People of Michigan v. Eartha Louise Harris ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 21, 2018
Plaintiff-Appellee,
v No. 335831
Wayne Circuit Court
EARTHA LOUISE HARRIS, LC No. 15-003839-01-FC
Defendant-Appellant.
Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant appeals as of right her jury convictions of assault with intent to do great bodily
harm (AWIGBH), MCL 750.84, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b.1 Defendant was sentenced to 3 to 10 years’ imprisonment for
the AWIGBH conviction and a consecutive two-year term of imprisonment for the felony-
firearm conviction. We affirm.
Defendant’s convictions arise from the April 18, 2015 shooting assault of Kendric Jordan
in Detroit, Michigan. That evening, while Jordan was standing on a sidewalk talking to his
cousin and his cousin’s friend, he saw a four-door burgundy Malibu drive by them. The vehicle
was driving in a suspicious manner, which caught Jordan’s attention. Jordan identified
defendant as the driver of the vehicle. There were two male passengers inside the vehicle. The
vehicle turned around, again slowly drove past Jordan, and then parked along the curb. Jordan
was able to see an assault rifle in the backseat as the vehicle drove by. Feeling threatened,
Jordan walked to his own car that was parked in the street. Jordan saw the two men exit the
Malibu. One man was armed with the assault rifle and the other was armed with a Glock
handgun, which they pointed toward Jordan’s cousin and his cousin’s friend. The man with the
assault rifle then approached Jordan’s vehicle, pointed the rifle at Jordan, and told him to get out
of his car. Jordan refused to comply, put his vehicle in reverse, and drove away. Thereafter,
approximately 10 shots were fired, two of which struck Jordan. Jordan’s injuries required
surgery, and he spent approximately two weeks in the hospital.
1
The jury acquitted defendant of an additional charge of carjacking, MCL 750.529a, and an
additional alternative charge of assault with intent to commit murder, MCL 750.83.
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The next day, the police discovered an abandoned vehicle that matched the description of
the vehicle involved in the shooting. The owner of that car had permitted defendant to use it.
Thereafter, Jordan viewed a photographic array and identified defendant as the driver of the
vehicle at the time of the shooting. The two male suspects were never apprehended or identified.
The prosecution’s theory at trial was that defendant was guilty under an aiding or abetting
theory. The defense argued that defendant did not have any knowledge that the other two men
were armed or intended to assault Jordan, and she did not do anything to assist them in
committing the charged crimes.
I. DEFENDANT’S BRIEF ON APPEAL
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues in her brief on appeal that trial counsel was ineffective for eliciting
testimony from the officer in charge that the two men involved in the shooting were never
apprehended or identified. We disagree.
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich. App. 174, 187; 891 NW2d
255 (2016). Generally, a trial court's findings of fact, if any, are reviewed for clear error, and
questions of law are reviewed de novo. Id. at 188. “Clear error exists if the reviewing court is
left with a definite and firm conviction that the trial court made a mistake.” People v Armstrong,
490 Mich. 281, 289; 806 NW2d 676 (2011). However, because defendant failed to raise this
issue in an appropriate motion in the trial court, and this Court denied defendant’s motion to
remand for a hearing pursuant to People v Ginther, 390 Mich. 436, 443-444; 212 NW2d 922
(1973), our review is limited to errors apparent from the record. 2 People v Jordan, 275 Mich
App 659, 667; 739 NW2d 706 (2007).
Effective assistance of counsel is presumed, and criminal defendants have a heavy burden
of proving otherwise. People v Schrauben, 314 Mich. App. 181, 190; 886 NW2d 173 (2016).
When claiming ineffective assistance of counsel, it is a defendant's burden to prove “(1)
counsel's performance was deficient, meaning that it fell below an objective standard of
reasonableness, and (2) but for counsel's error, there is a reasonable probability that the outcome
of the defendant's trial would have been different.” Solloway, 316 Mich. App. at 188,
citing Strickland v Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). A
defendant must show that “but for counsel's deficient performance, a different result would have
been reasonably probable.” Armstrong, 490 Mich. at 290, citing Strickland, 466 U.S. at 694–696.
“[D]efendant has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel[.]” People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
2
People v Harris, unpublished order of the Court of Appeals, entered June 14, 2017 (Docket No.
335831).
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In this case, during defense counsel’s cross-examination of the officer in charge, counsel
elicited that the two male participants in the offense were never apprehended or identified.
