Defendant Jeffrey Titus, convicted in 2002 by jury trial of the first-degree premeditated murders of Doug Estes and James Bennett, likes to spend time in litigation. We first wrote about him in Estes v Titus (July 2008) where the wife of Estes was trying to collect a wrongful death judgment from Titus who had transferred all his assets to his wife when they divorced. The Supreme Court ruled - with a caveat - that a property division in a divorce could be the subject of a Uniform Fraudulent Transfer Act action. Speaker Law Firm wrote the amicus brief for the Family Law Section (the Supreme Court disagreed with our position, but the concurring opinion by Marilyn Kelly did agree with us).

In People v Titus (Docket No. 329770), posted May 4, 2017, defendant Titus filed the latest of his appeals. The MCOA affirmed his convictions in 2004 in People v Titus, (Docket No. 243642). In 2014, defendant filed a motion for relief from judgment in the trial court. Defendant appealed when his motion for relief was denied. People v Titus, unpublished order of the Court of Appeals, entered March 24, 2016 (Docket No. 329770).

In this appeal, the defendant raised the issue of ineffective assistance of counsel. The court wrote that to prove ineffective assistance of counsel, the defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Effective assistance of counsel is presumed and the defendant bears a heavy burden of proving otherwise.

Since the defendant already filed a motion for relief from judgment which was denied, the court noted that it could not grant this motion if it alleged grounds for relief that could have been raised on direct appeal from the defendant’s conviction, unless the defendant demonstrates:

• “Good cause” for the failure to raise the grounds for relief on appeal, and

• “Actual prejudice” from the alleged irregularities.

Titus argued that he satisfied the good-cause requirement because appellate counsel was ineffective for failing to raise the issue of defense counsel’s ineffective assistance of counsel on direct appeal. The test, wrote the court, for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Thus, a defendant must show that appellate counsel’s decision not to raise an issue on appeal fell below an objective standard of reasonableness and prejudiced the appeal.

The defendant raised several issues about the trial as examples of the ineffectiveness of the trial counsel and, by extension, appellate counsel. The court carefully reviewed each claim finding:

“Because defendant has failed to establish that defense counsel’s performance was deficient, appellate counsel was not ineffective for failing to raise the claims of ineffective assistance on direct appeal. Defendant has failed to establish good cause, MCR 6.508(D)(3)(a), and defendant is not entitled to relief on his claims of ineffective assistance of counsel.”

Defendant also argued that the prosecution violated Brady v Maryland, 373 US 83, (1963) by failing to disclose that Det. Mattison had theorized that two shooters perpetrated the murders. To establish a Brady claim the defendant must show:

• The evidence was favorable to the defendant,

• The prosecution suppressed the evidence, and

• The evidence was material and its suppression prejudicial.

The court found no Brady violation noting that not every stray thought of the detectives of the case need to be revealed by the prosecution. The court decided that two-shooter theory was not required to be disclosed.

Defendant also argued that the trial court abused its discretion in concluding that the prosecution’s character evidence and [defendant’s] offhand remarks about the killings of his co-workers somehow outweighed the new evidence of innocence. Concluding that the defendant was trying to raise an argument regarding cumulative error, the court wrote that, since defendant failed to establish that he was denied the effective assistance of counsel or that there was a Brady violation, there are no irregularities that could be combined to determine a cumulative effect of errors.

Affirmed.