People v. Houston

532 N.W.2d 508, 448 Mich. 312

• Court: Michigan Supreme Court
• Decided: March 22, 1995
• Docket: 96068, (Calendar No. 3)
• Status: Published

Opinions

Boyle, J.

The defendant challenges his sentence on the grounds that the sentence is disproportional and that the trial court violated the attorney-client privilege. We find that the defendant’s sentence does not violate the requirements of People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and that the sentencing judge did not violate the defendant’s attorney-client privilege. Therefore, we affirm the decision of the Court of Appeals.¹

i

FACTS

Upon discovering that the mother of his three female first cousins would be out of town at a funeral, the defendant persuaded the oldest cousin to allow him to spend the night with them in their home. The girls had been told by their mother not to let anyone in. When the defendant arrived late in the evening, the fourteen-year-old complainant was already asleep on the living room couch, her bed. Following several hours of conversation between the defendant and the complainant’s two older sisters, aged eighteen and sixteen respectively, and the eighteen-year-old’s departure to the hospital with a sick child, the defendant was left alone to sleep on the living room floor. Sometime thereafter, the defendant placed a pillow over his sleeping fourteen-year-old cousin’s face, pulled down the girl’s pants, and proceeded to penetrate her vaginally.

Part of this assault was witnessed by the complainant’s sixteen-year-old sister, who entered the living room in response to the noise of something falling. Once there, she observed the defendant, naked from the waist down, on top of the victim, holding a pillow over her face.² When she asked the defendant what he was doing on top of her sister, he replied, 'T don’t know,” and "I ain’t doing nothing to her.” The sister went back to her bedroom.³ Later, the victim, crying, came into the bedroom, told her sister that "John Henry had raped her.” They went into the bathroom to wash out the victim’s underwear, which "had white stuff ” in them.

The defendant never admitted his guilt, contending that the victim fabricated the offense for reasons known only to herself. Moreover, the defendant testified at trial that many of the incriminating statements he gave to the detective in charge of the case that bore his signature were incorrectly transcribed because both he and the detective were "half asleep.”

The jury took one hour to convict the defendant of first-degree criminal sexual conduct. Finding the guidelines range of six to ten years inadequate, the trial judge sentenced the defendant to twenty-five to fifty years in prison.

The Court of Appeals remanded the case to allow the defendant to challenge his sentence and trial counsel’s effectiveness. The successor judge, Richard Cunningham, held an evidentiary hearing over five days on these issues that fills 221 pages. Defendant called several family members in support of the claim that the trial attorney should have placed them on the stand. The testimony may be fairly summarized as irrelevant to the issue of commission of the offense, as indicating that the incident had caused substantial difficulty in the family because defendant’s supporters refused to accept defendant’s guilt, and as having been presented at the defendant’s request. At the conclusion of that lengthy hearing, Judge Cunningham rejected the defendant’s claim that counsel had been ineffective, and "acting independently of Judge Talbot’s decision,” again sentenced the defendant to twenty-five to fifty years in prison.

Judge Cunningham noted that the defendant had received eleven major misconduct tickets during his time in prison. He also concluded that a witness called by the defendant, a former fellow inmate, was lying when he testified that he, not defendant, had started all the fights leading to the misconduct tickets. The judge also noted the defendant’s absolute lack of regard for the victim and lack of remorse for the crime.

The sentencing information report listed the following reasons for departure:

(1) In general, the guidelines for esc offenses fail to adequately address the seriousness of the crime. Guidelines are based upon actual sentences imposed during a time prior to the "feminist movement’s” success in having society in general, and judges in particular, recognize the "special” nature of such crimes.

(2) The guidelines fail to take into account the family relationship between the actor and the victim.

(3) This is a resentencing. The guidelines fail to take into account the eleven prison misconducts by this defendant since the original sentence.

(4) Guidelines fail to take into account defendant’s absolute lack of remorse and low potential for rehabilitation.

(5) Guidelines are not sufficient to reflect the very high degree of exploitation in this case.

The Court of Appeals affirmed this judgment of sentence. The Court affirmed the decision that trial counsel had not been ineffective, rejected defendant’s argument that the judge forced appellate counsel to violate the attorney-client privilege, and held that defendant’s sentence was proportionate to the seriousness of the offense. Unpublished opinion per curiam, issued January 13, 1993 (Docket No. 117039) (after remand). This Court granted the defendant’s application for leave to appeal. 445 Mich 880 (1994).