Although Jordan was shown a photographic array that included a possible suspect, he did not
identify anyone. Defendant was the only person charged in the matter. In closing argument,
counsel argued that there was no evidence that defendant knowingly participated in the offense,
and that the only reason she was charged was that the actual participants were never apprehended
and the police needed a “scapegoat.” Defendant now complains that defense counsel erred by
eliciting from the officer in charge that the other male suspects were never apprehended. He
contends that this testimony allowed the jury to infer that defendant refused to identify the other
men involved, causing the jury to convict her for that reason. We reject this claim of error.
The decision whether to question or cross-examine a witness is presumed to be a matter
of trial strategy. People v Dunigan, 299 Mich. App. 579, 589-590; 831 NW2d 243 (2013). The
prosecution had presented evidence connecting defendant to the shooter’s vehicle, and Jordan
had identified defendant as the person who was driving that vehicle at the time of the shooting.
The prosecution argued that defendant was guilty under and aiding or abetting theory. The
defense strategy was to emphasize the lack of direct evidence that defendant knowingly aided in
the commission of the offense. Defense counsel elicited from Jordan his agreement that
defendant did not get out of the car during the offense, that she never said anything to him or
threatened him, and that she did not possess a gun. Counsel pursued the challenged line of
questioning to support an argument that defendant was charged because the two male
participants were never apprehended or identified, and the police and prosecution were therefore
blaming defendant because they needed a scapegoat. Defendant argues that this was unsound
strategy because it allowed the jury to speculate that she never told the police the names of the
other suspects. However, counsel did not elicit that the police actually spoke to defendant or
requested that she provide the names of the occupants of her vehicle and she refused to do so,
nor was such testimony presented. Counsel merely elicited that the two male suspects had never
been identified or apprehended, which he then used to support the “scapegoat” argument.
Defendant has not overcome the presumption that counsel’s questioning of the witness was part
of a sound trial strategy. The fact that a trial strategy fails does not mean that its use constitutes
ineffective assistance of counsel. People v Petri, 279 Mich. App. 407, 412; 760 NW2d 882
(2008).
B. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE
Defendant next argues that the evidence was insufficient to support her convictions, or
alternatively, that she is entitled to a new trial because the jury’s verdicts are against the great
weight of the evidence. Again, we disagree as to both arguments.
1. SUFFICIENCY OF THE EVIDENCE
A challenge to the sufficiency of the evidence in a jury trial setting is reviewed by this
Court de novo. People v Harverson, 291 Mich. App. 171, 175; 804 NW2d 757 (2010). The role
of this Court is to review the evidence in a light most favorable to the prosecution to determine
whether the trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. Id. “This Court will not interfere with the trier of fact’s role of
determining the weight of the evidence or the credibility of witnesses.” People v Williams, 268
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Mich App 416, 419; 707 NW2d 624 (2005). Any conflicts in the evidence must be resolved in
favor of the prosecution. People v Jackson, 292 Mich. App. 583, 587-588; 808 NW2d 541
(2011).
To prove the crime of AWIGBH, the prosecution was required to prove “(1) an attempt
or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to
do great bodily harm less than murder.” People v Stevens, 306 Mich. App. 620, 628; 858 NW2d
98 (2014) (quotation marks and citation omitted). The elements of felony-firearm are that the
defendant possessed a firearm during the commission of, or the attempt to commit, a felony.
People v Avant, 235 Mich. App. 499, 505; 597 NW2d 864 (1999).
In this case, the prosecution argued that defendant, as the driver of the car, was guilty of
these offenses under an aiding or abetting theory. “The general rule is that, to convict a
defendant of aiding and abetting a crime, a prosecutor must establish that ‘(1) the crime charged
was committed by the defendant or some other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its commission at the time
that [the defendant] gave aid and encouragement.” People v Moore, 470 Mich. 56, 67-68; 679
NW2d 41 (2004), quoting People v Carines, 460 Mich. 750, 768; 597 NW2d 130 (1999). “A
defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or
has knowledge of, as well as those crimes that are the natural and probable consequences of the
offense he intends to aid or abet.” People v Robinson, 475 Mich. 1, 15; 715 NW2d 44 (2006).
“All that is required to prove aiding and abetting felony-firearm is that the defendant aided and
abetted another in carrying or having in his possession a firearm while that other commits or
attempts to commit a felony.” Moore, 470 Mich. at 68.
