Saturday, May 13, 2006

05132006 - Deputy Michael Harvey - Antrim County SD

May 13, 2006: Deputy Michael Harvey, Antrim County Sheriff Department




DEPUTY MICHAEL HARVEY:THREATENED TO KILL HIS WIFE; THREATENED HIS WIFE W/GUN & PULLED TAZER GUN ON TODDLER SON[WHILE HE WAS ON DUTY]
http://michiganoidv.blogspot.com/2006/05/may-13-2006-deputy-michael-harvey.html



ORIGINAL CHARGES: TWO COUNTS OF FELONIOUS ASSAULT.










ALSO SEE:
DEPUTY MICHAEL HARVEY: INVOLVED IN DOMESTIC ARGUMENT AT SHERIFF DEPARTMENT. FEBRUARY 21, 2006.

http://michiganoidv.blogspot.com/2006/02/deputy-michael-harvey-antrim-sd.html


DEPUTY MICHAEL HARVEY: INTOXICATED PRIOR TO REPORTING TO WORK. [FEBRUARY 23, 2006]
http://michiganoidv.blogspot.com/2006/02/deputy-michael-harvey-antrim-sd_23.html






















Michigan Commission on Law Enforcement Standards
March 14, 2007
Kettering University
Flint, Michigan
CALL TO ORDER:
The Commission Meeting was called to order by Sheriff Gene Wriggelsworth on March 14, 2007, at 9:30 a.m. at Kettering University in Flint, Michigan.

NEW BUSINESS Continued:
Commission Revocations – Mr. Furtaw presented the following cases recommending the Commission consider the proofs, finding of facts, and conclusions of law found in the “Proposals for Decision” issued by Administrative Law Judge Michael Zimmer in the cases as grounds to issue a final decision and order revoking the law enforcement licenses of these officers.Page 8

NEW BUSINESS Continued:
Michael Harvey, Docket # 2006-960 – Mr. Harvey was convicted of felonious assault a four -year felony in August of 2006 in a domestic violence incident. He was sentenced in Antrim County Circuit Court.A MOTION was made by Deputy Chief Robinson and supported by Sheriff Pickell to adopt the Proposal for Decision and revoke the law enforcement license of Mr. Michael
Harvey.

A VOTE was taken. The MOTION carried.







Former deputy sent to prison for assaulting wife
Grand Haven Tribune, MI
http://www.grandhaventribune.com/paid/287490498780529.bsp

BELLAIRE (AP) — A judge imposed extra prison time on a former Antrim County sheriff's deputy who assaulted his wife and threatened to kill her.

Michael Harvey, 34, pleaded guilty last month to felonious assault and misdemeanor domestic violence. Under state sentencing guidelines, he would have gone to jail for a year. But Circuit Judge Thomas G. Power said that wasn't enough, ordering Harvey to prison for two to four years.

Power also ruled Harvey ineligible for "boot camp" rehabilitation — a military-style program that can lead to early release.

"This is not a boot camp case," Power said during a hearing Monday. "Mr. Harvey needs to sit for two years."

Harvey's wife testified her husband "has held a gun to my head a total of five times."

The final time was May 13, when Harvey drove to his Central Lake home while on duty and pulled his service weapon during an argument about pending divorce proceedings. It happened in front of the couple's youngest son.

"The most heartbreaking thing was hearing my 2-year-old son saying, 'Daddy, don't shoot mommy,"' Trish Harvey said. "I'd like Mike to know he'll never hurt me again."

Harvey offered a brief, tearful apology to his wife and family.







Deputy headed to prison
Harvey pulled a gun on his wife while on duty
Traverse City Record Eagle, MI
By CRAIG McCOOL
09/12/2006
http://www.record-eagle.com/2006/sep/12harvey.htm

BELLAIRE — A former Antrim County sheriff's deputy will spend at least two years in prison for assaulting his wife and threatening to kill her.

Sentence guidelines called for Michael Harvey to go to jail for 12 months, but Antrim Circuit Judge Thomas G. Power said that wasn't adequate and ordered Harvey to prison for two to four years.

Harvey's wife told Power during Monday's hearing that her husband "has held a gun to my head a total of five times."

