People v. Neal

586 N.W.2d 716, 459 Mich. 72
CourtMichigan Supreme Court
DecidedDecember 15, 1998
DocketDocket 108016
StatusPublished
Cited by5 cases

This text of 586 N.W.2d 716 (People v. Neal) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Neal, 586 N.W.2d 716, 459 Mich. 72 (Mich. 1998).

Opinions

Per Curiam.

The defendant was convicted in circuit court of a drug offense. He appealed. In accordance with court rules then in effect, the court reporter prepared a transcript that omitted the jury voir dire. The Court of Appeals later affirmed the defendant’s conviction. We remand the case to the circuit court for transcription of the voir dire, and direct that the defendant has a limited right to appeal on the basis of issues that may arise from the voir dire.

i

Following a July 1993 raid on his house, the defendant was charged with possessing less than fifty grams of heroin with intent to deliver.1 In February 1994, a jury convicted him of the charged offense. He [75]*75then pleaded guilty of being an habitual offender.2 Five weeks later, the defendant was sentenced to an enhanced term of five to twenty-five years in prison.

The defendant is indigent, and so the circuit court appointed an attorney to represent him on appeal. The April 1994 appointment order indicates that the transcripts, including the trial transcript, were ordered from the court reporter. In May 1994, the court reporter filed her certificate, confirming that the transcript had been ordered. She indicated that it would be furnished in late June 1994.

On the day the reporter filed her certificate, this Court entered an order amending three court rules.3 Effective July 1, 1994, the amended rules provided that a transcript of the jury voir dire was not to be prepared “unless the defendant challenged the jury array, exhausted all peremptory challenges, was sentenced to serve a term of life imprisonment without the possibility of parole, or shows good cause . . . .”

In the present case, the court reporter finished the trial transcript on July 20, 1994, and filed it several days later. The transcript does not include the jury voir dire.

In November 1994, appointed counsel asked for permission to withdraw because of other commitments. Substitute counsel was appointed in early December.

[76]*76Shortly after his appointment, new counsel filed on the defendant’s behalf a motion for new trial, in which he raised several issues. One argument was that “[MCR] 6.425(F)(2), as amended, which excepts transcripts of the voir dire is an unconstitutional deprivation of due process.” Before the hearing on the motion, the defendant filed a written request for the voir dire transcript. He acknowledged that he did not meet the qualifications stated in the amended court rules, but said that he believed the limitation to be unconstitutional.

The circuit court denied the motion for new trial. With regard to the defendant’s request for the voir dire transcript, the circuit court relied on the court rules, as amended in 1994.

In his brief to the Court of Appeals, the defendant framed five issues. Among them was a claim that it was error to deny him a transcript of the jury voir dire. However, he did not raise a specific objection to anything that took place during the voir dire.

The Court of Appeals affirmed the defendant’s conviction.4 Concerning the defendant’s claim that it was error to deny him a transcript of the voir dire, the Court of Appeals observed that he “alleges no error during voir dire such that a copy of the transcript was necessary to vindicate any substantial right.”

Appearing in propria persona, the defendant filed a delayed application for leave to appeal in this Court. We held the application in abeyance,5 pending resolu[77]*77tion of a case in which we previously had granted leave to appeal. People v Bass, 456 Mich 851 (1997).

As explained below, we issued a final order in Bass earlier this year, and thus the present application again comes before us.

n

In People v Bass (On Rehearing), 223 Mich App 241, 255-260; 565 NW2d 897 (1997), the Court of Appeals rejected a claim that the 1994 court rule amendments violated an indigent defendant’s constitutional right to equal protection. However, the Court found that excluding the jury voir dire from the trial transcript could interfere with the defendant’s right to effective assistance of appellate counsel. The Court of Appeals explained:

In Hardy v United States, 375 US 277; 84 S Ct 424; 11 L Ed 2d 331 (1964), the Court held that, In the federal system, where a defendant has an appeal of right and Congress has enacted statutes to buttress that right, the entire transcript must be produced when appointed appellate counsel did not serve as trial counsel. The Court reasoned as follows:
“But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that. For Rule 52(b) of the Federal Eules of Criminal Procedure provides: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ The right to notice ‘plain errors or defects’ is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended. [Id. at 279-280 (emphasis added).]”
The Hardy Court held that, under the circumstances of the case, the defendant was entitled to transcripts of the court’s [78]*78charge to the jury and the testimony presented by the prosecution and the defense. Id. at 282. The Court relied on federal law and explicitly declined to consider whether a complete transcript was constitutionally required. Id.
We find that the remarks of the Hardy Court are equally applicable to the circumstances of this case. The standards for appointed appellate counsel[6] require that counsel assert claims of error that are supported by the record and possess arguable legal merit. In order to faithfully discharge the duties imposed by the Appellate Defender Commission and the Supreme Court, counsel must have access to transcripts of all the proceedings so that all issues of legal merit can be raised. Although appellate counsel could contact trial counsel and inquire about voir dire, information obtained from trial counsel is not a substitute for a transcript because trial counsel’s memory may be faulty, trial counsel may not be aware that an error occurred during voir dire, id. at 280, n 3, or trial counsel may be the target of the defendant’s claim of error. We therefore conclude that a transcript of voir dire must be provided in all cases where appointed appellate counsel was not the indigent defendant’s trial counsel. Accordingly, in this case, we find that defendant is entitled to a transcript of the voir dire testimony, to determine if any justifiable claims of error occurred during the voir dire. [223 Mich App 259-260.]

This Court issued three orders in Bass. First, we stayed its precedential effect. 455 Mich 851 (1997). Then we granted leave to appeal and continued the stay. 456 Mich 851 (1997). Finally, we vacated the grant order and denied leave to appeal.7 457 Mich 866 (1998). In that order, we stated:

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People v. Neal
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Cite This Page — Counsel Stack

Bluebook (online)
586 N.W.2d 716, 459 Mich. 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-neal-mich-1998.