PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Jerry L. STEWART, Defendant-Appellant.
Docket No. 196451.
Court of Appeals of Michigan.
Submitted July 23, 1996, at Lansing. Decided September 17, 1996, at 9:35 a.m. Released for Publication November 22, 1996.*716 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Robert C. Williams, Assistant Prosecuting Attorney, for people.
Michael J. Brady, Southfield, for defendant-appellant on appeal.
Before MARK J. CAVANAGH, P.J., and WAHLS and SMOLENSKI, JJ.
ON REMAND
PER CURIAM.
This case is before us on remand from the Supreme Court. In our previous opinion, we reluctantly concluded that we were bound by this Court's decision in People v. Tims, 202 Mich.App. 335, 508 N.W.2d 175 (1993), and accordingly reversed defendant's conviction of manslaughter with a motor vehicle, M.C.L. § 750.321; M.S.A. § 28.553. People v. Stewart (On Rehearing), 206 Mich.App. 662, 522 N.W.2d 912 (1994). This Court subsequently declined to convene a special panel in this case. 207 Mich.App. 801, 524 N.W.2d 249 (1994). The prosecutor sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, entered an order vacating our previous opinion and remanding for reconsideration in light of its decisions in People v. Tims, 449 Mich. 83, 534 N.W.2d 675 (1995), and People v. Doyle, 451 Mich. 93, 545 N.W.2d 627 (1996). 452 Mich. 857, 550 N.W.2d 793 (1996). On remand, we now affirm.
The facts of this case were set forth in our previous opinion:
In the early morning hours of July 24, 1990, the vehicle in which defendant and Sandra Groves were traveling went off a freeway exit ramp and rolled over. Both occupants were thrown from the car, and Groves was killed. Defendant, who was found to have a blood alcohol level of 0.18 percent, was charged with manslaughter with a motor vehicle. A jury found him guilty as charged. A second jury then convicted defendant of being an habitual offender, third offense, on the basis of two prior convictions of operating a motor vehicle while under the influence of intoxicating liquor, third offense (OUIL-third), MCL 257.625(6); MSA 9.2325(6). [Stewart, 206 Mich.App. at 663, 522 N.W.2d 912.]
I
In his first issue, defendant claims that the trial court erred in instructing the jury that it could find defendant guilty of manslaughter if his actions were "a," rather than "the," substantial cause of Sandra *717 Grove's death, in light of expert testimony that the allegedly defective design of the freeway ramp may have been partially or wholly to blame. However, the Supreme Court has recently determined that it is proper to instruct a jury that the defendant's conduct need only be "a" proximate cause of death. Tims, 449 Mich. at 96-97, 534 N.W.2d 675. Accordingly, the jury was properly instructed and we find no error requiring reversal.
II
Defendant next asserts that he was denied the effective assistance of counsel at trial. A defendant that claims that he has been denied the effective assistance of counsel must establish that (1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different. People v. Pickens, 446 Mich. 298, 302-303, 521 N.W.2d 797 (1994). A defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel's error, there is a reasonable probability that the outcome of the trial would have been different. People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994), cert. den. sub nom Michigan v. Caruso, 513 U.S. ___, 115 S. Ct. 923, 130 L. Ed. 2d 802 (1995).
Because defendant failed to move for a Ginther[1] hearing or a new trial on the basis of ineffective assistance of counsel, this Court's review is limited to errors apparent on the record. People v. Hurst, 205 Mich.App. 634, 641, 517 N.W.2d 858 (1994). After carefully reviewing the record, we conclude that defendant was not denied the effective assistance of counsel. When counsel's opening argument is considered in its entirety, it is clear that counsel was arguing that even if defendant had been driving, the ramp had been negligently designed and defendant's negligence was not the proximate cause of the decedent's death. Defendant also argues that counsel's performance was ineffective with regard to the statement defendant allegedly made to Officer Stephen Currie. From the record, it appears that counsel chose to contest that the statement had ever been made. This was a matter of trial strategy that this Court will not attempt to second-guess. See People v. Reed, 449 Mich. 375, 384, 535 N.W.2d 496 (1995). The fact that defense counsel's strategy may not have worked does not constitute ineffective assistance of counsel. People v. Murph, 185 Mich.App. 476, 479, 463 N.W.2d 156 (1990), modified with respect to sentencing On Rehearing, 190 Mich.App. 707, 476 N.W.2d 500 (1991). Counsel was not ineffective in failing to object to Sergeant Norman O'Brien's testimony because it was admissible as a consistent prior statement under MRE 801(d)(1) to rebut counsel's allegations that Officer Currie's statement had been recently fabricated.
III
Defendant next contends that his motion for a mistrial should have been granted because a witness' testimony compromised his right to remain silent. A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant's ability to get a fair trial. People v. Lugo, 214 Mich.App. 699, 704, 542 N.W.2d 921 (1995).
We conclude that the trial court did not err in denying defendant's motion for a mistrial. Defendant's silence or nonresponsive conduct did not occur during a custodial interrogation, nor was it in reliance on Miranda[2] warnings. Accordingly, defendant's silence was not constitutionally protected, and his rights were not violated by the witness' testimony. People v. Schollaert, 194 Mich.App. 158, 166-167, 486 N.W.2d 312 (1992).
IV
Defendant next argues that the trial court erred in denying his motion for the dismissal of the habitual offender charges because the *718 prior felonies used to enhance defendant's sentence were two convictions of operating a motor vehicle while under the influence of intoxicating liquor (OUIL), third offense, M.C.L. § 257.625(6); M.S.A. § 9.2325(6). We disagree. In People v. Bewersdorf, 438 Mich. 55, 59, 475 N.W.2d 231 (1991), cert. den sub nom Johnson v. Michigan, 502 U.S. 1111, 112 S. Ct. 1214, 117 L. Ed. 2d 452 (1992), the Supreme Court held that the habitual offender act[3] is applicable to third and subsequent convictions of OUIL. The Supreme Court recently has held that the rule announced in Bewersdorf should have retroactive application. Doyle, supra at 101, 545 N.W.2d 627. Accordingly, we find no error.
V
Defendant next claims that the trial court committed error requiring reversal in allowing the prosecutor to amend the supplemental information with regard to the habitual offender charge. We disagree. A trial "court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence." M.C.L. § 767.76; M.S.A. § 28.1016. The information provided defendant with sufficient notice of the prosecutor's allegations. See People v. Adams, 202 Mich.App. 385, 389, 509 N.W.2d 530 (1993). The trial court did not err in allowing the prosecutor to amend the information.
VI
In his final issue, defendant argues that he is entitled to resentencing because the trial court improperly delegated its sentencing authority to the sentencing panel. We disagree. The trial court articulated at length its reasons for imposing the sentence that it did. The mere fact that both the trial court and the sentencing panel believed that defendant should receive the maximum possible penalty is not evidence that the trial court failed to exercise its discretion.
Defendant also claims that the trial court impermissibly based its sentence on defendant's assertions of innocence. After reviewing the trial court's comments, we conclude that resentencing is not required. The trial court addressed defendant's failure to admit guilt only as it bore upon his history of avoiding responsibility for his actions. Cf. People v. Wesley, 428 Mich. 708, 713, 411 N.W.2d 159 (1987) (Archer, J.), cert. den. 484 U.S. 967, 108 S. Ct. 459, 98 L. Ed. 2d 399 (1987). Moreover, the trial court clearly based its sentence on the fact that defendant had had sixteen prior OUIL convictions and had continued to drink and drive.
Affirmed.
NOTES
[1] People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973).
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996).
[3] M.C.L. § 769.10 et seq.; M.S.A. § 28.1082 et seq.