II

LEGALITY OF THE DEFENDANT’S SENTENCE

The defendant challenges the validity of his sentence under People v Milbourn, supra, in which this Court held that some sentences that fall within the legislatively prescribed range may nevertheless be illegally long or short. According to Milbourn, a trial court abuses its discretion when it imposes a sentence that is not "proportional” to the seriousness of the matter.

Under Milbourn, the maximum sentence for a given offense is proportionate where the circumstances surrounding the offense place it in the most serious class with respect to the particular crime. Id. at 654; see also People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994).

The case at bar presents neither the maximum nor minimum sentence, and thus Milbourn directs courts to consult the second edition of the Michigan Sentencing Guidelines as an aid to determining the proportionality of the sentence. Under Milbourn, the "key test” of proportionality is not whether the sentence departs from or adheres to the recommended range, but whether it reflects the seriousness of the matter. Thus, it is possible that a sentence within the guidelines range could be disproportionately high or low. 435 Mich 661.

In the absence of factors legitimately considered at sentencing and not adequately considered by the applicable guidelines, a departure from the recommended range indicates a possibility that a sentence may be disproportionate. Id. at 657, 661. However, Milbourn did not state or establish that any factors accounted for in the guidelines had been adequately considered or appropriately weighed. As we have recently noted, "[n]either the grids nor Milbourn dictate that a departure from guidelines is to be arithmetically measured to determine the propriety of a given sentence.” Merriweather, supra, 447 Mich 808. The United States Court of Appeals for the First Circuit expressed the same concept in United States v Ocasio, 914 F2d 330, 336 (CA 1, 1990), in these words:

Although some other courts have, from time to time, suggested formulaic approaches to assessing the reasonableness of particular departures, . . . we are wary of such pat answers.

In Milbourn, the Court repeatedly observed that sentencing judges are not required to adhere to the guidelines. The majority explained that "the guidelines may not be a perfect embodiment of the principle of proportionality,” 435 Mich 661, that they "do not have a legislative mandate,” id. at 656, and that "requiring] strict adherence to the guidelines would effectively prevent their evolution,” id. at 657.

In the instant case, the trial judge found that the recommended range was inadequate to reflect the seriousness of this offense. We agree with the finding and conclude that the sentence imposed satisfies the proportionality requirement of Milbourn.

In addition, assuming arguendo that the guidelines range is adequate to reflect the seriousness of the offense, we find that the sentence did not constitute an abuse of discretion because the offense involved circumstances not accounted for, or accounted for inadequately, in formulating the guidelines.

A. THE SERIOUSNESS OF THE CRIME

Judge Cunningham explained that he imposed a sentence higher than the range set by the Sentencing Guidelines Advisory Committee because that range is too low:

We have seen what I find to be ridiculously low guidelines in the offense of Criminal Sexual Conduct in the First Degree, just in general.

The observation is well taken. For example, for a defendant who had no prior convictions and who raped a victim at knife point but did not actually cut or inflict permanent injury on his victim, the guidelines would recommend a one-year minimum sentence as appropriate.⁴

For this defendant, who raped a fourteen year old by putting a pillow over her face, the guideline sentence — two to eight years — is so stunningly low that the trial judge could only think of one explanation]_

I think that the guidelines for this offense reflect a time when young women were treated as property, when this wasn’t considered a very serious offense at all.

While the accuracy of this statement is debatable, that does not undermine the conclusion that the range is too low.

Milbourn specifically contemplated that judges could impose sentences higher than the guidelines’ ránge when that range is too low:

[T]rial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. [Id. at 657.]

For the majority, Justice Brickley⁵ wrote:

[T]he key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range. [Id. at 661.]

While we agree with the trial judge’s conclusion that the recommended range is too low, the issue is not whether we agree with the trial court’s selection of an appropriate sentence.⁶ Unless there is some basis for deciding what range would have been appropriate, we cannot reliably conclude that the sentence was disproportionate.