The final time was May 13, when Harvey drove to his Central Lake home while on duty and pulled his service weapon during an argument about pending divorce proceedings. It happened in front of the couple's youngest son.

"The most heartbreaking thing was hearing my two-year-old son saying 'Daddy, don't shoot mommy,'" Trish Harvey said. "I'd like Mike to know he'll never hurt me again."

Harvey, 34, pleaded guilty last month to felonious assault and misdemeanor domestic violence charges.

Power sentenced Harvey to three months behind bars on the latter conviction, though that time will be served concurrently with the longer sentence. The domestic violence charge stems from an incident involving another woman with whom Harvey was romantically involved.

Some prison inmates, generally first-time offenders, are eligible for state "boot camp" programs — state-run, military-style rehabilitation programs that can lead to early release. Power made a point to exclude Harvey, though.

"This is not a boot camp case," Power said. "Mr. Harvey needs to sit for two years."

Harvey offered a brief apology to his wife and family Monday, and wiped tears from his face with the front of his shirt.

The judge described how Harvey pointed his handgun at his wife's head so close that "the barrel touched her hair" and then threatened to kill her, their children and her mother.

"The pre-sentence report says (Harvey has) 'uncontrollable anger issues,'" Power said. "I guess that's the understatement of the day. It's hard to understand what he was thinking on any level."







Former Deputy Sent To Prison For Assault

tv7-4.comAntrim County
Sep 11, 2006
http://www.tv7-4.com/Global/story.asp?S=5392202&nav=1vrj

A former Sheriff's Deputy will spend up to four years behind bars for threatening his wife and child.

Investigators say in May, while Antrim County Deputy Michael Harvey was on duty, he went home and threatened his wife with a gun and pointed a taser gun at his two year old son. In August Harvey pled guilty to felonious assault and domestic violence. He was sentenced to two to four years Monday on the felonious assault charge and three months for domestic violence.







Former deputy pleads guilty

He was accused of threatening his wife
By CRAIG McCOOL
Record-Eagle staff writer
08/19/2006
http://www.record-eagle.com/2006/aug/19harvey.htm

BELLAIRE — A former Antrim County deputy pleaded guilty to assault charges for threatening his wife with his service weapon while on duty.

Michael Harvey, 34, likely will face less than a year in jail when sentenced next month on felonious assault and domestic violence charges.

Defense attorney Douglas Gutscher said he believed the sentencing guidelines would fall between zero and nine months.

Harvey pleaded guilty Aug. 10 to one count of assault with a dangerous weapon — a four-year felony — for the May 13 incident at his home in Central Lake.

Police said the six-year Antrim County Sheriff's Department veteran threatened to kill his wife because she initiated divorce proceedings.

"I will kill you, your mother and then myself," Harvey allegedly told his wife, according to police reports.

"You need to stop the attorney, stop the divorce, stop everything."

Harvey also pleaded guilty to a misdemeanor count of domestic violence.

He initially was charged with two counts of felonious assault. The Grand Traverse County Prosecutor's Office, which was appointed special prosecutor in Harvey's case, later added a felony firearm charge — for allegedly using a gun during the commission of a felony — and two additional counts of domestic violence against Harvey.

The domestic violence charges didn't involve Harvey's wife, but a second woman, Gutscher said.

To be dismissed as part of the plea agreement are: one count of felonious assault; one felony firearm charge; and a second domestic violence charge. Sentencing is scheduled for Sept. 11 in Antrim Circuit Court.

Harvey was suspended from the sheriff's department without pay immediately after he was charged and was subsequently fired.







Accused deputy's personnel file shows recent problems

Traverse City Record Eagle, MI
By CRAIG McCOOL
06/23/2006
http://www.record-eagle.com/2006/jun/23harvey.htm

BELLAIRE — An Antrim County sheriff's deputy who faces assault and weapons charges seemed a model employee for most of his six years with the department.

Until this year, Michael Harvey, who allegedly threatened to kill his wife with his service gun while on duty in May, received raises and promotions. From the time he was hired in 2000 through the end of 2005, Harvey did not receive a disciplinary letter or citation.

