities where an investigation occurred or raised false allegations of rape. Rather, the defense alleged that the testimony by the victim’s mother that "we’d never been involved in anything like this in our family," opened the door to statements allegedly made by the victim to her ex-boyfriend and a former coworker about past sexual violations and sexual contact to determine the mother’s knowledge of alleged past sexual abuse perpetrated on the victim.

"[W]hile the extent of cross-examination is within the discretion of the trial court there is a dimension of the Confrontation Clause that guarantees to defendant a reasonable opportunity to test the truth of a witness’ testimony." Hackett, supra at 347. We hold here that the trial court did not abuse its discretion by precluding defendant from cross-examining the victim’s mother regarding other allegations of sexual abuse. The trial court is permitted to determine preliminary questions concerning the admissibility of evidence pursuant to MRE 104(a). Preliminary facts under MRE 104(a) are determined under a preponderance of the evidence standard. People v Hendrickson, 459 Mich 229, 242-243; 586 NW2d 906 (1998) (Boyle, J., concurring). A trial court’s factual findings are reviewed for clear error. See People v Barrera, 451 Mich 261, 269; 547 NW2d 280 (1996).

Here, the trial court did not abuse its discretion in determining that it properly could decide whether the statement by the victim’s mother opened the door to the proffered crossexamination based on a contextual review of that testimony. This is particularly true given the fact that trial counsel declined the opportunity to question the victim’s mother about the meaning of her statement.*2 Further, we find no basis for disturbing the trial court’s preliminary factual determination, inasmuch as a contextual review of the testimony supports the trial court’s determination that the mother was referring to how the legal process functions and, in particular, how it might function when a law enforcement officer is the defendant. Specifically, the victim’s mother testified that she contacted an attorney because:

"I was concerned about the good ole boy network; and I was concerned that she was going to be violated, and her rights would be trashed. We’d never been involved in anything like this in our family. I had no basis of comparison with a trial or whatever. And you watch T V, or I watch T V and, you know, you watch "Sixty Minutes" and "Newsweek" and all about how the police and . . ."

In light of the parties’ decision not to seek clarification from the witness and the trial court’s factual determination based on its contextual analysis, it was not necessary for the trial court to hold an in camera hearing to question the victim’s mother concerning her knowledge of the victim’s alleged past sexual activities. Further, defendant’s constitutional right to confront witnesses was not violated by the trial court’s ruling, inasmuch as defendant failed to establish the relevancy of the proffered cross-examination to the credibility of the victim’s mother’s testimony or her reason for contacting an attorney. The right of cross-examination does not include a right to cross-examine a witness on irrelevant issues. Adair, supra at 488. The Confrontation Clause only guarantees an opportunity for effective cross-examination. It does not guarantee cross-examination to whatever extent the defense might wish. People v Chavies, 234 Mich App 274, 283; 593 NW2d 655 (1999). Accordingly, the trial court did not abuse its discretion by limiting cross-examination of the victim’s mother.*3

Defendant next alleges that the trial court committed structural or plain error by failing to sua sponte order a mistrial or question other jurors after it was revealed that the investigating police agency in the case offered employment to a juror. We conclude that defense counsel’s approval of the relief granted by the trial court, namely, removal of the juror who was offered employment by the investigating police prior to jury deliberations, effectuated a waiver of this issue. People v Carter, 462 Mich 206, 218-219; 612 NW2d 144 (2000). Even if we were to treat defendant’s claim as an unpreserved issue subject to forfeiture, we would not reverse because defendant has not demonstrated a plain error. Carines, supra at 763. The record reflects that the trial court conducted a sufficient investigation of the matter to ensure that defendant’s constitutional right to an impartial jury was not violated when it questioned the juror about the circumstances of the offer of employment, about any discussions he had with other jurors about the offer of employment, and how the offer of employment might effect his ability to decide the case. Smith v Phillips, 455 US 209, 220; 102 S Ct 940; 71 L Ed 2d 78 (1982); United States v Corrado, 227 F3d 528, 535 (CA 6, 2000).

