If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 14, 2022
Plaintiff-Appellee,
v No. 356568
Alpena Circuit Court
JOHN HARVEY GADDY, LC No. 20-009684-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and GADOLA and YATES, JJ.
PER CURIAM.
Defendant was convicted after a bench trial of assault with a dangerous weapon (felonious
assault), MCL 750.82, and was sentenced as a fourth-offense habitual offender, MCL 769.12, to
30 months to 15 years in prison. Defendant appeals as of right, and we affirm.
I. FACTS
On August 1, 2020, defendant and his girlfriend drove a friend to Alpena, Michigan, where
the friend sold methamphetamine to a purchaser. After the transaction occurred, the purchaser and
her friend, believing they had been cheated, pursued defendant’s car. Physical confrontations
between the parties occurred in two parking lots and in an intersection. At one point during the
confrontations, defendant pointed a gun at the purchaser’s friend, saying “Don’t f***ing follow us
anymore.” Defendant pointed the gun at the victim for three or four seconds while standing
approximately four feet away from her, then returned the gun to his waistband. The purchaser and
her friend reported the incident to the police. When police stopped defendant’s vehicle, they found
a gun that matched the description of the gun reportedly used by defendant to threaten the victim
located approximately 100 yards behind the vehicle.
Defendant was charged with felonious assault. He initially requested a jury trial, but later
requested a bench trial after learning that he could obtain a bench trial about one month sooner
than a jury trial. At the conclusion of the bench trial, the trial court convicted defendant of
felonious assault, MCL 750.82, and sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to 30 months to 15 years in prison. Defendant now appeals.
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II. DISCUSSION
A. JURY TRIAL WAIVER
Defendant contends that he did not voluntarily waive his right to a jury trial because he
was forced to choose between obtaining a jury trial or a speedy trial, and that his waiver therefore
was invalid. We disagree.
This issue is unpreserved because defendant failed to raise it before the trial court. See
People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011). We review unpreserved
constitutional or nonconstitutional issues for plain error affecting substantial rights, meaning that
the plain error prejudiced defendant by impacting the outcome of the lower court proceedings.
People v Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019). We observe that “[r]eversal is
warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018) (quotation marks and
citation omitted).
The United States and Michigan Constitutions guarantee a criminal defendant the right to
a jury trial. US Const, Am VI; Const 1963, art 1, § 20; People v Cook, 285 Mich App 420, 422;
776 NW2d 164 (2017). A defendant may waive the right to a jury trial with the consent of the
prosecutor and the approval of the trial court, but the waiver must be both knowing and voluntary
to be valid. MCR 6.401; Cook, 285 Mich App at 422. In that regard, MCR 6.402(B) provides:
Before accepting a waiver, the court must advise the defendant in open court of the
constitutional right to trial by jury. The court must also ascertain, by addressing
the defendant personally, that the defendant understands the right and that the
defendant voluntarily chooses to give up that right and to be tried by the court. A
verbatim record must be made of the waiver proceeding.
If the trial court complies with MCR 6.402(B), there is a presumption that the defendant’s waiver
of his right to a jury trial was knowingly, voluntarily, and intelligently made. People v Mosly, 259
Mich App 90, 96; 672 NW2d 897 (2003).
In this case, at a status conference held in December 2020, the trial court informed
defendant that his jury trial, scheduled to begin January 6, 2021, had been rescheduled to begin
February 3, 2021, because of COVID-19-related health guidelines limiting the number of people
at gatherings. Defendant asked if his trial could be held earlier if he chose a bench trial, and the
trial court directed defendant to discuss the issue with his attorney. After a discussion with his
attorney, defendant agreed to waive his right to a jury trial and to have a bench trial at the soonest
possible date. The trial court clarified to defendant that a bench trial could be held beginning
January 6, 2021, or a jury trial could be held beginning February 3, 2021. Defendant informed the
trial court that he wished to proceed with a bench trial.
Before accepting defendant’s waiver, the trial court complied with MCR 6.402(B) by
advising defendant on the record of his constitutional right to trial by jury and addressing defendant
personally to determine that defendant understood his right to a jury trial and was voluntarily
waiving that right. See People v Williams, 275 Mich App 194, 196-197; 737 NW2d 797 (2007).
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Before the start of defendant’s bench trial, the trial court again confirmed on the record that
defendant agreed to waive his right to a jury trial, and defendant acknowledged on the record that
he did.