B. FACTORS NOT CONSIDERED BY THE GUIDELINES

Alternatively, Judge Cunningham pointed to three aggravating factors that were not accounted for in the guidelines. First, he found that the guidelines fail to account for the family relationship between the defendant and the victim. The Milbourn majority considered any such prior relationship an archetype justification for departure:

In some cases, there may be important sentencing factors that are not included in the sentencing guidelines. Perhaps the clearest example of such a factor is the prior relationship, if any, between the victim and the offender. [Id. at 660.]

The trial judge found the relationship to be an aggravating factor.

Second, the judge considered the fact that the defendant received eleven misconduct tickets in prison before being resentenced. Misbehavior after arrest is clearly a legitimate factor to consider at sentencing. Texas v McCullough, 475 US 134; 106 S Ct 976; 89 L Ed 2d 104 (1986); People v Mazzie, 429 Mich 29, 35; 413 NW2d 1 (1987) (opinion of Brickley, J.); id. at 43-47 (Boyle, J., concurring in part and dissenting in part). The guidelines do not account for misconduct in custody. However, just as an exemplary custodial record might be found to be a mitigating circumstance, misconduct in custody may be an aggravating circumstance indicating a disposition to violence or impulsiveness.

Third, the judge found that the guidelines failed to account for the "defendant’s absolute lack of remorse and low potential for rehabilitation.” Both factors are legitimate considerations in determining a sentence. See People v Wesley, 428 Mich 708; 411 NW2d 159 (1987) (lack of remorse); People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972) (potential for rehabilitation).

In addition, although not referenced in the sentencing information report, the judge specifically found on the record that the inmate produced at defendant’s request had lied. In imposing sentence, a trial court may consider a defendant’s own perjury where there is a rational basis in the record for concluding that the defendant wilfully made a flagrantly false statement on a material issue. People v Adams, 430 Mich 679; 425 NW2d 437 (1988). Within constitutional limits, the federal sentence guidelines provide for upward sentence enhancement where a defendant wilfully suborns untruthful testimony during “a sentencing proceeding.” USSG § 3C1.1; Hutchinson & Yellen, Federal Sentencing Law & Practice (2d ed), pp 485-487.

Finally, by the time the Ginther⁷ hearing was concluded, the defendant was making allegations that his appellate attorney, who served him commendably in difficult circumstances, was also ineffective.

C. FACTORS CONSIDERED WITHIN THE GUIDELINES

The sentencing judge also pointed to a factor that he felt was considered inadequately: the high degree of exploitation of the victim. The record presents a pattern of exploiting family relationships that began with defendant going to the home on the night in question and continued throughout the evidentiary hearing. Producing family members to testify who had no information relevant to the charge could have been reasonably viewed by the sentencing court as continued exploitation of the victim by dividing the family over the incident. As the trial court expressly observed in response to defense counsel’s claim regarding the effect on the victim:

That would be absolutely no value to me coming from these people. I’ll tell you why. Because it’s very clear to me that the concern here is with Mr. Houston, it is no way at all to that young woman. So, A, I would find I would have a concern about the believability of it. But B, I can find where that young woman’s going to have to suppress around her family anything that she feels, she can’t let out anything she feels about this incident because of the lack of support she’s been given.

The dissent’s assertion that the guidelines range "already reflected a family relationship between the defendant and the victim,” post at 345, overlooks the fact (apparent in the trial court testimony and the testimony at the evidentiary hearing) that the familial relationship alluded to was not simply the relationship between the victim and the defendant. Moreover, the trial judge’s view agreed with the Legislature’s view of the seriousness of the offense. The Legislature recognized that a familial relationship between the victim and the offender is an aggravating factor and established that, by virtue of the family relationship, the crime in question is "punishable by imprisonment in the state prison for life or for any term of years.” MCL 750.520b(2); MSA 28.788(2)(2).

D. ANALYSIS OF THE SENTENCE

In summary, the record reflects that the trial court considered defendant’s exploitation of the victim, postcustody misconduct, absolute lack of remorse, production of perjured testimony, and exploitation of the family relationship as reasons for the sentence imposed. Contrary to the dissent’s assumption, the guidelines furnish no reliable basis for the Court to conclude that defendants presenting similar patterns would have been sentenced within the guidelines range of two to eight years.