Initially, there is no merit to defendant’s argument that evidence of her identity as a
participant in this matter was lacking. Identity is an element of every offense. People v Yost,
278 Mich. App. 341, 356; 749 NW2d 753 (2008). Positive identification by a single witness can
be sufficient to support a conviction. People v Davis, 241 Mich. App. 697, 700; 617 NW2d 381
(2000). The credibility of identification testimony is a question for the trier of fact to resolve and
this Court will not resolve the issue anew. People v Dunigan, 299 Mich. App. 579, 582; 831
NW2d 243 (2013); Davis, 241 Mich. App. at 700. Defendant was linked to the vehicle involved
in the offense and Jordan positively identified defendant as the driver of that vehicle. This
evidence was sufficient to establish defendant’s identity as the driver of the suspect vehicle. The
credibility of Jordan’s identification testimony was for the jury to resolve and we will not disturb
that credibility determination.
Defendant further argues that the evidence was insufficient to convict her of aiding or
abetting the crimes because there was no evidence that she knew that the two male participants
were armed with guns or intended to commit a crime when she stopped the vehicle. We
disagree. According to Jordan, the assault rifle used in the offense was clearly visible to him
from his position on the sidewalk outside the car. He testified that he could see it in the backseat
of the car as it drove by. Based on this testimony, the jury could reasonably find that defendant
was also able to see the assault rifle and therefore was aware that it was accessible to the other
occupants in the vehicle.
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Further, Jordan’s testimony describing the manner in which defendant drove the vehicle
supported an inference that defendant knowingly assisted the male occupants in committing the
crimes. Jordan testified that the vehicle passed him, turned around, and then passed him again
by “creeping” at a slow rate, as if it was “scoping” out the area. This testimony supported an
inference that the occupants of the vehicle had targeted Jordan and that defendant assisted the
two male occupants by turning around, driving past Jordan a second time in a manner that
allowed the male occupants to scope out the area and prepare to commit an assault, and then
stopped the car so the two men could get out and commit the crimes. The vehicle’s
abandonment shortly after the shooting also supported an inference of defendant’s guilty
knowledge as a willing participant in the offense. In addition, the jury could find that defendant
was guilty of felony-firearm through her actions of driving the vehicle and assisting her
accomplices in carrying and possessing the firearm used to commit the offense.
It was not necessary for there to be evidence that defendant either exited the vehicle or
fired any of the firearms to find her guilty of AWIGBH or felony-firearm under an aiding or
abetting theory. The evidence that the men were armed with an assault rifle and a Glock
handgun allowed the jury to find that a natural and probable consequence of the intended armed
assault was that Jordan could be shot, with an intent to cause great bodily harm. The fact that the
jury acquitted defendant of carjacking does not support her argument that the evidence was
insufficient to support her convictions for the assault and felony-firearm charges. Whereas no
actual carjacking was accomplished, the facts supported the commission of the assault and
felony-firearm offenses.
In sum, the evidence was sufficient to support defendant’s convictions of AWIGBH and
felony-firearm.
2. GREAT WEIGHT OF THE EVIDENCE
We next address defendant’s challenge to the great weight of the evidence. A motion for
a new trial based on the great weight of the evidence is entrusted to the trial court’s sound
discretion. Therefore, a defendant must raise the issue in a motion for a new trial to preserve the
issue for appeal. People v Cameron, 291 Mich. App. 599, 617-618; 806 NW2d 371 (2011).
Because defendant did not raise this issue in a motion for a new trial and this Court denied her
motion to remand on this issue, the issue is unpreserved and is reviewed only for plain error
affecting defendant’s substantial rights. People v Musser, 259 Mich. App. 215, 218; 673 NW2d
800 (2003).
In People v Lacalamita, 286 Mich. App. 467, 469-470; 780 NW2d 311 (2009), this Court
stated:
The test to determine whether a verdict is against the great weight of the
evidence is whether the evidence preponderates so heavily against the verdict that
it would be a miscarriage of justice to allow the verdict to stand. People v
McCray, 245 Mich. App. 631, 637; 630 NW2d 633 (2001). Generally, a verdict
may be vacated only when the evidence does not reasonably support it and it was
more likely the result of causes outside the record, such as passion, prejudice,
sympathy, or some other extraneous influence. People v Plummer, 229 Mich App
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293, 306; 581 NW2d 753 (1998). “Conflicting testimony, even when impeached
to some extent, is an insufficient ground for granting a new trial.” People v
Lemmon, 456 Mich. 625, 647; 576 NW2d 129 (1998). Further, the resolution of
credibility questions is within the exclusive province of the jury. People v
DeLisle, 202 Mich. App. 658, 662; 509 NW2d 885 (1993).
