STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
April 15, 2004
v No. 244276
Wayne Circuit Court
JAMIE E. PIERCE,
LC No. 01-014270
Before: Cavanagh, P.J., and Gage and Zahra, JJ.
Defendant was convicted by a jury of third-degree criminal sexual conduct (CSC III),
MCL 750.520d(1)(b). He was sentenced as a fourth habitual offender, MCL 769.12, to a prison
term of ten years to life. We affirm, but remand for resentencing.
Defendant first argues that reversal is required because of the admission of a prior ?mug
shot? of him which was irrelevant and unduly prejudicial since it revealed that he had previously
been arrested. However, defendant acknowledged during his direct examination testimony that
he had previously pleaded guilty to a breaking and entering charge. Thus, assuming that
defendant?s ?mug shot? argument is properly preserved, we conclude that any error in its
admission does not warrant appellate relief because it is not more probable than not that it was
outcome determinative, inasmuch as defendant?s own testimony made clear that he had a prior
criminal record. See People v Phillips, 469 Mich 390, 396; 666 NW2d 657 (2003).
Next, defendant argues that the admission of Lieutenant Lawrence Newton?s testimony
regarding his failure to attend a scheduled polygraph examination denied him a fair trial.
However, the first mention of defendant?s failure to take a scheduled polygraph examination
occurred during defense counsel?s cross-examination of Lieutenant Newton:
Q. So about a little over 2 months it took to get a warrant on this case?
Q. Is that unusual?
A. Due to the circumstances, no it is not.
Q. What do you mean circumstances?
A. I attempted to get [defendant] to take a polygraph for me? [sic] Q. That was never done?
A. No, he never showed up.
In light of this exchange, we reject defendant?s characterization of Lieutenant Newton?s
reference to the scheduled polygraph examination as ?unresponsive.? Rather, his reference to his
attempt to get defendant to take a polygraph examination was directly responsive to defense
counsel?s inquiry of what he meant in his preceding answer by referring to ?circumstances.?
Indeed, it appears that Lieutenant Newton would have been unable to provide an honest and
meaningful answer to defense counsel?s question about what he meant by ?circumstances?
without stating that fact. In People v Riley, 465 Mich 442, 448; 636 NW2d 514 (2001), our
Supreme Court found that any error in the admission of incriminating testimony was waived
where the witness was called by the defense and the defendant knowingly took the risk that the
witness might incriminate him. Likewise, in this case, defense counsel asked Lieutenant Newton
about the circumstances leading to the delay between the report of the incident and defendant?s
arrest. In light of defendant?s testimony on direct examination acknowledging that a polygraph
examination had been scheduled, it is apparent that defendant knew of this examination having
been scheduled in this time period. Thus, the defense waived any claim of error based on
Lieutenant Newton mentioning the scheduled polygraph examination by undertaking questioning
that required him to explain the circumstances of the delay.
Moreover, later during defense counsel?s cross-examination of Lieutenant Newton, the
following exchange occurred:
Q. Did you offer him [defendant] a polygraph, at that point?
A. I believe I offered him a polygraph on two different occasions. At one point it
was scheduled and he failed to show.
Q. And the other time?
A. I?m not sure of the date.
Q. Did you offer him a second time?
A. Yes, I did.
Q. None were ever administered?
A. That?s correct.
This questioning by defense counsel, directly eliciting testimony about Lieutenant Newton
offering defendant a polygraph examination, further supports our conclusion that defendant
waived any claim of error regarding Lieutenant Newton?s testimony concerning this matter.
Notably, the prosecutor asked no question of Lieutenant Newton during either direct or redirect
examination that in any way referenced his request to defendant to take a polygraph examination,
or defendant?s response to it. Thus, there is no basis for the representation in defendant?s brief
on appeal that the prosecutor offered testimony that defendant refused a polygraph examination.
Defendant also asserts that the prosecutor improperly referenced his refusal to take a
polygraph examination in closing argument. In the remarks in question, which did not receive an
objection below, the prosecutor stated that the police ?waited two months before they went out to
pick [defendant] up? and referred to the police as ?giving him the opportunity to exonerate
himself.? Defendant asserts that this was clearly an implicit reference to his failure to submit to
a polygraph examination. However, in context, the prosecutor also referred to the police taking
statements from defendant and appeared to question defendant?s assertion that he fled because he
was afraid of the police. Accordingly, the pertinent argument could reasonably be understood as
attacking defendant?s explanation for why he fled rather than referencing his refusal or failure to
take a polygraph examination. Thus, there was no plain error affecting defendant?s substantial
rights so as to warrant appellate relief for this unpreserved matter. See People v Hawkins, 245
Mich App 439, 447; 628 NW2d 105 (2001).
Next, defendant argues, and the prosecution agrees, that his sentence of ten years to life
imprisonment is improper. We agree. This sentence is improper because it violates MCL
769.9(2), which provides that ?[t]he court shall not impose a sentence in which the maximum
penalty is life imprisonment with a minimum for a term of years included in the same sentence.?1
A sentence is invalid when it is based on ?a misconception of law.? Thus, resentencing is
required. See People v Foy, 124 Mich App 107, 113; 333 NW2d 596 (1983) (remanding for
resentencing with regard to an invalid sentence of ten years to life).
