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154494 - People v Gary Michael Traver

The People of the State of Michigan,
B. Eric Rustuccia
(Appeal from Ct of Appeals)
(Mackinac – Carmody, W.)
Gary Michael Traver,
Cecila Quirindongo Baunsoe


Defendant was charged with felonious assault and weapons offenses arising out of a dispute with his neighbor. At trial, rather than read aloud the jury instructions on the elements of those crimes, the trial judge gave the jurors a written copy of the elements. With regard to the crime of possession of a firearm during commission of a felony (felony-firearm), the written packet contained the elements of felony-firearm and set forth the definition of possession. At defense counsel’s request, the judge supplemented the written packet with verbal instructions on felony-firearm, which were still inaccurate. Nonetheless, defense counsel expressed satisfaction with the instructions. The Court of Appeals reversed in a split published opinion, holding that the trial judge’s failure to read all of the jury instructions aloud constituted plain error affecting defendant’s substantial rights. The majority also remanded for an evidentiary hearing on defendant’s claim of ineffective assistance of counsel due to counsel’s alleged failure to advise defendant properly about whether to withdraw his guilty plea and proceed to trial. The dissenting judge reasoned that defendant waived any instructional error and that defendant had failed to establish the factual predicate for his claim of ineffective assistance of counsel. The Supreme Court has directed oral argument on the prosecuting attorney’s application for leave to appeal to address: (1) whether the trial court erred by providing written instructions to the jury on the elements of the charged offenses but not reading those instructions aloud to the jury; (2) whether the trial court’s instructions on the charge of felony-firearm fairly presented the issues to be tried and adequately protected the defendant’s rights; (3) whether the defendant waived any instructional errors when his attorney expressed satisfaction with the instructions as given, see People v Kowalski, 489 Mich 488 (2011); (4) what standard of review this Court should employ in reviewing the Court of Appeals decision to order an evidentiary hearing on the ineffective assistance of counsel claim; and (5) whether the Court of Appeals erred under the applicable standard when it ordered an evidentiary hearing for defendant to establish the factual predicate for his claim that his trial counsel was ineffective for failing to properly advise him of the potential consequences of withdrawing his guilty plea.  See MCR 7.211(C)(1)(a)(ii) and People v Ginther, 390 Mich 436, 445 (1973).