As discussed earlier, the credibility of Jordan’s identification testimony was for the jury
to resolve. We will not disturb that credibility determination. Further, in light of the evidence
that the assault rifle was openly visible in the vehicle that defendant was driving, and the
evidence of the manner in which defendant operated and maneuvered the vehicle to allow the
occupants to target Jordan and “scope out” the area, and then to enable the two male occupants to
position themselves and exit the vehicle to commit the crimes, the evidence did not preponderate
so heavily against the jury’s verdicts that it would be a miscarriage of justice to allow the
verdicts to stand. Therefore, we reject this claim of error.
II. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises several additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. Although we address each of
defendant’s claims on the merits, we find none warrant appellate relief.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first raises claims of ineffective assistance of counsel, primarily relating to
defense counsel’s pretrial preparation and presentation of a defense. Because defendant did not
raise these claims in the trial court, our review is again limited to errors apparent from the record.
Jordan, 275 Mich. App. at 667. To the extent that defendant has submitted additional materials
outside the record with her Standard 4 brief, we consider those materials only for the purpose of
determining whether they support defendant’s alternative request that this Court remand this
matter for an evidentiary hearing on his claims.
Defendant argues that defense counsel was ineffective for not properly investigating the
case before trial, which in turn prevented counsel from fashioning a reasonable trial strategy.
Failure of counsel to conduct a reasonable investigation can constitute ineffective assistance of
counsel. People v McGhee, 268 Mich. App. 600, 626; 709 NW2d 595 (2005). A sound trial
strategy is one based on investigation and supported by reasonable professional judgments. It is
counsel’s duty to make an independent examination of the facts, laws, pleadings, and
circumstances involved in the matter and to pursue all leads relevant to the issues. People v
Grant, 470 Mich. 477, 486-487; 684 NW2d 686 (2004).
First, defendant argues that counsel was ineffective for not interviewing Jordan’s cousin,
Sergio Washington, and Washington’s friend. Defendant admits that the information provided
during discovery indicated that the police did not interview Washington or his friend. Defendant
also admits that she does not know what information these witnesses could have provided if they
had been interviewed. Therefore, even assuming that defense counsel could have located and
interviewed the men and failed to do so, which is not apparent from the record, defendant has not
established that she was prejudiced by counsel’s inaction. Without a showing that the witnesses
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could have provided information helpful to defendant, there is no basis for finding a reasonable
probability that the outcome of defendant’s trial would have been different if the witnesses had
been interviewed. Defendant relies on a statement from Jordan’s mother in which she states that
she told the police that Washington had Jordan’s telephone and she believed that when the police
called Washington he told them “wrong number.” Even if true, this statement provides no basis
for believing that Washington could have provided information that might have affected the
outcome of defendant’s trial. Accordingly, this claim of ineffective assistance of counsel cannot
succeed, and defendant’s offer of proof does not demonstrate that remand for an evidentiary
hearing on this issue is warranted.
Defendant also argues that counsel was ineffective for not properly investigating
discrepancies in Jordan’s statements regarding the time of the shooting. Defendant relies on a
question asked by a police officer to place the time of the shooting at approximately 7:45 p.m.,
and on Jordan’s preliminary examination testimony that the incident occurred at about 7:30 p.m.
Jordan admitted that these were only estimates. Because Jordan was not sure of the precise time,
there is no reasonable probability that counsel’s failure to explore the time variances affected the
outcome.
Next, defendant relies on a statement from Jordan’s mother that she thought it was about
8:00 p.m. when Jordan contacted her about being shot. Defendant argues that counsel should
have introduced this statement to impeach Jordan’s testimony, but as the prosecution argues, the
mother’s account would be hearsay to the extent it was offered to prove the truth of the matter
asserted (i.e., the time when Jordan contacted his mother). MRE 801(c). Defendant also relies
on Jordan’s mother’s statement to the police to argue that counsel should have used that to
impeach Jordan’s testimony that he called his mother on his cell phone. According to his
mother’s statement, Washington had Jordan’s phone. Once again, however, Jordan’s mother’s
statement would be hearsay if offered to prove the truth of the matter asserted therein (i.e., that
Washington had Jordan’s phone). MRE 801(c). Accordingly, defendant cannot demonstrate that
counsel was ineffective for not attempting to impeach Jordan with his mother’s hearsay
statements.
Defendant also points out that Jordan made inconsistent statements about whether he
drove himself to the hospital or whether his mother took him to the hospital. This subject was
explored at trial and defense counsel questioned Jordan on how he actually arrived at the
hospital. Therefore, the record does not support defendant’s claim that counsel was ineffective
in this respect.