But this February, the deputy with the squeaky-clean record was disciplined twice, including once for drinking heavily the night before he was to work an early shift.

The Record-Eagle obtained a copy of Harvey's personnel file through a state Freedom of Information Act request.

Harvey, 34, was hired in 2000. Between then and the start of this year, he was promoted from the jail to various road patrol assignments.

Shortly after his promotion to the road, a citizen sent a letter to Sheriff Terry Johnson noting Harvey's kindness and "dedication to the community."

Accolades came from superiors, too, but disciplinary warnings began early this year. The first occurred Feb. 21, when Harvey argued with a woman in the county's 911 dispatch area.

Other county employees witnessed the incident and called Michigan State Police, who investigated but did not seek charges. Johnson issued Harvey a warning.

Another incident occurred two days later. On Feb. 23, Harvey was observed drinking in Central Lake, prior to his scheduled 4 a.m. shift.

Johnson wrote that Harvey drove that night to Bellaire, where he was confronted by another Antrim deputy and made to take a preliminary breath test.

Harvey blew a 0.169, more than double the legal driving limit, though the letter addressed no specific concern about drinking and driving.

"In the report it states that you felt you would have been OK to go to work" at 4 a.m., Johnson wrote. "I find this to be a ridiculous statement."

Harvey received a single-day suspension without pay for the drinking incident.

Harvey has been suspended without pay following his arrest May 14.

He faces two felonious assault charges, punishable by up to four years in prison. Prosecutors also recently added a third charge, using a firearm in the commission of a felony, punishable by up to two years in prison, said Harvey's attorney Douglas Gutscher.







GT to prosecute deputy

Case reassigned because of potential witness
Traverse City Record Eagle, MI
By craig mccool
05/31/2006
http://www.record-eagle.com/2006/may/31harvey.htm

BELLAIRE — Prosecution of an assault case against an Antrim County sheriff's deputy has been reassigned to a different county because the witness list could include another Antrim County employee with whom the defendant may have been personally involved, officials said.

Michael Harvey, 34, is accused of threatening his wife with his service handgun while on duty May 13 at the couple's home in Central Lake.

Antrim Prosecutor Charles Koop said he asked the felony assault case against Harvey be reassigned to Grand Traverse County because the witness list includes an employee in his office.

"I made the decision not because he (Harvey) was a county officer, but ... one of my employees might be a witness, Koop said.

The employee is Melissa Rogers, a clerical worker in the prosecutors office. Antrim Sheriff Terry Johnson said he thinks she and Harvey had a personal relationship.

Harvey was reprimanded after a Feb. 21 incident during which he and Rogers argued in the sheriff's department parking lot. Things got so heated that other sheriff's personnel called state police, who investigated, Johnson said.

State police in Kalkaska confirmed they responded to "a domestic argument" involving Harvey that evening at the Antrim dispatch center. Koop said the incident did not lead to charges.

Following the incident, Rogers was warned to stay away from Harvey during work hours unless there was something work-related to discuss, Koop said.

Johnson said Harvey had a "written warning" placed in his personnel file after the incident.

Harvey has been suspended without pay since his arrest.

He recently waived his right to a preliminary examination and was bound over on two counts of felonious assault, Antrim District Court officials said.







Officials: Deputy threatened to kill wife

He allegedly pulled gun on her while on duty
Traverse City Record Eagle, MI
by ian c. storey and craig mccool
05/16/2006
http://www.record-eagle.com/2006/may/16harvey.htm

TRAVERSE CITY — An on-duty Antrim County sheriff's deputy allegedly pulled his service handgun on his estranged wife and threatened to kill her and the couple's children unless she stopped divorce proceedings.

Michael Harvey, a six-year department veteran, was arraigned Monday on two counts of felonious assault before 86th District Court Judge James R. McCormick. The alleged assault occurred at the couple's Central Lake home Saturday, authorities said.

Antrim County Prosecutor Charles Koop said Harvey was on duty when he went to the house at 10 p.m. and allegedly argued with his wife over divorce proceedings she'd initiated.

Koop said Harvey, 34, allegedly pushed his wife to the ground and struck her in the face. As the argument escalated, Harvey allegedly pointed his handgun at his wife and threatened to kill her.