It is likely, although not provable, that a defendant found guilty by a jury of esc i who failed to express remorse while not expressly denying guilt, engaged in substantial subsequent misconduct, exploited the family relationship, and produced testimony found to be perjurioús would be sentenced in the range of the highest twelve and one-half percent of sentences the guidelines, do not reflect.⁸

It is likely, although again not provable, that the guidelines range of two to eight years represents to some significant degree cases disposed of with explicit or implicit sentence concessions. Federal guidelines data, for example, indicate that guilty pleas, on average, result in considerably lower sentences, thirty to forty percent lower than what would have been imposed had the defendant been convicted at trial.⁹ If one assumes that some portion of the pool of sentences falling into the range of two to eight years was imposed as a result of waiver trials, it is again likely that this defendant was not in fact similar to others within that grid. Taking these considerations together in light of our experience that the vast majority of defendants express remorse after conviction, it is highly likely that the guidelines’ ranges reflect sentences of those who have received systemic sentence concessions and demonstrated potential for rehabilitation by expressing remorse. In short, given that the guidelines treat the same real offenses differently depending on the method of disposition, we have no ground in the guidelines for concluding how other judges would have addressed this defendant’s situation.

By allowing departures when the guidelines consideration of a particular factor is "not adequate,” Milbourn allows sentencing judges to reweigh the guideline variables. It is through this process that the trial judges can remove the distortions induced by a classification system that is, by necessity, overly simplistic. The data that form the basis for the range within each cell have been filtered¹⁰ through the point system formulated by the Sentencing Guidelines Advisory Committee. While compilation of empirical data and considerations about ease of use required a relatively simple methodology, application of that methodology to concrete cases can be very questionable.¹¹_ We can assume that there are other cases of intrafamilial sexual assaults that produce such intrafamily conflicts, that there are sentences based on subsequent custodial misconduct, that there are cases where the defendant’s sentence reflects a trial court’s finding of lack of regard , for the victim, and lack of remorse, including the production of perjured testimony. It is entirely possible that defendants like Mr. Houston, who have been found guilty by a jury of taking advantage of younger relatives, receive much higher sentences than the great number of other defendants regardless of which cell they fall into. If this were the case, those sentences would not be reflected in the guideline ranges on the assumption that they make up only a small percentage of esc i convictions. However, we have no way of knowing to what extent, if at all, and where outside the guidelines range trial courts might sentence such defendants. Thus, the sentencing guidelines range is simply inapplicable to Mr. Houston.

III

THE POSITION OF THE DISSENTING OPINION

We reject the dissent’s conclusion that the trial court’s considerations were already factored into and accounted for by the Criminal Sexual Conduct Guidelines. Cf. post at 344. To suggest that the trial judge must establish to what extent the guidelines variables do not fully account for sen-fencing factors is to impose on the trial court an obligation to prove that something is not what it does not purport to be. Trial courts would be required to demonstrate not only that the situation is dissimilar to others, but how dissimilar it is. Such an impossible burden would effectively prevent the evolution of guidelines.

There is no basis for the dissent’s assumption that the guidelines "adequately” account for the factors and weights assigned. The guidelines assign a numerical weight to certain variables on the assumption that these weights approximate what trial judges were doing in the cases within the statistical base. The committee properly and specifically disclaimed any suggestion that it had properly weighed the variables identified.¹² Thus, we are unable to conclude that the variables identify and assign the proper weight to any given factor that any judge, many judges, or most judges would assign.

From our analysis it is clear that the guidelines do not reflect certain variables that a sentencing judge may properly consider. Further, as the guidelines presently exist, no one knows for certain which variables were considered, or what weight was accorded them. Thus, it cannot be said that this offense and this offender are, in fact comparable to the situation within the applicable grid cell of the sentencing guidelines.