Defendant next argues that defense counsel should have used Jordan’s inability to
identify the shooter to challenge Jordan’s identification of defendant as the driver. Although the
identity of the shooter was never determined, the record does not support defendant’s argument
that Jordan lacked the ability to identify the shooter. Defendant relies on Jordan’s statement to
the police in support of her argument. According to Jordan’s statement, however, he provided a
detailed description of the shooter and told the police that he thought he would be able to identify
the shooter. Jordan also provided a physical description of the second man, but was not sure if
he could identify the second man because that person was wearing a hooded jacket. The officer
in charge testified that a person who was with defendant at the time of her arrest was
apprehended and taken into custody, and a photographic array was conducted, but the man was
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not identified as a participant in the offense. This information was presented to the jury. The
jury could have reasonably determined that Jordan had the ability to identify the shooter, but
never identified anyone because the shooter was never apprehended. Regardless, there is no
basis for finding that counsel should have done more to exploit the fact that the shooter was
never identified to challenge Jordan’s identification of defendant.
Defendant complains that defense counsel never elicited information about which side of
the car Jordan was standing on when he allegedly recognized the driver, which defendant
maintains could have caused the jury to question whether he had a good view of the driver.
However, Jordan testified that the car drew his attention both when it passed by originally and
after it turned around and passed him again. Therefore, he would have had views of the driver
from both sides of the vehicle. Accordingly, counsel’s failure to seek clarification on this point
was not significant.
Defendant states that Jordan described her as having weave in her hair at the time of the
shooting, but that security video footage of her at a hospital shortly after the shooting would have
shown that she did not have a weave. She argues that counsel was ineffective for not using this
evidence to impeach Jordan’s identification testimony. Defendant relies on “Attachment C” to
her Standard 4 brief in support of this argument, but the “Attachment C” to defendant’s brief is a
blank document. Accordingly, defendant has not factually supported this claim.
Defendant also argues that counsel should have impeached Jordan regarding the number
of shots fired because he told the police that six or more shots were fired, but testified at his
preliminary examination that 10 shots were fired. At trial, Jordan testified, consistent with his
preliminary examination testimony, that about 10 shots were fired. Because Jordan’s police
statement that six or more shots were fired is not inconsistent with his trial testimony that about
10 shots were fired, any attempt to impeach Jordan on this point would not have affected the
jury’s verdict. We also reject defendant’s claim that counsel should have done more to
investigate the shooting scene, presumably to look for spent casings that the police could not
locate. The jury was aware of the discrepancy between the number of shots described by Jordan
(approximately 10) and the number of shell casings recovered by the police (only 1). The officer
explained, however, that the police did not investigate the shooting scene until the day after the
offense, so it was possible that additional casings that may have been present were moved by
traffic in the interim. There is no basis for concluding that counsel was likely to find additional
casings had he inspected the scene. Moreover, even if counsel had investigated the scene and
recovered more casings, there is no reasonable probability that this would have changed the
result of trial because no weapon was recovered for comparison purposes. Moreover, the
recovery of additional casings would have only bolstered Jordan’s testimony that multiple shots
were fired.
Defendant also argues that defense counsel was ineffective for failing to present a
defense. A defendant is entitled to have her counsel prepare, investigate, and present all
substantial defenses. Where there is a claim that counsel was ineffective for failing to raise a
defense, the defendant must show that she made a good-faith effort to avail himself of the right
to present a particular defense and that the defense of which she was deprived was substantial. A
substantial defense is one that might have made a difference in the trial’s outcome. People v
Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009).
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Although defendant criticizes counsel for not presenting evidence in defense, she does
not explain what additional theory or evidence counsel should have presented in support of a
substantial defense. Accordingly, defendant has not met her burden of demonstrating that
counsel was ineffective in this regard. Moreover, because defendant has not made an offer of
proof in support of a substantial defense, she has not demonstrated that remand for an evidentiary
hearing on this claim is necessary. People v Simmons, 140 Mich. App. 681, 685; 364 NW2d 783
(1985).
In sum, defendant has not shown that trial counsel was ineffective, and her offers of proof
provide no basis for remanding this case for an evidentiary hearing on her claims of ineffective
assistance of counsel.
B. JUDICIAL IMPARTIALITY
Second, in her Standard 4 brief on appeal, defendant argues that she was denied a fair
trial by the trial court’s questioning of witnesses, which pierced the veil of judicial impartiality.
Because defendant did not object to the trial court’s conduct at trial, this issue is unpreserved.
Jackson, 292 Mich. App. at 597. Therefore, we review this issue for plain error affecting
defendant’s substantial rights. Id.
