                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 13, 2014
               Plaintiff-Appellee,

v                                                                   No. 317260
                                                                    Huron Circuit Court
ROBERT HAROLD BLACKSTOCK,                                           LC No. 13-305635-FH

               Defendant-Appellant.


Before: WHITBECK, P.J., and FITZGERALD and MURRAY, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions of resisting and obstructing a police
officer, MCL 750.81d(1), and domestic assault, MCL 750.81(2). The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12, to concurrent terms of 3 to 15 years in
prison for resisting and obstructing a police officer and 93 days for domestic assault. We affirm.

        On two occasions during pretrial proceedings defendant waived his right to counsel. The
trial court allowed defendant to represent himself with counsel on standby. Prior to trial
defendant changed his mind and indicated that he wished to have counsel represent him.

        At trial Phyllis Tinsey testified that defendant is her son and that on the morning of
December 20, 2012, defendant came to her home and asked for money. Tinsey stated that she
gave defendant money and he left her residence; however, he returned and said that he was there
to hide from his parole officer. Tinsey testified that she and defendant engaged in a physical
confrontation during which he grabbed her and pushed her against the wall. Tinsey stated that
when defendant realized she had called 911, he swung her purse at her and struck her. Tinsey
stated that defendant was intoxicated when the incident occurred.

        Officer Powell of the Huron County Sherriff’s Office testified that initially defendant was
calm during the booking process, but that defendant then stood up and stated that he wanted to
fight. Powell told defendant to sit down, but defendant approached him in an aggressive manner,
with fists closed. Powell then pushed defendant against the wall and then took him to the
ground, where he and another officer handcuffed defendant. The incident was recorded and the
video was played for the jury. The jury found defendant guilty of resisting and obstructing a
police officer and domestic assault.



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        Initially, defendant argues that the trial court committed plain error by failing to give a
special unanimity instruction. Defendant argues that in the alternative, defense counsel was
ineffective for failing to object to the trial court’s failure to give the special unanimity
instruction.

       An unpreserved issue is reviewed for plain error. People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999).1 Because defendant failed to move for a new trial or an evidentiary
hearing in the trial court, review is limited to mistakes apparent on the record. People v Sabin
(On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).

       To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Counsel must have made errors so serious that he was not performing as the “counsel”
guaranteed by the federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20;
People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). Counsel’s deficient performance
must have resulted in prejudice. To demonstrate the existence of prejudice, a defendant must
show a reasonable probability that but for counsel’s error, the result of the proceedings would
have been different, id. at 600, and that the result that did occur was fundamentally unfair or
unreliable, People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). Counsel is
presumed to have afforded effective assistance, and the defendant bears the burden of proving
otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).

       A criminal defendant is entitled to a unanimous verdict. Const 1963, art 1, § 14; see also
MCR 6.410(B). In order to protect a defendant’s right to a unanimous verdict, a trial court must
properly instruct the jury regarding the unanimity requirement. People v Cooks, 446 Mich 503,
511; 521 NW2d 275 (1994). In most cases, a general unanimity instruction will be adequate. Id.
at 524. However, a special unanimity instruction is required when the prosecution presents
evidence of alternative acts allegedly committed by the defendant and “1) the alternative acts are
materially distinct (where the acts themselves are conceptually distinct or where either party has
offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to
believe the jurors might be confused or disagree about the factual basis of defendant’s guilt.” Id.

        In this case, the prosecution presented evidence that defendant resisted and obstructed
Powell by standing up to challenge Powell, refusing a command to sit down, and then
approaching Powell in an aggressive manner with closed fists. The incident was presented as a
single event. Neither Cooks prong is present in this case. Defendant’s acts were not materially
distinct. The acts took place in the same room and flowed together quickly. There was little
room for the jurors to be confused or to disagree about the factual basis of defendant’s guilt.
Powell’s testimony precisely laid out the events as a single incident. Furthermore, the jury was
able to watch a video of the incident, thereby eliminating any confusion over the factual basis for
the offense. Based on this evidence defendant cannot show plain error. And, as a result, defense


1
 Defense counsel stated that he had no objections to the jury instructions, but did not express
approval of them. It could be argued that defense counsel’s statement constituted a waiver.
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).


