            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 26, 2019
               Plaintiff-Appellee,

v                                                                  No. 345090
                                                                   Wayne Circuit Court
JAMES FORREST CHAPMAN,                                             LC No. 17-009606-01-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and BOONSTRA and LETICA, JJ.

PER CURIAM.

        Defendant appeals as of right his conviction and sentence for resisting or obstructing a
police officer, MCL 750.81d(1). The trial court sentenced defendant to 6 months in jail and
assessed court costs. We affirm defendant’s conviction and sentence, but vacate the assessment
of a 20% fee for late payment of court costs against him and remand to the trial court for
correction of the judgment of sentence.

                                I. FACTUAL BACKGROUND

        On June 3, 2016, defendant argued with an acquaintance named Bennie Smith at a house
located in Van Buren Township. Smith pulled out a pocketknife and attempted to stab
defendant, cutting his finger. Defendant left on a bicycle. Thereafter, defendant called 911 and
reported the alleged assault. Defendant told the dispatchers that there was a warrant out for his
arrest, but one of the dispatchers assured him that no warrant existed. The dispatcher told
defendant that he should speak with the police when they arrived, but defendant stated “I’m
smarter than that[.] I’m on my way to Ypsilanti.” Smith had also called 911, telling dispatchers
that defendant had assaulted him.

        At approximately 9:30 p.m., Van Buren Township Police Officer David Champagne was
dispatched to the neighborhood where the altercation occurred. Officer Champagne spoke with
Smith about the incident, and Smith informed the officer that he had seen defendant on a street in
the neighborhood shortly before the officer arrived.




                                               -1-
       Officer Champagne left Smith to look for defendant and saw him standing near a forested
part of the neighborhood. Defendant was pushing his bicycle and saw Officer Champagne
walking toward him. Defendant dropped his bicycle and ran away from Officer Champagne
toward nearby Belleville Lake. Officer Champagne called out to defendant and told him to stop,
but defendant continued running.

        Officer Champagne chased after defendant, verbally commanded him to stop, and
threatened to taser him. Defendant ran down a flight of stairs leading to the lake, tripped, and
tumbled down the remaining stairs. Defendant got up and turned to look at Officer Champagne,
who once again directed him to stop. Defendant then turned around, put his hands above his
head in a diving motion, and dove into the lake. Officer Champagne reached the shore and
yelled at defendant to get out of the water. Defendant swam approximately 20 yards away from
the shore and, then, swam east across the lake. Officer Champagne followed defendant along the
shoreline. Officer Champagne saw defendant swimming toward a dock and stepped onto it.
After defendant saw Officer Champagne, he again swam away. Eventually, defendant grew
tired, swam back to shore, got out of the lake, and briefly collapsed.

       At that point, Officer Champagne directed defendant to come up the stairs, which he did.
Officer Champagne asked defendant why he had run away. Officer Champagne testified that
defendant told him, “They lied to me. I knew I had warrants.” After defendant finished
explaining his version of the alleged assault involving Smith, Officer Champagne arrested
defendant based on the outstanding warrant.

        Officer Champagne took defendant to the police station and completed the arrest process
in the booking room. Officer Champagne informed defendant that he was being charged with a
felony for resisting and obstructing a police officer. Defendant asked to make a telephone call
and called an attorney. Officer Champagne remained in the booking room while defendant
spoke to his attorney and overheard their conversation. Additionally, signs posted on the
booking room’s doors and walls informed those inside that their conversations and phone calls
were recorded. The recording of defendant’s phone call was played for the jury. Defendant told
his attorney that he had been charged with resisting and obstructing a police officer. Defendant
also said: “I tried to swim away from them.” His attorney responded: “Swim away from them?”
To which defendant explained: “Yeah, like, took a splash in the river.”

        At trial, the 58-year-old defendant had a different version of the events leading to his
arrest. Defendant, who was on probation, testified that he intended to speak with Officer
Champagne about the incident with Smith. Defendant did not willingly jump into the lake to
avoid being arrested; instead, he simply lost his balance and fell into the lake. Once in the lake,
defendant lost his glasses and, although he noticed a flashlight shining, he was unaware that an
officer was giving him directions. As to defendant’s alleged statements to Officer Champagne
after he got out of the lake, defendant stated he was unsure whether there was an outstanding
warrant for his arrest. And defendant further claimed that his recorded statement to his attorney
had been “doctored” because he had actually told his attorney that “they’re saying I tried to swim
away from them.” Defendant noted that the time stamps on the recordings were different.
Defendant explained that he did not want to state exactly what had happened “in front of a cop”
as this would allow the police to “change their story and shoot [him] down that way.” Defendant


                                                -2-
further claimed that he never saw the signs advising those inside the booking room that their
telephone conversations are recorded.