A criminal defendant is entitled to a “neutral and detached magistrate.” Id. at 597-598.
Therefore, at a jury trial, a judge must avoid conduct that pierces the veil of judicial impartiality.
In People v Stevens, 498 Mich. 162, 171; 869 NW2d 233 (2015), our Supreme Court held:
A judge’s conduct pierces [the veil of judicial impartiality] and violates the
constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party. [Footnote omitted.]
This is a “fact-specific analysis[,]” and the pivotal inquiry is whether “the judge’s conduct was
sufficiently severe and clear so as to create the appearance of bias against the aggrieved party.”
Id. at 171 n 3. A reviewing court must consider the trial court’s conduct in light of “the totality
of the circumstances,” whereby,
the reviewing court should inquire into a variety of factors, including the nature of
the judicial conduct, the tone and demeanor of the trial judge, the scope of the
judicial conduct in the context of the length and complexity of the trial and issues
therein, the extent to which the judge’s conduct was directed at one side more
than the other, and the presence of any curative instructions. This list of factors is
not intended to be exhaustive. [Id. at 172 (citations omitted).]
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When evaluating a judge’s questioning of witnesses, reviewing courts must bear in mind
that such interrogation is allowed under MRE 614(b).3 Stevens, 498 Mich. at 173. The Court in
Stevens explained:
This Court has stated that the central object of judicial questioning should
be to clarify. Therefore, it is appropriate for a judge to question witnesses to
produce fuller and more exact testimony or elicit additional relevant information.
Judicial questioning, nevertheless, has boundaries. The Michigan Code of
Judicial Conduct states:
A judge may properly intervene in a trial of a case to
promote expedition, and prevent unnecessary waste of time, or to
clear up some obscurity, but the judge should bear in mind that
undue interference, impatience, or participation in the examination
of witnesses, or a severe attitude on the judge’s part toward
witnesses . . . may tend to prevent the proper presentation of the
cause, or the ascertainment of truth in respect thereto . . . . In
addressing counsel, litigants, or witnesses, the judge should avoid a
controversial manner or tone. A judge should avoid interruptions
of counsel in their arguments except to clarify their positions, and
should not be tempted to the unnecessary display of learning or a
premature judgment. [Code of Judicial Conduct, Canon 3(A)(8).]
It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or
unintentionally. It is essential that the judge “not permit his own views on
disputed issues of fact to become apparent to the jury.” [Stevens, 498 Mich. at
173-174 (citations omitted).]
Defendant argues that the trial judge pierced the veil of judicial impartiality by
questioning Jordan after the parties had conducted their examinations of the witness. The basis
for defendant’s claim of error is that the court commented to Jordan that he should face the jury
when he responded to the court’s questions. The court initially told Jordan that it intended to ask
him some questions and then remarked, “But look at the jury, okay, and answer these questions.”
Later, the court advised Jordan: “These additional questions have been asked of you by members
of the jury. Okay. So kindly look at them and I’ll ask you the question, all right?” There is
nothing about the court’s comments that show any advocacy or partiality by the court. As a
whole, the trial court’s questioning of Jordan did not favor one side or the other, and the
questions were intended to clarify Jordan’s account of the incident. Defendant asserts that some
of the court’s questions about Jordan’s injuries, including how long he stayed in the hospital and
his mood after the shooting may have been irrelevant. But we believe the questions were
3
MRE 614(b) provides that “[t]he court may interrogate witnesses, whether called by itself or by
a party.” MRE 614(c) allows a party to object to the trial court’s questioning of a witness, either
at the time of interrogation or at the next available opportunity when the jury is not present.
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probative of the requisite intent for the assault charges. Regardless, the questions do not
demonstrate that the court’s questioning on this subject pierced the veil of impartiality.
Defendant asserts that the trial court falsely attributed some of the questions it asked to
jurors. She maintains that the questions were actually the court’s own questions. Defendant
offers no support for this claim, and accordingly, has not shown a plain error.
Defendant also challenges the trial court’s questioning of the officer in charge, Levan
Adams, but does not explain how the court’s questions were improper. She claims only that the
court falsely stated that its questions were submitted by jurors, but again, nothing in the record
supports this claim.
Defendant argues that the court’s questions to Adams about missing spent shell casings
may have been adversarial. Viewed in context, the court appears to have simply sought
clarification of whether there could be an explanation for the discrepancy between Jordan’s
account of hearing approximately 10 gunshots and the discovery of only one shell casing. When
the court inquired whether traffic could have moved the shell casings around, defense counsel
objected to the question on the basis of speculation, after which the court further clarified that the
recovered shell casing was found on the street, near the curb. This inquiry, particularly when
considered in the context of the court’s other questions, did not create an appearance of advocacy
or partiality against defendant. Therefore, the trial court’s questioning of Adams did not amount
to plain error.