IV

THE ATTORNEY-CLIENT PRIVILEGE

The defendant contends that resentencing is required because the court violated his "attorney-client privilege when it ordered defense counsel to reveal that Mr. Houston had insisted on calling witnesses to his Ginther hearing.” We reject this claim because the defendant waived his privilege.¹³

At issue are inquiries directed to appellate defense counsel about whether he had consulted with his client and why so many witnesses had testified at the hearing. Contrary to the defendant’s contention that the reason for the inquiry was to determine whether defendant himself had caused such a lengthy hearing, it is clear that the question was directed to the adequacy of counsel’s representation and the implicit suggestion that counsel’s deficiencies had deprived defendant of a meaningful hearing. These inquiries immediately followed allegations by the defendant that counsel "did not come and talk to me and see me,” and had not consulted him about critical decisions. The judge questioned defense counsel about the truth of these allegations.¹⁴_

As Wigmore explains, a client’s allegation that an attorney breached his duty to the client waives the attorney-client privilege:

There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. As a fair canon of decision, the following distinctions may be suggested:

(6) When the client alleges a breach of duty to him by the attorney, the privilege is waived as to all communications relevant to that issue. [8 Wig-more, Evidence (McNaughton rev), § 2327, pp 636-638.]

The fact that the defendant’s allegation was not brought in a formal complaint against his attorney is of no consequence. In Leverich v Leverich, 340 Mich 133, 137; 64 NW2d 567 (1954), a divorce case in which the attorney was not a party, this Court noted that "[ajfter the wife claimed to the court that she had received from her attorney improper advice as a result of which she agreed to the property settlement, and she had testified in relation to such claim, it was proper and competent for the attorney to testify as to the advice he gave her.”

The defendant’s claim on the record that his attorney had not spoken with him made it necessary for the court to address the issue. While a court must carefully evaluate the statements made by a defendant and protect the privilege where appropriate, it is not required to stand idle in the face of claims that counsel made decisions "without talking to me.” The truth was the defendant himself was making the principal decisions involved in the conduct of the Ginther hearing. The trial court was not required to let stand statements on the record, unexamined and unrebutted, that would have resulted in another remand to the trial court for a hearing, this time about the effectiveness of appellate counsel. Consequently, the defendant waived any claim to privilege by making this allegation.¹⁵

333

For the foregoing reasons, we affirm the decision of the Court of Appeals.

Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.

1 The prosecution urges us to address the question whether sentence guidelines violate the separation of powers, Const 1963, art 4, § 45, and exceed the scope of judicial power, MCL 769.1(1); MSA 28.1072(1). Justice Riley and I have indicated our view that the guidelines do not establish substantive rights for defendants. See People v Polus, 447 Mich 952 (1994) (Boyle and Riley, JJ., dissenting from denial of leave to appeal).

2 The victim testified that she screamed. It seems logical that the purpose of the pillow was to muffle these cries for help.

3 The witness explained to the jury that she went back to bed because there was nothing she could do.

4 Cell i-a on the grid for first-degree esc recommends a minimum sentence between twelve and seventy-two months.

5 In this case, however, Chief Justice Brickley would determine that the sentence is disproportionate without addressing this question.

6 The Milbourn majority noted that "[sjuch trial court decisions remain, of course, subject to review in accordance with this opinion.” Id. at 657, n 25.

7 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

8 For each cell of the guidelines, the committee excluded from the recommended range approximately the highest and lowest twelve and one-half percent of actual sentences given. Consequently, the range in each cell of the guidelines reflects approximately seventy-five percent of the actual sentences studied by the committee.

9 United States Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements (1987), p 48. Data from Detroit Recorder’s Court indicate for the period 1992 through 1994 that less than five percent of cases were disposed of by jury trial.

10 The understanding that "[t]he guidelines represent the actual sentencing practices of the judiciary” is essential to any colorable claim of authority to require adherence to the guidelines under any circumstances. See Milbourn, 435 Mich 656. There would seem to be no question at all that this Court could not set any sentence or sentence range that it deemed appropriate for a given offense. Under our constitution, authority to establish sentences rests with the Legislature. Const 1963, art 4, § 45. The Legislature, in turn, has conferred authority to determine individual sentences upon trial courts alone:

A judge of a court having jurisdiction is authorized and empowered to pronounce judgment against and pass sentence upon a person convicted of an offense in that court. The sentence shall not be in excess of the sentence prescribed by law. [MCL 769.1(1); MSA 28.1072(1).]

It is only the fact that the constraint on discretion by Milbourn is ostensibly rooted in actual sentences imposed by circuit judges that gives this Court even the slightest claim of authority to declare void as too high sentences that fall within the legislatively prescribed range.

11 For example, for first-degree criminal sexual conduct, a defendant would receive twenty-five offense points if the victim broke her arm. By itself, twenty-five points would place the offender in offense level III.