       After the close of testimony, the jury found defendant guilty. This appeal followed.

                             II. ATTORNEY-CLIENT PRIVILEGE

        Defendant argues that the trial court abused its discretion by allowing the prosecution to
admit the telephone recording of the conversation between defendant and his attorney after
defendant was arrested because it was protected under attorney-client privilege. Defendant also
asserts that this error must be imputed to the prosecution. We disagree.

                                   A. ISSUE PRESERVATION

        The trial transcripts do not reflect that defense counsel objected to the admission of this
recording on the basis of attorney-client privilege. On appeal, however, the parties filed a
stipulation agreeing that defense counsel objected during an off-the-record bench conference,
that the trial court overruled the objection, and that the parties unintentionally failed to place the
objection and the trial court’s ruling on the record. Because the parties properly expanded the
appellate record, we treat this issue as preserved.1 MCR 7.210(A)(4)2 (“The parties in any
appeal to the Court of Appeals may stipulate in writing regarding any matters relevant to the
lower court or tribunal or agency record if the stipulation is made a part of the record on appeal
and sent to the Court of Appeals.”); see also Nye v Gable Nelson & Murphy, 169 Mich App 411,
414; 425 NW2d 797 (1988) (indicating that the parties’ signed agreement regarding the record is
to be “filed in the trial court in lieu of the transcript of testimony”).

                                  B. STANDARD OF REVIEW

        This Court reviews decisions regarding whether to admit evidence for an abuse of
discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). An abuse of
discretion occurs when the trial court chooses an outcome that falls outside the range of
reasonable and principled outcomes. People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010).
“A preserved error in the admission of evidence does not warrant reversal unless, ‘after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.’ ” People v Burns, 494 Mich 104, 110; 832 NW2d 738



1
  Accordingly, we decline to address defendant’s alternative ineffective assistance of counsel
claim based on defense counsel’s failure to object on the record.
2
  Under this rule, the parties should have filed the stipulation with the trial court clerk so that it
would become part of the record transmitted to this Court under MCR 7.210(G). However, we
conclude that this procedural misstep is not fatal, especially in light of the other rules permitting
parties to stipulate. See MCR 7.210(B)(1)(e) (authorizing the parties to “agree on a statement of
facts without procuring the transcript”) and MCR 7.310(C) (permitting stipulations filed directly
with the Supreme Court “regarding any matter relevant to a part of the record on appeal”).


                                                 -3-
(2013), quoting People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (quotation and
citation omitted).

                                          C. ANALYSIS

       The Criminal Code of Procedure codifies the attorney-client privilege, providing:

       Any communications between attorneys and their clients . . . are hereby declared
       to be privileged and confidential when those communications were necessary to
       enable the attorneys . . . to serve as . . . [an] attorney[.] [MCL 767.5a(2).]

In general, “[c]ommunications from a client to an attorney are privileged when they are made to
counsel who is acting as a legal adviser and made for the purpose of obtaining legal advice.”
People v Compeau, 244 Mich App 595, 597; 625 NW2d 120 (2001). This Court has previously
explained that this statute does not entitle a defendant to a private conversation with his attorney.
City of Ann Arbor v McCleary, 228 Mich App 674, 681; 579 NW2d 460 (1998). Instead,
“assuming that [the] defendant’s telephone conversation with his attorney cannot be held in
private, MCL § 767.5a(2) . . . guarantees that the content of their conversation is protected by the
attorney-client privilege.” Id. at 681-682 (citation omitted). The McCleary panel reasoned that
“the Legislature, in providing these protections to ensure the sanctity of a client’s
communications with his attorney, obviously did not intend to also grant such communicators an
absolute right to demand privacy whenever and wherever they choose to communicate.” Id. at
682.

        This Court has also held that a defendant’s incriminating statement to his attorney during
a preliminary examination, which was overheard by a deputy six feet away, was not a
confidential communication protected by the privilege. Compeau, 244 Mich App at 597. This
Court explained that the “defendant chose to communicate with counsel by speaking to the
attorney in a manner that could be overheard by a third person rather than covering his mouth
and quietly whispering or by communicating in writing.” Id. Because the “defendant failed to
take reasonable precautions to keep his remark confidential,” his “communication was not
privileged.” Id. 597-598.

        Here, there is no dispute that defendant called his attorney from the booking room after
he was arrested to seek legal advice. Defendant, however, took no precautions to ensure that his
communication was confidential. Despite knowing of Officer Champagne’s presence, defendant
spoke in a manner that allowed his conversation to be overheard. Id. at 597. There is no
evidence that defendant asked the officer for privacy or that defendant acted in a manner
designed to ensure privacy. Id. Thus, as in Compeau, the contents of the recording were not
privileged and the trial court did not abuse its discretion.3




3
  Because we conclude the trial court did not abuse its discretion, we also reject defendant’s
request to impute the court’s “error” to the prosecution.


