Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  January 10, 2020                                                             Bridget M. McCormack,
                                                                                              Chief Justice

  159871                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                Richard H. Bernstein
            Plaintiff-Appellee,                                                   Elizabeth T. Clement
                                                                                  Megan K. Cavanagh,
                                                                                                   Justices
  v                                                      SC: 159871
                                                         COA: 336775
                                                         Oakland CC: 2016-259413-FC
  NICHOLAS COLE SINNETT,
             Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the May 9, 2019
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

        CAVANAGH, J. (concurring).

         I concur in the Court’s order denying leave to appeal in this case but write
  separately to identify a serious trial court error, which would warrant reversal of
  defendant’s conviction were it not rendered harmless by the overwhelming evidence of
  defendant’s guilt.

          Defendant was tried before a jury for armed robbery, possession of a firearm
  during the commission of a felony, and unlawfully driving away a motor vehicle. After
  the prosecution rested, defense counsel informed the trial court that defendant had
  intended to testify but had been threatened in the jail by an individual who would likely
  be called as a rebuttal witness. According to defendant, a man named Derrick Johnson
  threatened him “don’t be a rat” because defendant planned to implicate an associate of
  Johnson’s. Defense counsel asked for time to confer with defendant about whether he
  still intended to testify. Following a brief off-the-record discussion, defense counsel
  made a record:

               [Defense Counsel]: Okay. And as we stand here today and you are
        here to make your final decision, do you wish to testify or do you wish to
        remain silent?

               The Defendant: It would be better for me to stay silent.

               [Defense Counsel]: Has anyone promised you or threatened you to
        get you to make this decision?

               The Defendant: Besides Derrick Johnson, no.
                                                                                           2

      After that, the trial court also questioned defendant about the alleged threat.
Defendant elected not to testify and was ultimately found guilty as charged. Defendant’s
convictions were affirmed on appeal; the Court of Appeals concluded that defendant
waived his right to testify and there was no plain error affecting his substantial rights.

        A defendant’s right to testify is grounded in the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution. People v Bonilla-Machado, 489 Mich
412, 419 (2011). The right to testify is “essential to due process of law in a fair adversary
process.” Rock v Arkansas, 483 US 44, 51 (1987) (quotation marks and citation omitted).
In fact, a defendant’s right to present his own version of events is fundamental, and
sometimes “the most important witness for the defense” is the defendant himself. Id. at
52. A defense attorney may counsel a defendant against testifying as a matter of sound
trial strategy; however, the ultimate decision to testify rests solely with the defendant.
Bonilla-Machado, 489 Mich at 419. In Michigan, the trial court is not required to
determine whether a defendant waives the right to testify, and if the defendant “decides
not to testify . . . the right will be deemed waived.” People v Simmons, 140 Mich App
681, 685 (1985) (quotation marks and citation omitted).

        In the Court of Appeals, defendant argued that that trial court failed to take
sufficient steps to protect his constitutional right to testify. I agree. The record shows
that defendant repeatedly informed the trial court that he believed he had been threatened
not to testify, but the trial court did nothing about it:

              The Court: All right. Mr. Sinnett, this is your decision as to whether
       you want to testify or not. You’ve talked to your attorney at length prior to
       this case starting, during this week, additionally this morning. Has anyone
       promised you or threatened you?

               The Defendant: I actually, ma’am, I had intended on taking the stand
       the whole time until this morning. I was—I had made my attorney aware
       that I had been threatened in the past. That my paperwork had been stolen
       and she knows of it and I only recently—

             The Court: What, what was the threat? What was the threat and
       where did it come from?

              The Defendant: The threat came from a black guy they call DJ that
       was in your holding tank . . . .

                                          * * *

              The Court: What, what was the threat?