A different offender could also receive twenty-five points by pointing a gun at the victim and then discharging it without injuring the victim, five points if the victim sustained serious psychological injury necessitating professional treatment, and ten points for being the leader if the rape involved a gang of defendants. This total of forty points would also place defendant at offense level hi. Assuming he had the same prior record as the first defendant, this very different offender would also fall within the same range.

12 The committee did not regard the original guidelines as adequately assessing offenders in a given cell grid as in fact being similar to each other, and revised the guidelines to attempt to reflect factors of greater or lesser importance in judicial decision making. McComb, An overview of the second edition of the Michigan Sentencing Guidelines, 67 Mich B J 863, 864 (1988). The committee’s goal was to reflect the current practice of "the majority” of judges during a given period. However, the second edition of the guidelines did not purport to reflect that the weight-assigned variables adequately accounted for the significance of given factors in a given sentence.

Under the federal sentence guidelines scheme, the sentencing commission has been given legislative authority to determine guidelines, 28 USC 994(a). The variables used to score the guidelines are thus "adequate” to reflect congressional intent because they were enacted by Congress.

13 Because of our resolution of this issue, we need not decide whether a violation of the defendant’s attorney-client privilege at sentencing would require resentencing.

14 In the defendant’s articulation, he again asserted that h.is trial attorney, Mr. Black, did not adequately represent him. After the defendant completed his statement, the following exchange took place:

The Court: If there was any problem between you and Mr. Black,- it wasn’t his ineffectiveness, sir. It was your inability to listen to your attorney, your inability to comport yourself in the courtroom. You know everything. You’re going to tell everybody, you’re going to tell Mr. Shrewsbury, you’re going to tell Mr. Black, you’re going to tell the Court. I have seen that type of behavior from you here. It even leads me to believe stronger that you did not suffer any ineffective assistance by Mr. Black. You made Mr. Black’s job extremely difficult.

Defendant Houston: May I speak?

The Court: Continue.

Defendant Houston: You said I made Mr. Black’s job worse and difficult. No, I did not. Mr. Black did not represent me. I do not fault Mr. Dennis Shrewsbury if he done his job, but Mr. Dennis Shrewsbury, he did not come and talk to me and see me. That’s the same way Mr. Black done to me in 1987. They made decisions without talking to me. I come in the courtroom and all of a sudden everything come at me at one time. What do I supposed to do? I’m trying to talk to him. I didn’t get harsh with him. This is my life on the line and I have a right to consult with my attorney, but there’s a time and place to consult with your attorney, not in the courtroom all at one time, man. Your attorney is supposed to come and see you and talk with you about things, but when you come in the courtroom and everything come at you at one time . . .

The Court: Okay, Mr. Houston, stop right there. Mr. Shrews-bury, this is probably the longest evidentiary hearing I’ve ever held. In that regard, sir, have you had occasion to talk to Mr. Houston during any of these many, many proceedings, have I given you the opportunity to have private conversations with him or is Mr. Houston accurate when he says that he did not have time to consult with you?

Mr. Shrewsbury: I have talked to Mr. Houston. I have not seen him in the jail. I have talked to him here in the court and in the lock-up.

The Court: And the number of times we’re here in the court and lock-up, was there any reason to see him in the jail?

Mr. Shrewsbury: I guess that’s a matter of opinion, Your Honor.

The Court: In your opinion?

Mr. Shrewsbury: Do I have to answer that?

The Court: Yes sir.

Mr. Shrewsbury: Your Honor, I didn’t see any other need to discuss other problems or other parts of the case except what we did here in court.

The Court: In your professional opinion, sir, just in your own professional opinion, was there a need to call all these witnesses that you called or were you doing that, sir, just because your client insisted it be done?

Mr. Shrewsbury: Your Honor, I think that there was a need to call the witnesses.

The Court: All of them?

Mr. Shrewsbury: No.

The Court: And many of them were called at Mr. Houston’s insistence?

Mr. Shrewsbury: Your Honor, I think that Mr. Houston had an honest belief that these witnesses were helpful to him.

The Court: All right. I’m ready to pass sentencing. Thank you. You may sit down, Mr. Houston. All right.

15 The dissent offers no support for the assertion that the judge "treaded dangerously close to violating the defendant’s attorney-client privilege.” Post at 350.