"I will kill you, your mother and then myself," Harvey allegedly told his wife, according to police reports. "You need to stop the attorney, stop the divorce, and stop everything."

Koop said the argument spilled into the home, where in front of the couple's children Harvey allegedly pointed his gun again and made additional threats.

"If I get the (expletive) papers in the mail, I am going to (expletive) kill you and your mother, and I'm going to kill these two boys and then I am going to kill myself," Harvey said, according to police reports.

During the altercation, county dispatch officials contacted Harvey about a criminal complaint and he left the house, Koop said.

Koop said Harvey's wife drove to the Michigan State Police post in Cadillac to report the incident. She feared her husband would have been able to monitor a local call to emergency officials, he said.

"He got off at midnight and it was reported to the Cadillac post," said Koop. "The post contacted the (Kalkaska) post and he was arrested."

Harvey was arrested around 6 a.m. Sunday at his residence without incident, Koop said.

Douglas Gutscher, an attorney with the Police Officers Association of Michigan, asked McCormick to reduce the $500,000 bond set for Harvey, who will remain in the Grand Traverse County Jail.

"These are simply allegations of a person in the middle of a divorce," he said. "The allegations are serious, but that is all they are now."

Koop told McCormick the alleged threat was not an isolated incident, referencing other allegations of threats in recent months that Harvey made to his wife.

"In an interview with the defendant yesterday he indicated that not only did he threaten his wife (in the past), but also took his duty Taser and pointed it during this time period at his two-year-old son," said Koop.

Koop said 57 firearms, both loaded and unloaded, were confiscated from Harvey's home.

McCormick did not lower the bond.

He also ordered Harvey to have no contact with his wife, children, her family or any witnesses if he is freed.

"If true, this is a major threat of injury or perhaps even fatal injury to the alleged victim," said McCormick. "I don't think the court wants to risk being responsible for the defendant being out on the street."

Harvey, who faces up to four years in prison, is scheduled for a preliminary examination in Antrim County on May 25.

Koop said he will ask that a special prosecutor be appointed because a member of his staff may be a witness in the case.

The task will likely fall to Grand Traverse County prosecutor's office, which had representatives present during Harvey's arraignment.

Antrim County Sheriff Terry L. Johnson, who accompanied Koop to the hearing in Traverse City, said Harvey was suspended without pay beginning Sunday.

Johnson said Harvey started with the department in 2000 as a corrections officer before becoming a deputy in 2003.

"It is certainly not a proud moment for our department," he said.








Antrim County Deputy Faces Assault Charges
WPBN-TV, MI
8 hours ago
May 16, 2006
http://www.tv7-4.com/Global/story.asp?S=4909574&nav=1vrj
An Antrim county deputy is behind bars after prosecutors say he threatened his wife, with a gun.

Michael Harvey was in court Monday in Grand Traverse county on two counts of felonious assault.

The Antrim county sheriff says while deputy Harvey was on duty Saturday night he went to his home and threatened his wife with a gun and pointed a taser gun at his two year old son. The sheriff says the deputy told his wife he would kill her, their children and his mother in law.

The Antrim county prosecutor says the deputy has had three prior insistences that the department knows of.

Deputy Harvey is currently suspended without pay, and in the Grand Traverse county jail.

Friday, May 5, 2006

05052006 - Officer Dahood Ali - Detroit Police Department

May 05, 2006: Officer Dahood Ali, Detroit Police Department.