On appeal, defendant does not contend that the trial court failed to comply with MCR
6.402(B), but instead argues that his waiver was not voluntary because if he had chosen a jury trial
he would have been denied a speedy trial. Both the United States and Michigan Constitutions
recognize the right of a criminal defendant to a speedy trial. US Const, Am VI; Const 1963, art 1,
§ 20; see also MCL 768.1; MCR 6.004(A). Whether a defendant has been denied a speedy trial
depends upon (1) the length of delay, (2) the reason for the delay, (3) whether the defendant
asserted the right to speedy trial, and (4) whether the defendant was prejudiced. People v Williams,
475 Mich 245, 261-262; 716 NW2d 208 (2006). The length of delay is calculated from the date
the defendant was arrested. Id. at 261. A delay of more than 18 months is presumptively
prejudicial; if the delay is less than 18 months, the defendant must demonstrate that he was
prejudiced by the delay. People v Cain, 238 Mich App 95, 112; 605 NW2d 28 (1999).
In this case, defendant was arrested on August 1, 2020, and his bench trial was conducted
beginning January 6, 2021. If defendant had chosen to proceed with a jury trial, the trial was
scheduled to commence February 3, 2021. Because a jury trial would have been provided to
defendant within 18 months after his arrest, there is no presumption of prejudicial delay if
defendant had chosen a jury trial, and defendant has not demonstrated that the delay would have
resulted in prejudice.
In addition, it is not coercive for a trial court to offer a defendant the opportunity of an
earlier trial court date for a bench trial that entails the defendant waiving his right to jury trial. See
Williams, 275 Mich App at 197. Defendant in this case was not threatened with delay if he chose
a jury trial; rather the trial court offered defendant the opportunity of an earlier trial date for a
bench trial. See id.
Defendant further contends that he was “coerced” into waiving his jury trial right by virtue
of the fact he was a parole violator, meaning that he would not receive credit for time served in
jail while awaiting trial in this matter should he be sentenced to an additional period of
incarceration. It simply cannot be said that defendant’s strategic choice to avoid serving what
would have amounted to an additional month of so-called “dead time” while in jail, resulting from
his own criminal history, coerced him into waiving his right to a jury trial. Rather, it appears
defendant freely exercised a choice to expedite his trial for what appeared to be a logical reason.
We conclude that the trial court correctly determined that defendant understood his right to a jury
trial and voluntarily waived that right. The trial court complied with MCR 6.402(B); as a result,
there was a presumption that defendant’s waiver was knowingly, voluntarily, and intelligently
made, which defendant failed to overcome. See Mosly, 259 Mich App at 96.
B. PRIOR-CONVICTION IMPEACHMENT EVIDENCE
Defendant contends that the trial court erred by failing to exclude evidence of his prior
theft-related convictions. We disagree that the trial court committed reversible error.
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Defendant failed to preserve this issue for review by objecting to the admission of evidence
of his prior convictions on the same basis he now raises on appeal. We review this unpreserved
issue for plain error affecting defendant’s substantial rights, Thorpe, 504 Mich at 252, and will not
reverse unless the “plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Randolph, 502 Mich at 10 (quotation marks and citation omitted). We also observe
that under MCL 769.26, “[n]o judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of misdirection of the jury,
or the improper admission or rejection of evidence, or for error as to any matter of pleading or
procedure, unless in the opinion of the court, after an examination of the entire cause, it shall
affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
Under MRE 609, the credibility of a witness may be impeached with evidence that the
witness has been convicted of certain crimes. People v Snyder, 301 Mich App 99, 105; 835 NW2d
608 (2013). MRE 609 states, in relevant part:
(a) General Rule. For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall not be admitted unless
the evidence has been elicited from the witness or established by public record
during cross-examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one year or
death under the law under which the witness was convicted, and
(B) the court determines that the evidence has significant probative value
on the issue of credibility and, if the witness is the defendant in a criminal trial, the
court further determines that the probative value of the evidence outweighs its
prejudicial effect.
(b) Determining Probative Value and Prejudicial Effect. For purposes of
the probative value determination required by subrule (a)(2)(B), the court shall
consider only the age of the conviction and the degree to which a conviction of the
crime is indicative of veracity. If a determination of prejudicial effect is required,
the court shall consider only the conviction’s similarity to the charged offense and
the possible effects on the decisional process if admitting the evidence causes the
defendant to elect not to testify. The court must articulate, on the record, the
analysis of each factor.
(c) Time Limit. Evidence of a conviction under this rule is not admissible
if a period of more than ten years has elapsed since the date of the conviction or of
the release of the witness from the confinement imposed for that conviction,
whichever is the later date.
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MRE 609 “creates a presumption that evidence of prior convictions is inadmissible to
impeach a witness’s credibility,” Snyder, 301 Mich App at 105, but this presumption is overcome
by demonstrating either that the prior conviction contained an element of dishonesty or false
statement, MRE 609(a)(1), or that the prior conviction contained an element of theft and certain
other conditions are met, MRE 609(a)(2). If the prior conviction contains an element of dishonesty
or false statement, the prior conviction is admissible under MRE 609(a)(1) without further
analysis. Snyder, 301 Mich App at 105. A crime contains an element of dishonesty or false
statement if a dishonest act, such as active deceit or falsification, is an element of the offense itself.