Because we have concluded that the trial court’s questioning of witnesses did not pierce
the veil of judicial impartiality, we also reject defendant’s related claim that defense counsel was
ineffective for failing to object to the court’s questions. Any objection on this basis would have
been futile, and counsel is not ineffective for failing to make a futile objection. People v Darden,
230 Mich. App. 597, 605; 585 NW2d 27 (1998).
C. SENTENCING GUIDELINES
Third, defendant challenges the trial court’s scoring of several sentencing guidelines
offense variables (OVs). She challenges the court’s scoring decisions on both factual and legal
grounds, and further argues that the court’s reliance on judge-found facts to score several of the
OVs violated her Sixth Amendment right to a jury trial. We note that defendant preserved her
challenges to the scoring of OV 3 and OV 4 with appropriate objections at sentencing, but did
not preserve her appellate challenges to the scoring of OV 1 and OV 2. Further, defendant did
not argue at sentencing that the trial court’s scoring of the guidelines violated her Sixth
Amendment rights, leaving that issue unpreserved as well.
When reviewing a challenge to the scoring of the sentencing guidelines, this Court
reviews the trial court’s factual determinations, which must be supported by a preponderance of
the evidence, for clear error. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013).
“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute,
i.e., the application of the facts to the law, is a question of statutory interpretation, which an
appellate court reviews de novo.” Id. Unpreserved sentencing issues are reviewed for plain
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error affecting defendant’s substantial rights. People v Lockridge, 498 Mich. 358, 392; 870
NW2d 502 (2015).
Initially, we reject defendant’s argument that the trial court’s scoring of certain OVs on
the basis of judge-found facts violated her Sixth Amendment right to a jury trial. In Lockridge,
498 Mich. at 364, our Supreme Court held that Michigan’s sentencing guidelines are
constitutionally deficient, in violation of the Sixth Amendment, to the extent that they “require
judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense
variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range . .
. .” To remedy this deficiency, the Court held that the guidelines are advisory only. Id. at 365.
Under Lockridge, however, trial courts are still permitted to score the OVs using judge-found
facts. Id. at 392 n 28. As this Court explained in People v Biddles, 316 Mich. App. 148, 158; 896
NW2d 461 (2016),
[t]he constitutional evil addressed by the Lockridge Court was not judicial fact-
finding in and of itself, it was judicial fact-finding in conjunction with required
application of those found facts for purposes of increasing a mandatory minimum
sentence range, which constitutional violation was remedied in Lockridge by
making the guidelines advisory, not by eliminating judicial fact-finding.
Our Supreme Court issued its decision in Lockridge on July 29, 2015. Defendant was sentenced
on August 12, 2015. Because the guidelines were advisory at the time defendant was sentenced,
the trial court’s reliance on judge-found facts to score the guidelines did not violate defendant’s
Sixth Amendment rights.
Turning to defendant’s challenges to specific scoring decisions, defendant first argues
that the trial court erred by assessing 25 points for OV 1. MCL 777.31(1)(a) directs a court to
assess 25 points for OV 1 if “[a] firearm was discharged at or toward a human being.” We agree
with defendant that there was no evidence that she personally discharged a firearm at another
person. However, the evidence showed that defendant’s accomplice discharged a firearm at
Jordan during an assault, and defendant was convicted of aiding or abetting that assault. The
directions for OV 1 provide that “[i]n multiple offender cases, if 1 offender is assessed points for
the presence or use of a weapon, all offenders shall be assessed the same number of points.”
MCL 777.31(2)(b). We disagree with defendant’s argument that even though this was a multiple
offender case, the court was prohibited from assessing points against her on the basis of her
accomplice’s conduct because the accomplice was never identified, charged, or convicted.
Defendant’s reliance on People v Johnston, 478 Mich. 903-904; 732 NW2d 531 (2007), in
support of this argument is misplaced. That case stands for the proposition that OVs 1 through 3
should be scored the same when multiple offenders are all convicted of the same offenses. The
case does not hold that points may not be scored for a single defendant where his or her
accomplices were never charged and convicted. In this case, the jury found that defendant aided
or abetted the commission of an assault with intent to do great bodily harm, which included the
use of a firearm, and the evidence that Jordan was shot established that the offender discharged a
firearm at another person. Therefore, the trial court did not err in assessing 25 points for OV 1.