Defendant also attacks the trial court?s decision to depart from the sentencing guidelines
and argues that a sentence of life imprisonment in this case constitutes cruel and unusual
punishment. However, because defendant?s sentence is invalid and resentencing is required, it is
premature to reach those issues. In particular, we do not know if the trial court will opt to
impose an indeterminate sentence or a life sentence. Further, at resentencing, the trial court may
consider additional aggravating or mitigating information about defendant based on events that
have occurred since the initial sentencing, or other information that was not available at the
original sentencing. See People v Lyons (After Remand), 222 Mich App 319, 323-324; 564
NW2d 114 (1997).
Defendant also requests that this Court order resentencing before a different judge.
However, we conclude that resentencing before a different judge is not required. In deciding
whether resentencing should occur before a different judge, we consider (1) whether the original
judge would reasonably be expected on remand to have substantial difficulty in putting aside
previously expressed views or findings determined to be erroneous or based on evidence that
1 We note that defendant was not sentenced as a sexually delinquent person. Thus, this Court?s
holding in People v Vronko, 228 Mich App 649, 658; 579 NW2d 138 (1998), that a sentence of
one day to life imprisonment on a defendant found to be a sexually delinquent person does not
violate MCL 769.9(2), is inapplicable.
must be rejected, (2) whether reassignment is advisable for the appearance of justice, and (3)
whether reassignment would entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness. People v Hill, 221 Mich App 391, 398; 561 NW2d 862
Here, there is no reason to expect that the original judge would have difficulty complying
with our directive to either impose an indeterminate sentence or a life sentence on remand.
Further, the record does not disclose any indication of inappropriate bias against defendant that
would require resentencing before a different judge. While the trial court referred to defendant
as a ?dangerous predator,? that characterization was justified in light of defendant?s prior
convictions in two separate incidents of attempted CSC III, together with his CSC III conviction
in this case. While defendant also criticizes the trial court?s reliance on information in a
presentence report for a separate case in which defendant had sexual relations with minors, we
see no reason why this calls into question the trial court?s fairness. We also find no basis for
ordering resentencing before a different judge based on the trial court?s remark that it was
?curious and dismayed that a young woman?s mother would write a letter supporting this
defendant with the background that is on paper.? This remark was apparently directed at a letter
written by defendant?s mother-in-law. It was not unreasonable for the trial court to indicate that
it would not consider that letter as a mitigating factor, or to further express dismay and concern
that the mother of defendant?s wife would voice support for him in light of his prior criminal
record for attempted sexual assault offenses.
Finally, defendant advances claims of ineffective assistance of counsel. First, defendant
requests a remand to establish factual support for his claim that trial counsel failed to investigate
and call possible exculpatory witnesses. After review of the motion for remand and its
supportive documentation, we deny that a remand for an evidentiary hearing is warranted. The
proffered testimony via the affidavits supporting the motion only accounts for defendant?s
whereabouts before 8:00 p.m. and after 9:15 p.m., leaving a period of time consistent with the
victim?s testimony in which defendant could have committed the crime. Further, the affidavits
only offer inadmissible hearsay evidence that the victim allegedly falsely accused another person
of criminal sexual conduct. Accordingly, remand is not necessary. See MCR 7.211(C)(1).
Defendant also argues that trial counsel was ineffective for failing to timely object to
Lieutenant Newton?s testimony regarding defendant?s failure to submit to a polygraph
examination, and for failing to object to the prosecutor?s alleged references to this matter in her
closing argument. Because there was no evidentiary hearing regarding this matter, our review is
limited to errors apparent on the record. People v Wilson, 257 Mich App 337, 363; 668 NW2d
To establish a claim of ineffective assistance of counsel, a defendant must show (1) that
counsel made errors so serious that counsel was not performing as the counsel guaranteed by the
Sixth Amendment and (2) a reasonable probability that the outcome of the proceeding would
have been different but for counsel?s error. Id. at 362. There is a strong presumption that
counsel?s performance constituted sound trial strategy. Id. With regard to trial counsel?s failure
to object to Lieutenant Newton?s testimony referencing defendant?s failure to attend a scheduled
polygraph examination, we conclude that defendant has not overcome the presumption that this
was reasonable trial strategy. As previously discussed, Lieutenant Newton?s reference to this
matter was responsive to questioning by trial counsel.2 Trial counsel could reasonably have
concluded that objecting to the reference to the polygraph examination under these
circumstances would have made it appear to the jury that the defense feared this information,
which had already been placed before the jury. Rather, trial counsel appears to have attempted to
dispel any potential prejudice by eliciting testimony from defendant that he did not go to the
scheduled polygraph examination because he did not have an attorney. Defendant has not
overcome the presumption of reasonable trial strategy. With regard to the prosecutor?s closing
argument, she never expressly referred to defendant?s scheduled polygraph examination.
Presumably, defendant is referencing the prosecutor?s remark discussed earlier, in which she
referred to the police giving defendant an opportunity to ?exonerate? himself. As we concluded
previously, considered in context, it is not clear that this remark was intended to or would have
been understood by the jury as referring to defendant?s failure to attend a polygraph examination.
Accordingly, trial counsel?s failure to object to the prosecutor?s remarks was in the realm of
reasonable trial strategy, i.e., to avoid drawing further attention to the matter. In sum, defendant
has not established that counsel was ineffective.
Affirmed, but remanded for resentencing. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
/s/ Brian K. Zahra
2 We note that defendant does not argue that trial counsel was ineffective for asking the questions
that led to Lieutenant Newton?s references to the scheduled polygraph examination.