Michigan Commission on Law Enforcement Standards
Commission Meeting Minutes June 5, 2007
MCOLES Offices, Lansing, Michigan
MCOLES MEMBERS PRESENT:
Sheriff Gene Wriggelsworth, representing the Michigan Sheriffs’ Association
Mr. John Buczek, representing the Fraternal Order of Police
Mr. Jim DeVries, representing the Police Officers Association of Michigan
Lt. Col. Timothy Yungfer, representing Colonel Peter C. Munoz, Michigan State Police
Mr. Bill Dennis, representing the Attorney General Mike Cox
Chief Richard Mattice, representing the Michigan Association of Chiefs of Police
Mr. David Morse, representing the Prosecuting Attorneys Association of Michigan
Deputy Chief Deborah Robinson, representing Chief Ella M. Bully-Cummings, Detroit
Police Department
Mr. Raymond Beach, Executive Director
Mr. Tom Furtaw, Commission Counsel
MCOLES MEMBERS PRESENT BY TELEPHONE:Chief Doreen Olko, representing the Michigan Association of Chiefs of Police
Director Kurt Jones, representing the Michigan Association of Chiefs of Police
Trooper Michael Moorman, representing the Michigan State Police Troopers Association
Sheriff Robert Pickell, representing the Michigan Sheriffs’ Association
COMMISSION MEMBERS EXCUSED:Prof. Ron Bretz, representing the Criminal Defense Attorneys of Michigan
Sheriff James Bosscher, representing the Michigan Sheriffs’ Association
Officer Richard Weaver, representing the Detroit Police Officers Association
COMMISSION STAFF PRESENT:Ms. Hermina Kramp Ms. Cheryl Hartwell
Mr. David King
Michigan Commission on Law Enforcement Standards Commission Meeting, Lansing June 5, 2007 Page 2GUESTS (signing in):There were no guests.
CALL TO ORDER:
The Commission Meeting was called to order by Chairman Gene Wriggelsworth at 10:04 a.m. at the MCOLES Offices in Lansing, Michigan.
A roll call attendance was taken to establish attendance for Commission action during the meeting.
NEW BUSINESS:
Revocations/Contested Cases
Dahood Ali, Docket #2007-118 – Mr. Dahood was convicted by jury on May 5, 2006 of two counts of Criminal Sexual Conduct 2nd Degree (MCL 750.520c) and one count of Child/Accost/Immoral Purposes (MCL 750.145a). He was convicted in the 3rd Circuit Court in Wayne County.
A MOTION was made by Lt. Colonel Yungfer and supported by Mr. Dennis to concur with the finding of facts and conclusion of law by administrative law Judge Zimmer in this case and to issue a Final Decision and Order revoking the law enforcement license of Mr. Dahood Ali.
A roll-call VOTE was taken.
Director Kurt Jones – yes
Chief Doreen Olko – yes
Trooper Michael Moorman – yes
Sheriff Robert Pickell – yes
Sheriff Gene Wriggelsworth – yes
Lt. Colonel Timothy Yungfer – yes
Mr. Bill Dennis – yes
Deputy Chief Deborah Robinson – yes
Chief Richard Mattice – yes
Mr. Jim DeVries – yes
Mr. David Morse – yes
Mr. John Buczek - yes
The MOTION carried unanimously.




S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED December 6, 2007
v
No. 271063
Wayne Circuit Court
DAHOOD ALI,
LC No. 06-001505-01
Defendant-Appellant.
Before: Saad, P.J., and Jansen and Beckering, JJ.
PER CURIAM.

Defendant appeals as of right his jury trial convictions of two counts of second-degree criminal sexual conduct (CSC), MCL 750.520c(1)(b)(iii) (sexual contact by an actor with position of authority over a minor between the ages of 13 and 16), and one count of accosting a child for immoral purposes, MCL 750.145a.

Defendant was acquitted of two additional counts of second-degree CSC. Defendant was sentenced to 2 ½ to 15 years’ imprisonment for the CSC convictions and one to four years’ imprisonment for the accosting a child for immoral purposes conviction. We affirm.

Defendant, a former Detroit police officer, contends that he received ineffective assistance of counsel. Specifically, defendant contends that his trial counsel failed to call four proposed witnesses to establish his habit and routine, pursuant to MRE 406, of giving his business card and cellular telephone number to people in need of assistance. According to defendant, this evidence was necessary to rebut the prosecution’s argument that he gave his cellular telephone number to the complainant, a 13-year-old girl, with the intention of engaging in an inappropriate relationship. Defendant requests a new trial or, in the alternative, a remand for an evidentiary hearing.

A claim of ineffective assistance of counsel should be raised by a motion for a new trial or an evidentiary hearing pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). This Court previously denied defendant’s motion to remand for a Ginther hearing.

People v Ali, unpublished order of the Court of Appeals, entered April 6, 2007 (Docket No. 271063). Therefore, our review of this issue is limited to the existing record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).