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counsel did not render ineffective assistance by failing to object to the instructions or to request a
special unanimity instruction. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010).

        Next, defendant argues that counsel rendered ineffective assistance by essentially
conceding defendant’s guilt without his waiver or consent. Defendant failed to preserve the
issue of ineffective assistance of counsel by moving for a new trial or an evidentiary hearing in
the trial court. Sabin, 242 Mich App at 658-659. Therefore, our review is limited to mistakes
apparent on the record. Id.

        Counsel did not render ineffective assistance during closing argument. Counsel did not
have any basis on which to challenge the merits of the prosecution’s case. It is clear that
counsel’s assertions and references to defendant’s intoxication and mental illness were an
attempt to elicit sympathy and mercy from the jury. The claims by counsel as to defendant’s
intoxication and mental condition were not legal defenses. MCL 768.37(1); MCL 768.21a(1)
and (2). Counsel’s assertion of defendant’s mental condition and intoxication as part of a
strategy of jury nullification was not unreasonable; counsel made the best argument he could
under the circumstances. People v Demers, 195 Mich App 205, 206; 489 NW2d 173 (1992).
Moreover, counsel never completely conceded defendant’s guilt, and only a complete concession
of defendant’s guilt constitutes ineffective assistance. People v Krysztopaniec, 170 Mich App
588, 596; 429 NW2d 828 (1988). Defendant cannot show that counsel’s actions resulted in
prejudice. Carbin, 463 Mich at 600.

        Finally, defendant argues that his Sixth Amendment right to counsel was violated at
sentencing when he was required to proceed without the assistance of counsel absent a knowing,
intelligent, unequivocal and voluntary waiver. Defendant failed to object to this issue below;
however, an unpreserved claim of constitutional error will be heard for the first time on appeal
when the alleged error could have been decisive of the outcome. People v Grant, 445 Mich 535,
547; 520 NW2d 123 (1994).

        “When assessing the validity of a defendant’s waiver of the right to counsel, we review
de novo the entire record to determine whether the trial court’s factual findings regarding the
waiver were clearly erroneous.” People v Willing, 267 Mich App 208, 218; 704 NW2d 472
(2005). We also review de novo the trial court’s application of a constitutional standard to the
facts. Id. at 219. A defendant’s ineffective waiver of his right to counsel is a structural error if
the defendant is totally deprived of counsel at a critical stage. Id. at 224.

        The right to self-representation is both constitutional and statutory. Const 1963, art 1, §
13; MCL 763.1. Before the trial court can grant a defendant’s request for self-representation it
must determine that: (1) the waiver request is unequivocal, (2) the waiver request is knowingly,
intelligently, and voluntarily made, and (3) the court must be satisfied that defendant will not
disrupt, unduly inconvenience, or burden the court. People v Anderson, 398 Mich 361, 367-368;
247 NW2d 857 (1976). To inform defendant of the risks a trial court must notify defendant of
the charge, the maximum possible prison sentence, any mandatory minimum sentence, and the
risks of self-representation. People v Williams, 470 Mich 634, 642-643; 683 NW2d 597 (2004).
A trial court’s substantial compliance with the substantive requirements is sufficient. People v
Russell, 471 Mich 182, 191; 684 NW2d 745 (2004).

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       Once a defendant has waived his right to counsel a trial court is obligated to reaffirm the
waiver at subsequent proceedings as proscribed under MCR 6.005 (E). People v Lane, 453 Mich
132, 137-138; 551 NW2d 382 (1996).

        The trial court referred to the letters defendant had written to the court and told defendant
that he was entitled to the assistance of an attorney and that an attorney would be appointed if
defendant could not afford to retain counsel. Defendant stated that he did not want counsel and
wanted to represent himself. The trial court directed defendant’s appointed counsel to remain in
the courtroom on a standby basis. The trial court’s advice complied with MCR 6.005(E). The
trial court’s ruling indicates that the trial court found it less disruptive to allow defendant to
represent himself than to refuse his request. Defendant’s waiver of his right to counsel was
unequivocal, voluntary, knowing, and intelligent.

       Affirmed.



                                                              /s/ William C. Whitbeck
                                                              /s/ E. Thomas Fitzgerald
                                                              /s/ Christopher M. Murray




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