Defendant raises a similar challenge to the trial court’s assessment of five points for OV
2, which is the appropriate score where “[t]he offender possessed or used a pistol, rifle, shotgun,
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or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d). Like OV 1, MCL 777.32(2)
states that “[i]n multiple offender cases, if 1 offender is assessed points for possessing a weapon,
all offenders shall be assessed the same number of points.” For the same reasons discussed with
respect to OV 1, the trial court did not err in scoring OV 2 on the basis of a co-offender’s
possession or use of a firearm in this multiple offender case, even though no other person was
charged or convicted in the case.4
Next, the trial court assessed 25 points for OV 3 because a “[l]ife threatening or
permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). Only 10 points are to
be scored if “[b]odily injury requiring medical treatment occurred to a victim.” MCL
777.33(1)(d). As with OV 1 and OV 2, MCL 777.33(2)(a) provides that, “[i]n multiple offender
cases, if 1 offender is assessed points for death or physical injury, all offenders shall be assessed
the same number of points.” Again, because this was a multiple offender case, the trial court
could properly assess points against defendant based on a co-offender’s conduct, even though
defendant’s accomplices were never identified, charged, or convicted in the matter. Therefore,
the question is whether a life-threatening or permanent incapacitating injury occurred to a victim.
The record discloses that Jordan was shot twice. One bullet punctured a lung and affected his
breathing, and the other bullet entered his stomach. He required surgery and an extensive
hospital stay to recover from his injuries. A preponderance of the evidence supports the trial
court’s finding that Jordan’s injuries were life threatening. Therefore, the trial court did not err
in assessing 25 points for OV 3.
Lastly, defendant argues that the trial court erred by assessing 10 points for OV 4, which
is the appropriate score where a “[s]erious psychological injury requiring professional treatment
occurred to a victim.” MCL 777.34(1)(a). Although defendant points out that it was undisputed
that Jordan had not received professional treatment for any psychological injury, “the fact that
treatment has not been sought is not conclusive.” MCL 777.34(2). The trial court heard from
both Jordan and his mother at sentencing. Jordan stated that, since the shooting, he cannot sleep
and wakes up many times during the night because of dreams about being shot again. He was
also experiencing other emotional issues that caused him to rage out at people. Jordan’s mother
similarly stated that Jordan could not sleep and sometimes woke up screaming, crying, and
asking, “Why?” She had spoken to him about seeking treatment with a psychologist or
psychiatrist. Jordan explained that he had not sought professional help because he did not like to
talk to others and preferred to handle matters on his own. Despite the fact that Jordan had not
actually sought out professional treatment for his issues, a preponderance of the evidence showed
that he suffered a serious psychological injury that required professional treatment. Therefore,
the trial court did not err in scoring OV 4 at 10 points.
4
Because the trial court did not err in scoring OV 1 or OV 2, we reject defendant’s related claim
that counsel was ineffective for failing to object to the scoring of these offense variables. Any
objection would have been futile, and counsel was not required to raise a futile objection.
Darden, 230 Mich. App. at 605.
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D. ATTORNEY FEES AND COSTS
Finally, defendant challenges the trial court’s assessment of attorney fees and costs as
part of the judgment of sentence, without inquiring into her ability to pay the assessed costs of
$600 and the assessed attorney fees of $600. Because defendant did not object below to the form
or manner of these assessments, or the amounts assessed, these claims are unpreserved and
review is limited to plain error affecting defendant’s substantial rights. Carines, 460 Mich. at
763-764.
Contrary to what defendant argues, the trial court did not err by assessing attorney fees in
the judgment of sentence instead of a separate order. Defendant’s reliance on People v Dunbar,
264 Mich. App. 240, 255-256; 690 NW2d 476 (2004), overruled in part on other grounds in
People v Jackson, 483 Mich. 271 (2009), is misplaced. The rule in Dunbar has been abrogated
by MCL 769.1k(1)(b)(iv), which now permits a trial court to impose attorney fees as part of a
sentence. Further, the trial court was not required to review defendant’s ability to repay the
assessed attorney fees and costs at the time they were imposed. People v Jackson, 483 Mich.
271, 298; 769 NW2d 630 (2009). A court is not required to review a defendant’s ability to pay
until the fees are enforced. Id. Until such time as a defendant files a proper petition in the trial
court, there is no obligation by the trial court to review the defendant’s ability to pay the assessed
fees. Id. at 296-299. Accordingly, defendant has not established a plain error with respect to the
trial court’s assessment of attorney fees and costs.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
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