To establish ineffective assistance of counsel, defendant must show that defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness

Page 2and denied him a fair trial. People v Henry, 239 Mich App 140, 145-146; 607 NW2d 767
(1999).

Furthermore, defendant must show that, but for defense counsel’s error, it is likely that the proceeding’s outcome would have been different. Id. at 146. Effective assistance of counsel is presumed; therefore, defendant must overcome the presumption that defense counsel’s performance constituted sound trial strategy. Id.

Defense counsel’s failure to investigate and call a witness does not amount to ineffective assistance of counsel unless the defendant shows prejudice as a result. People v Caballero, 184 Mich App 636, 640-642; 459 NW2d 80 (1990).

In other words, defense counsel’s failure to call the proposed witnesses in this case can only constitute ineffective assistance of counsel if it deprived defendant of a substantial defense. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004); People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated in part on other grounds 453 Mich 900 (1996).

A substantial defense is one which might have made a difference in the outcome of the trial. Id. at 710. Moreover, the decision whether to call a witness is presumed to be a matter of trial strategy, Dixon, supra at 398, and we will not substitute our judgment for that of counsel regarding matters of trial strategy, People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).

Evidence of habit and routine is admissible pursuant to MRE 406, which provides: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In Laszko v Cooper Laboratories, Inc, 114 Mich App 253, 255; 318 NW2d 639 (1982), this Court held that “evidence of habit or routine practice is admissible to show like conduct on the occasion in question.” The proffered evidence “must establish a set pattern or show that something is done routinely or has been performed on countless occasions.” Id. at 256. Before a witness may testify to a defendant’s habit or routine, the defendant must make an offer of proof establishing that the witness has sufficient knowledge to testify to the routine nature of the practice. Id.

“Character” and “habit” are similar concepts. Pursuant to MRE 404(a), evidence of a defendant’s character is generally not admissible to establish “action in conformity therewith on a particular occasion.” A defendant may, however, offer “[e]vidence of a pertinent trait of character” and the prosecution may offer rebuttal character evidence when the defendant “opens the door.”

MRE 404(a)(1). In general, a defendant may offer character evidence only by testimony regarding the defendant’s reputation or by opinion testimony. On cross-examination, however, the prosecution may inquire into specific instances of conduct. MRE 405(a). The defense may only present evidence of specific instances of conduct to establish a defendant’s character when the character trait is “an essential element” of the charged offense. MRE 405(b).

Black’s Law Dictionary (6th ed) defines “character” using the term “habit.”

The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of the [sic] one’s distinguishing attributes. That moral predisposition or habit, or aggregate of ethical qualities, which is

Page 3-3- believed to attach to a person, on the strength of the common opinion and report concerning him. A person’s fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained. . . .

In turn, Black’s Law Dictionary (6th ed) defines “habit” as follows:
A disposition or condition of the body or mind acquired by custom or a usual repetition of the same act or function. The customary conduct, to pursue which one has acquired a tendency, from frequent repetition of the same acts. . . .

A regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances. . . .

There is no relevant, published Michigan case law describing the relationship between
“character” and “habit” evidence. However, we find the following reasoning of the Arkansas Supreme Court to be persuasive:

The state urges that evidence of a person’s good habits naturally leads to an assumption of good character, but that does not preclude its introduction. As stated in McCormick on Evidence § 195 (2nd Ed. 1972):

“Character and habits are close [sic] akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

‘Habit,’ in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation . . . A habit . . . is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct . . .

Character may be thought of as the sum of one’s habits though doubtless it is more than this.” [Derring v State, 273 Ark 347, 352; 619 SW2d 644 (1981).]

The commentary accompanying MRE 406 notes that the Michigan rule is identical to its federal counterpart. MRE 406 Comments. The commentary accompanying FRE 406 states that:

Courts have generally proceeded cautiously in permitting the admission of a pattern of conduct as habit, “because it necessarily engenders the very real possibility that such evidence will be used to establish a party’s propensity to act in conformity with its general character, thereby thwarting Rule 404’s prohibition against the use of character evidence except for narrowly prescribed purposes.”