              The Defendant: The threat was don’t be a rat. Don’t be a rat. I
                                                                                 3

know Duane and I was like—

                                   * * *

       The Court: It is up to you to decide whether you want to testify or
not. If you think it’s in your best interest to testify and say whatever it is
that you want to say in front of this jury then you do it. If, if you don’t
want to do it, you don’t do it. It is your decision ultimately.

       You’ve had plenty of time to speak with your attorney correct?

       The Defendant: Yes ma’am.

        The Court: Okay. And so you know you have an absolute [sic] not
to testify.

       The Defendant: I do.

       The Court: And that I’m going to instruct the jury that they are to not
take that into account whatsoever in their deliberations because you have a
right not to testify, you understand that?

       The Defendant: Yes ma’am.

       The Court: Okay. You also have a right to testify if you want to.
Okay. So when [defense counsel] is asking you whether anyone has
promised you anything or threatened you you’re indicating to me that
you’re deciding not to testify because of something you heard from another
person that’s in custody, correct?

       The Defendant: That the prosecution plans to call against me as a
rebuttal.

       The Court: It doesn’t matter—that doesn’t matter. You’re indicating
the reason why you’re not going to testify is because someone else that’s in
custody—

       The Defendant: Yes.

       The Court:—has accused or, or said to you don’t be a rat.

                                   * * *

       The Court: Okay. All that aside, I don’t know any of this and I don’t
know the truth to any of that. Okay. So all I’m hearing is that someone is
accusing you of potentially if you testify that you might be a rat, okay.
                                                                                         4

         Correct?

                The Defendant: Right.

                The Court: Okay. There have been no threats other than that, other
         than those statements, correct?

                The Defendant: I mean that’s the most serious one, yes.

The Court of Appeals suggested that this was sufficient to protect defendant’s
constitutional rights, outlining:

         Here, the trial court provided defendant the opportunity to consult with
         counsel before making a decision whether to testify. The court then placed
         defendant under oath and questioned him about the alleged threat.
         Defendant agreed on the record that he had sufficient time to talk with
         counsel and that he was aware that he had an absolute right to testify.
         Indeed, on appeal defendant does not dispute that it was his decision not to
         testify. [People v Sinnett, unpublished per curiam opinion of the Court of
         Appeals, issued May 9, 2019 (Docket No. 336775), p 6.]

        I fail to see how any of this procedure safeguarded defendant’s right to testify.
Consulting with his attorney and putting the threat on the record did nothing to resolve
the threat. The trial court did not hold an evidentiary hearing to ascertain if defendant’s
allegations were credible, nor did it assure defendant that it would take appropriate
curative action if he wished to exercise his constitutional rights. The court could have,
for example, ensured that defendant would not be placed in a holding cell with the man
who allegedly imperiled his safety. Although I recognize that in Michigan the trial court
is under no duty to confirm on the record that a waiver of the right to testify is made
intelligently and knowingly, Simmons, 140 Mich App at 684, I believe that when the trial
court is informed that the free exercise of a constitutional right is at stake, its duty to
protect that right is clearly implicated. 1

1
    I find instructive the following holding from the Court of Appeals of Alaska:
                A trial judge faced with a defendant who, in the course of this
         process, voices fears of reprisal as a consequence of testifying—even vague
         and insubstantial fears—must do everything realistically possible to delve
         into the issue and elicit an informed, voluntary choice. To this end, the
         judge should invite a full disclosure by the defendant and the defendant’s
         counsel of any purported threat, offer to invoke the full weight of the
         court’s protective powers against the source of any threat, and conduct a
         thorough inquiry in response to any information disclosed. [Knix v State,
         922 P2d 913, 919 (Alas App, 1996).]
                                                                                           5