People v Parcha, 227 Mich App 236, 243; 575 NW2d 316 (1997).
Alternatively, if a prior conviction does not contain an element of dishonesty or false
statement, but contains an element of theft, the prior conviction may be admissible under MRE
609(a)(2). When the witness is the defendant and the crime contains an element of theft, the trial
court must determine whether the conviction has “significant probative value on the issue of
credibility.” Snyder, 301 Mich App at 105. For this determination, the court should consider only
the age of the conviction and the degree to which the conviction is indicative of veracity, and admit
the prior conviction only if the trial court determines that the probative value of the evidence
outweighs its prejudicial effect. Snyder, 301 Mich App at 106. When determining prejudicial
effect, the trial court is limited to considering “only the conviction’s similarity to the charged
offense and the possible effects on the decisional process if admitting the evidence causes the
defendant to elect not to testify.” MRE 609(b). The trial court is required to state its analysis of
each factor on the record. MRE 609(b).
In this case, the trial court admitted evidence of defendant’s three prior felony convictions
for purposes of impeaching defendant’s credibility as a witness. The first was a 2018 conviction
of tampering with an electronic monitoring device, MCL 771.3f(1). That offense contains an
element of dishonesty or false statement, as it requires active deceit or falsification. As a result,
the prior conviction was admissible under MRE 609(a)(1) with no further analysis required. See
Snyder, 301 Mich App at 105.
The trial court also admitted evidence of a 2017 conviction of first-degree felony retail
fraud, MCL 750.356c, and a 2017 conviction of unarmed robbery, MCL 750.530. These
convictions do not necessarily contain elements of dishonesty or false statement within the
meaning of MRE 609(a)(1), see Parcha, 227 Mich App at 242, and therefore were not admissible
under MRE 609(a)(1). However, defendant’s convictions of first-degree retail fraud and unarmed
robbery are both punishable by more than one year’s imprisonment and both contain an element
of theft, see MCL 750.356c(1); MCL 750.530, and thus the prior convictions potentially were
admissible under MRE 609(a)(2) if the trial court determined “that the probative value of the
evidence outweighs its prejudicial effect.” The trial court in this case, however, stated only, “Okay.
If you want to ask him about the convictions for theft, it would be admissible under the court rule,”
without articulating on the record its analysis of the factors in MRE 609(a)(2)(B). Because the
trial court admitted defendant's 2017 convictions for retail fraud and unarmed robbery as
impeachment evidence without conducting the analysis required by MRE 609(a)(2)(B) and (b),
the trial court abused its discretion.
We conclude, however, that any error by the trial court in this regard was harmless. As
noted, we review this unpreserved issue for plain error affecting defendant’s substantial rights.
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Defendant has not demonstrated that he was prejudiced by the admission of the prior convictions
for purposes of impeaching his credibility in his bench trial. Even if defendant's convictions for
retail fraud and unarmed robbery were not admitted, it is unlikely that the trial court would have
found that defendant did not assault the victim with a gun. The victim testified that on the day in
question, defendant pointed a gun at her while threatening her. A gun matching the description
given by the victim and her friend was found by police approximately 100 feet behind defendant’s
vehicle at the time police stopped the vehicle. In light of the substantial evidence of defendant’s
guilt, there is no basis to conclude that the trial court’s erroneous admission of the impeachment
evidence resulted in the conviction of an actually innocent defendant or that the evidentiary error
seriously undermined the fairness, integrity, or public reputation of the proceedings. To the extent
that error occurred, it was harmless. MCL 769.26.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that defense counsel was ineffective for failing to object to the
admission of evidence of defendant’s prior felony convictions. We disagree.
This issue is unpreserved because defendant failed either to move for a new trial or to file
with this Court a motion to remand for a Ginther1 hearing. People v Heft, 299 Mich App 69, 80;
829 NW2d 266 (2012). We review an unpreserved claim of ineffective assistance of counsel for
error apparent on the record. People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437
(2020). “To establish a claim of ineffective assistance of counsel, a defendant must show both that
counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” Id. at 228. Counsel’s performance has prejudiced the defendant if it is reasonably
probable that, but for counsel’s error, the result of the proceedings would have been different.
Heft, 299 Mich App at 80-81.
As discussed, in this case the admission of defendant’s convictions of first-degree retail
fraud and unarmed robbery without appropriate analysis by the trial court was an abuse of
discretion, but any error was harmless. In light of the harmless nature of the error, trial counsel’s
failure to object to the admission of the evidence was not outcome determinative.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Christopher P. Yates
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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