Simplex, Inc v Diversified Energy Sys, 847 F2d 1290, 1293 ([CA 7], 1988). That is, Courts are concerned that the rule admitting evidence as habit will swallow the rule that excludes character evidence. . . . [FRE 406, Commentary, Character Distinguished.]

In determining whether evidence establishes an individual’s character or habit, the commentary reasons:
Page 4-4-
“[H]abit refers to the type of non-volitional activity that occurs with invariable regularity. It is the non-volitional character of habit evidence that makes it probative.” Weil v Seltzer, 873 F2d 1453, 1460 (DC Cir[,] 1989).

Thus, activity that is extremely complicated is unlikely to be considered habit, since such activity would ordinarily be dependent on a significant thought process, as well as a number of contingencies, and all of this is inconsistent with the notion of habit as reflexive and semiautomatic. . . . [FRE 406, Commentary, Character Distinguished.]

At trial, before opening statements, defense counsel moved to admit testimony from four witnesses regarding defendant’s “reputation in the community with respect to truth and honesty” and his “good moral character.”

Defense counsel admitted that the prosecution would be free to rebut the witnesses’ proposed testimony during cross-examination. The trial court postponed its ruling on the motion. Defense counsel did not, however, attempt to call the witnesses later in the proceedings.

On appeal, defendant submitted an offer of proof regarding defense counsel’s trial strategy and the affidavits of four proposed defense witnesses.

1
In their affidavits, the witnesses averred that defendant frequently gave his time and money to help youth in need of assistance.

Generally, we do not review documents that are not part of the lower court record. MCR
7.210(A)(1); People v Eccles, 260 Mich App 379, 384 n 4; 677 NW2d 76 (2004). We will, however, review the documents for the purpose of deciding defendant’s request for a remand. See MCR 7.211(C)(1)(a)(ii).

According to defendant, his trial counsel should have introduced the witnesses’ proposed testimony because it was relevant to establish his habit and routine, pursuant to MRE 406, of giving his business card and cellular telephone number to people in need of assistance.

We note, however, that the majority of the statements in the witnesses’ affidavits relate to defendant’s caring and generous behavior toward youth in general. In fact, only one of the proposed witnesses stated that she personally observed defendant give his business card and cellular telephone number to people he considered “needy.”

We find that the proposed testimony does not describe the type of simple conduct that could be defined as “reflexive” or “non-volitional” as anticipated in the commentary to FRE 406.

Thus, it is unlikely that the trial court would have admitted the testimony as evidence of routine or habit under MRE 406. It is more likely that the testimony falls into the category of general character evidence under MRE 404, the admission of which would open the door to rebuttal character evidence. Bearing this in mind, we cannot find that defense counsel’s failure to call the four proposed witnesses, and to keep the door closed to potential rebuttal evidence, was anything but sound trial strategy. Dixon, supra at 398; Henry, supra at 146.

Moreover, defendant has not shown that he was denied a substantial defense by defense counsel’s failure to call the proposed witnesses. Dixon, supra at 398; Hyland, supra at 710.

Defendant claims that the witnesses’ proposed testimony was necessary to rebut the prosecution’s argument that he gave his cellular telephone number to the complainant in order to

Page 5-5- engage in an inappropriate relationship. But, evidence of defendant’s alleged habit of helping youth in need and handing out his cellular telephone number does not counter the allegations of his particular conduct toward the complainant. The complainant testified that defendant “fondled” her breasts and that she masturbated defendant when he asked her to do so.

Additional testimony at trial established that there were at least 48 telephone calls between the complainant and defendant over several months, 34 of which were initiated from defendant’s telephone.

In light of this evidence, we cannot conclude that the jury would have acquitted defendant if presented with the proposed testimony. Henry, supra at 146; Hyland, supra at 710.

A new trial is not warranted. Moreover, because defendant has failed to demonstrate that facts elicited during an evidentiary hearing would support his claim, we decline to order a remand. See MCR 7.211(C)(1)(a)(ii).
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Jane M. Beckering


[MI POLICE OFFICER INVOLVED PERPETRATED DOMESTIC VIOLENCE LAW ENFORCEMENT MURDER SUICIDE]