Defendant’s reliance on People v France, 436 Mich 138; 461 NW2d 621 (1990), to establish a presumption of prejudice, is misplaced because the instant case did not involve a substantive communication with a deliberating jury. Here, the excused juror was not part of the deliberating jury. Further, an offer of employment is not a prohibited substantive communication. The type of communication deemed substantive in France, supra, was a supplemental jury instruction on the law. Defendant’s reliance on Remmer v United States, 347 US 227; 74 S Ct 450; 98 L Ed 654 (1954), is similarly misplaced because an offer of employment, even with knowledge that the person is sitting on a jury, does not constitute a communication, directly or indirectly, about the case.

We are not persuaded that it was necessary, under the facts of this case, for the trial court to sua sponte question other jurors concerning their communication with the excused juror about the case. The trial court did not find jury tampering; it only determined that the investigating police agency’s conduct in making the offer of employment during trial was, at best, ill advised and, at worst, created an appearance of jury tampering. Further, the trial court instructed the jurors at the onset of the case not to discuss the case with anyone, including other jurors, until it was time to decide the case. "It is well established that jurors are presumed to follow their instructions." People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). We find no basis grounded in the excused juror’s contact with the investigating police agency that would preclude application of this presumption.

Finally, defendant alleges that he was denied the effective assistance of counsel as a result of defense counsel’s deficit performance. Because defendant did not raise this issue by motion in the trial court, our review is limited to errors apparent on the record. People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999). When a claim depends on facts not of record, it is incumbent upon the defendant to make a testimonial record at the trial court level in connection with a motion for new trial. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Defendant failed to establish his claims of ineffective assistance of counsel. The existing record is sufficient to determine that counsel’s performance relative to the matter involving the excused juror did not fall below an objective standard of reasonableness. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). The record is insufficient to establish deficient performance or prejudice in connection with counsel’s failure to pursue a defense based on the theory that the victim made past false accusations of sexual abuse. Defense counsel’s testimony is essential to a proper assessment of his performance in investigating this theory. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999). Further, absence evidence of a false accusation to support defendant’s claim, it cannot be determined that, but for counsel’s alleged deficient performance, the outcome of the trial would have been different. Avant, supra.

Affirmed.
/s/ William C. Whitbeck
/s/ Harold Hood
/s/ Kirsten Frank Kelly

*1 At trial, defense counsel sought to impeach the victim’s mother based on her statement that "[w]e’d never been involved in anything like this in our family." However, the victim’s mother also stated that an attorney was sought out so that "we could be sure that she wasn’t going to be railroaded again." We conclude that impeachment based on the second statement was not preserved because defendant did not identify this testimony in his offer of proof at trial. People v Hackett, 421 Mich 338, 352; 365 NW2d 120 (1984). Without an offer of proof or an actual undertaking by defense counsel to cross-examine the victim’s mother about the meaning of her "railroaded again" testimony, defendant cannot establish a plain violation of his constitutional right to confront witnesses. Therefore, this forfeited statement affords no basis for relief. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

*2 The trial judge stated: "When I suggested that we have the witness testify concerning what she meant by the word ‘this’ neither counsel advocated that we should do that. And in taking a closer look at the transcript I’m not convinced that we need to because this is defined by what is stated before and after. Therefore, I feel there’s a sufficient record. So the court is ruling thatthe witness is basically talking about a process, and that there is no entitlement to defendant’s
right to confrontation." Counsel may not harbor error as an appellate parachute. People v Riley, 465 Mich 442, 448; 636 NW2d 514 (2001). Both parties had the opportunity to definitively determine what the victim’s mother was referring to by her use of the word "this," but declined. Thus, it is speculative whether impeachment was feasible under the circumstances.

*3. Even if we had concluded that the trial court abused its discretion by limiting crossexamination of the victim’s mother involving a preserved error of constitutional magnitude, the error was harmless beyond a reasonable doubt. People v Kelly, 231 Mich App 627, 644-645;588 NW2d 480 (1998). Although evidence that a witness filed or contemplated filing a civil lawsuit is relevant to the witness’ credibility because it relates to the witness’ bias or interest in the case, People v Morton, 213 Mich App 331, 334-335; 539 NW2d 771 (1995), the trial court’s ruling did not prevent defendant from presenting his theory that the victim had a monetarymotive for making a false accusation against him. Nor did it preclude defendant fromchallenging the credibility of mother’s testimony regarding her motivation for contacting an attorney.
Posted by at No comments:
Labels: , , ,
Subscribe to: Posts (Atom)