                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      December 20, 2016
               Plaintiff-Appellee,

v                                                                     No. 328662
                                                                      Wayne Circuit Court
KURQE E. LOVE, also known as KURQE                                    LC No. 15-000307-FC
EUGENE LOVE,

               Defendant-Appellant.


Before: SAAD, P.J., and METER and MURRAY, JJ.

MURRAY, J., (concurring).

        I fully concur in the majority opinion to affirm defendant’s conviction. I write separately
to point out the glaring deficiencies within defendant’s brief on appeal.

        It is not an overly burdensome task to submit a brief to this Court that complies with our
court rules. Setting aside the ministerial task of putting together a table of contents, a statement
of issues presented, index of authorities and jurisdictional statement, see MCR 7.212(C)(2)-(5),
for a statement of facts a practitioner must simply set forth in an objective manner the material
facts relevant to the appeal, with citations to the record. MCR 7.212(C)(6). With respect to the
argument, the practitioner must set out the applicable standard of review, and then set forth the
controlling authority (whether caselaw, statute, court rule or rule of evidence) and the facts
supporting that argument, followed by a conclusion. MCR 7.212(C)(7)&(8). A brief following
these basic court rules will most always adequately present the issues for our Court to resolve.
The brief filed by defendant comes nowhere close to meeting even these basic requirements.

        To defense counsel’s credit, the statement of facts is in substantial compliance with the
court rule, as there are repeated citations to the record for the vast majority of factual statements.
But with respect to what occurred during preliminary hearings and what defense trial counsel
should have done during trial, defense counsel makes numerous argumentative and rhetorical
statements, which is not permitted. Id. Nevertheless, if the rest of the brief was similar to the
statement of facts, this concurring opinion would be unnecessary.

       However, the argument section contains many glaring deficiencies. First, the argument’s
appearance. Amongst the seven pages comprising the argument section there are at least three
pages that contain different appearances, i.e., type on one page is in bold while others are not,
while other pages have portions that appear to be literally cut and pasted onto a page and then
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recopied.1 Setting those aesthetics aside, a second deficiency is that for his second argument
defendant attempts to set forth the standard of review, but in doing so simply sets forth a
principal of law related to self-defense. As the prosecutor recognizes, that principal of law is not
a standard of review. Third, in addressing ineffective assistance of counsel, defense counsel
attempts to incorporate arguments into the principal brief that are contained in an attached
appendix. I am very much in favor of having appendices as part of briefs on appeal, but it is
quite another thing to try to incorporate into the argument section of a brief a legal argument
contained in an appendix. Although not impermissible, it is not a proper way to present an
argument to this Court. See Ile v Foremost Ins Co, 293 Mich App 309, 328-329; 809 NW2d 617
(2011), rev’d on other grds by 493 Mich 915 (2012). More curiously, when we occasionally
come across these incorporation attempts, it is because the principal brief is on the doorstep of 50
pages. But here, the brief is only 16 pages long, and the appendix containing the additional
arguments regarding ineffective assistance of counsel is only three pages, thus leaving one to
wonder why those arguments weren’t simply (and properly) placed into the brief.

        Finally, and if all of this were not enough, defense counsel’s final argument is that
defendant’s constitutional right to a jury trial was violated when a bench trial was conducted
without obtaining a waiver from defendant. In support of this argument, defendant sets forth an
accurate quotation from the trial court’s opinion that had rejected this argument. The trial court
quotation includes a quotation from the trial transcript where defendant affirmatively waived his
right to a jury trial (the record also contains a signed jury trial waiver form). One may
reasonably ponder how an attorney could argue that his client’s constitutional rights were
violated when his own brief contains quotations from the trial transcript where defendant
affirmatively waived that right. According to defense counsel, because the trial court did not
provide a citation to the transcript that it was citing from, and it did cite the transcript in other
portions of its opinion, there was no record evidence of a waiver. No argument could be more
frivolous. The trial court transcript contains defendant’s unequivocal waiver, the trial court
quoted from that transcript in denying defendant’s arguments on this ground, and despite all of
that, defendant still pushes that argument to this Court.

        There is no doubt that appointed counsel are often underpaid and often do not have the
resources that many firms, prosecutors or the state appellate defender’s offices have. It is also
obvious that defendants often demand that their attorneys make arguments that may not be
supported by the facts or the law. But that does not excuse the brief filed by defense counsel in
this case. It was not a lack of resources that produced this brief; it was a lack of effort. And
even if defendant wanted the jury trial waiver issue to be argued on appeal, defense counsel
should have informed him that it was a completely unsound and untenable argument to make,
and if defendant persisted, he could have filed a standard 4 brief on the issue.




1
  For more recent members of the bar, I am not describing a cut and paste done on computers,
which leaves to the eye no trace of having been done. This appears to have been done the old-
fashioned way.


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        In the end, of course, our Court has independently reviewed the arguments that were
raised and thoroughly examined the entire trial court record to ensure that no error was made as
alleged by defendant. The majority opinion more than adequately explains why no such error
occurred. That is why I join in affirming the trial court’s judgment.



                                                           /s/ Christopher M. Murray




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