                                                -4-
                                         III. LATE FEE

        Defendant argues that the trial court erred by imposing a 20% late fee against him for
failure to timely pay court costs because it lacked statutory authority to do so. The prosecution
concedes error. We agree.

        Typically, “strictly legal challenges to the imposition of fees and costs” must be raised
when the trial court imposes the fee, and failure to do so results in the issue being unpreserved.
People v Jackson, 483 Mich 271, 292 n 18; 769 NW2d 630 (2009). Because defendant failed to
raise this issue in the trial court, we review for plain error. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id. at 763. After these three criteria
have been met, we will only reverse when the plain error “resulted in the conviction of an
actually innocent defendant or when an error seriously affected the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764
(quotation marks and alterations omitted).

      The assessment of late fees for the failure to pay court costs is governed by MCL
600.4803(1), which provides:

       A person who fails to pay a penalty, fee, or costs in full within 56 days after that
       amount is due and owing is subject to a late penalty equal to 20% of the amount
       owed. The court shall inform a person subject to a penalty, fee, or costs that the
       late penalty will be applied to any amount that continues to be unpaid 56 days
       after the amount is due and owing. Penalties, fees, and costs are due and owing at
       the time they are ordered unless the court directs otherwise. The court shall order
       a specific date on which the penalties, fees, and costs are due and owing. If the
       court authorizes delayed or installment payments of a penalty, fee, or costs, the
       court shall inform the person of the date on which, or time schedule under which,
       the penalty, fee, or costs, or portion of the penalty, fee, or costs, will be due and
       owing. A late penalty may be waived by the court upon the request of the person
       subject to the late penalty.

The parties agree and that defendant was assessed a 20% late fee. The record reflects that the
trial court assessed a late fee against defendant on May 18, 2018, which was 61 days after March
22, the date defendant was sentenced.

        Defendant is correct that the trial court did not include a due date for payment on his
judgment of sentence. The judgment of sentence contains a section in which the trial court is
required to set a due date for payment of court costs. This portion reads: “The due date for
payment is ___________. Fine [sic], costs, and fees not paid within 56 days of the due date are
subject to a 20% late penalty on the amount owed.” Thus, the 20% late fee imposed on
defendant was not authorized by statute because the trial court failed to initially assign defendant
a due date for payment of court costs. MCL 600.4803(1). We conclude that this error was plain
and affected defendant’s substantial rights. See Carines, 460 Mich at 763-764. Accordingly, we
vacate the 20% late fee assessed against defendant and remand to the trial court. On remand, the

                                                -5-
trial court must correct the judgment of sentence by specifying a due date for defendant’s court
costs.4

                                       IV. COURT COSTS

        Although not raised before the trial court, defendant argues that the $1,300 in court costs
assessed by the trial court are an unconstitutional tax under the Michigan Constitution because
the authorizing statute fails to refer to creating a “tax,” rendering it obscure, and because it
violates the separation of powers. Defendant raises the precise issues addressed in People v
Cameron, 319 Mich App 215, 236; 900 NW2d 658 (2017), wherein this Court, in affirming the
imposition of court costs against the defendant, held:

       MCL 769.1k(1)(b)(iii) is a revenue-generating measure, and the courts forcibly
       impose the assessment against unwilling individuals. Therefore, it is a tax rather
       than a governmental fee. Although the statute does not expressly state that it
       imposes a tax, the statute is neither obscure nor deceitful, and therefore, it does
       not run afoul of the Distinct Statement Clause of Michigan’s Constitution.
       Finally, because a trial court must establish a factual basis for its assessment of
       costs to ensure that the costs imposed are reasonably related to those incurred by
       the court in cases of the same nature, the legislative delegation to the trial court to
       impose and collect the tax contains sufficient guidance and parameters so that it
       does not run afoul of the separation-of-powers provision of Const 1963, art 3 § 2.


Defendant’s claim of error cannot succeed because this Court is bound by its earlier resolution of
these same issues in Cameron. MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow
the rule of law established by a prior published decision of the Court of Appeals issued on or
after November 1, 1990, that has not been reversed or modified by the Supreme Court[.]”).

                                        V. CONCLUSION

        We affirm defendant’s conviction and sentence, but vacate the assessment of the 20% late
fee and remand for correction of the judgment of sentence to reflect a due date for payment of
court costs. We do not retain jurisdiction.



                                                              /s/ Kathleen Jansen
                                                              /s/ Mark T. Boonstra
                                                              /s/ Anica Letica



4
  As we have found an error in the imposition of the late fee under the statute, we decline to
address defendant’s argument that the imposition of the late fee was in violation of his due
process rights. Upon remand, defendant may request a waiver of the late fee if he chooses.


                                                -6-