        Next, I am troubled by the Court of Appeals’ conclusion that defendant waived his
constitutional right to testify.       A waiver is the “intentional relinquishment or
abandonment of a known right.” People v Carines, 460 Mich 750, 762 n 7 (1999)
(quotation marks and citation omitted). Furthermore, “[i]ntelligent waiver, of course, is
made to depend upon the considered choice of defendant . . . .” People v McKinley, 383
Mich 529, 536 (1970). A waiver of a constitutional right based on intimidation or
coercion is invalid as it is not a freely made choice. See People v Akins, 259 Mich App
545, 564 (2003). Taking defendant at his word—given that, as noted, the trial court
failed to meaningfully delve into the nature and circumstances of the threats or ascertain
whether the threats were credible—his decision not to testify does not appear to be one
made upon considered choice. In my view, the choice to stay silent or to exercise a right
and face potential physical harm 2 is no choice at all.

       I also disagree with the Court of Appeals’ conclusion that defendant failed to
preserve this issue since he “did not argue in the trial court that he was denied his
constitutional right to testify on his own behalf . . . .” Sinnett, unpub op at 5. The record
clearly shows that both defense counsel and the trial court put defendant’s “waiver” of his
constitutional right to testify on the record. In fact, the trial court’s questioning of
defendant on this topic spans seven pages of the transcript. “The purpose of the appellate
preservation requirements is to induce litigants to do what they can in the trial court to
prevent error and eliminate its prejudice, or to create a record of the error and its
prejudice.” People v Mayfield, 221 Mich App 656, 660 (1997). Other than using the
word “constitutional” when informing the trial court that he wished to testify but would
not because he had allegedly been threatened, I am unsure what else defendant could
have done to preserve this issue or why the Court of Appeals would require more.
Defendant raised this issue, a record was created, and the trial court had an opportunity to
alleviate the prejudice. Because this issue was preserved, the Court of Appeals erred by
reviewing the claim for plain error instead of for harmless error.

       All this aside, however, I join the Court’s denial order because even under the
appropriate harmless-error standard of review, see People v Anderson (After Remand),
446 Mich 392, 405-406 (1994), I cannot conclude that defendant is entitled to relief.
Defendant visited the victim’s home the day before the robbery and earlier on the same
day as the robbery. The victim was able to identify him as was an employee of the
victim’s husband. On the afternoon of the robbery, defendant visited the home acting
suspiciously; for example, he offered to buy the home for a price that exceeded its
appraised value, asked to come inside and look around, and asked the victim why she was



2
 At defendant’s posttrial Ginther hearing, he explained that in his opinion being labeled
“a rat” would be a “death sentence” in the county jail. See People v Ginther, 390 Mich
436 (1973).
                                                                                                                6

not wearing her wedding ring. While speaking with defendant, the victim noted that
defendant was wearing shoes that did not match the rest of his professional attire. During
the robbery, the victim observed that the suspect had a similar physical build to defendant
and that he was wearing the same shoes that defendant had worn when he visited her
home earlier that day. In addition, the victim’s stolen Jeep was discovered in a parking
lot about one-half mile from her home. Surveillance video footage from that parking lot
showed that just prior to the robbery a black Ford F-150 backed into that parking lot and
a man exited the truck. Approximately 15 minutes later, the victim’s Jeep was shown
pulling up next to the F-150. The driver exited the Jeep and got into the F-150 and drove
away. Defendant later admitted to police that he drove a black Ford F-150. Furthermore,
defendant’s phone number and that of his girlfriend, whose phone had an area code from
Arizona, were linked to phone calls associated with the crime. Finally, defendant
provided police with information about a man named Duane Butler. When a search was
conducted at Butler’s residence, the victim’s credit cards were found. Overall, the
prosecution presented substantial and overwhelming evidence that defendant was the
perpetrator of the charged crimes, and I cannot conceive what defendant could have
testified to that would have altered the verdict. 3




3
 In addition, it is clear from a review of the Ginther hearing transcript that the trial court
did not find defendant credible, and this strengthens my conclusion that any testimony
provided to the jury would not have been likely to help defendant’s cause.



                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          January 10, 2020
       a0107
                                                                              Clerk
