People of Michigan v. Craig Laqunitz Tyson ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 11, 2022
Plaintiff-Appellee,
v No. 352536
Wayne Circuit Court
CRAIG LAQUNITZ TYSON, also known as LC No. 19-004132-01-FC
CRAIG LAQUINTZ TYSON,
Defendant-Appellant.
Before: SAWYER, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right his convictions by a jury as a fourth-offense habitual
offender, MCL 769.12(1)(a), of manslaughter, MCL 750.321, unlawful driving away a motor
vehicle, MCL 750.413, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and
second offense possessing a firearm during the commission of a felony (felony-firearm), MCL
750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12,
to 25 to 50 years’ imprisonment for manslaughter, 1 to 5 years’ imprisonment for unlawful driving
away a motor vehicle, 1 to 5 years’ imprisonment for felon-in-possession, and 5 years’
imprisonment for second offense felony-firearm. The trial court gave defendant 246 days’ credit
for time served in jail. The trial court ordered defendant to serve his felony-firearm conviction
consecutively to his other convictions. We affirm defendant’s convictions and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 1, 2019, in a house located at 14231 Strathmore, Detroit, Michigan, defendant
and his cousin, Raymond Love, sat on a couch arguing until the two stood up from the couch,
pushed off of each other, defendant produced a handgun from his pocket and shot Love in the
chest. Love exclaimed, “For real,” then rushed at defendant and put his hands on the gun which
fired again at point-blank range into Love’s chest. Defendant fled in a company vehicle parked at
the house by a guest, Anthony Crawford, who witnessed the altercation and the first gunshot.
Crawford then quickly exited the house but heard the second shot. Love later died from the
gunshot wounds to his chest.
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The district court conducted a preliminary examination at which Crawford testified that he
saw defendant pull a gun out of his pocket and the weapon discharged causing a round, red hole
that oozed out blood from the center of Love’s chest. Love stated, “For real?” Crawford then
backed away toward the door. As he made it to the door, he saw Love rush defendant and both of
them had their hands on the gun struggling. Then Crawford heard a second shot as he tried to exit
the door. Once outside, Crawford ran a couple of houses down the street, stopped, and stood until
he heard his work truck start. That prompted him to walk to check on the truck, which he saw pull
out and proceed down Strathmore. Only Crawford had permission from the truck’s owner to drive
that truck. The district court found that the evidence established probable cause that crimes were
committed and that defendant committed the charged offenses. The court bound defendant over
for trial.
At trial, Crawford testified that, on March 1, 2019, he went to a two-story house located
at 14231 Strathmore in Detroit, where his daughter, Tara, and Love resided. When he arrived, he
entered the house and heard some loud bickering. He saw Love and defendant sitting on a couch
bickering loudly. Love and defendant raised their voices and both suddenly jumped up and faced
each other. Love went toward defendant and defendant pushed him back toward the end of the
couch. Crawford testified that he saw defendant take a black gun out of his pocket and fire it at
Love. Crawford saw Love look down at his chest and heard him say, “For real.” Crawford
explained that he observed the middle of Love’s chest and first saw a hole, then around the hole it
started to get red. Then Love rushed defendant. Love and defendant went down on the floor
between the coffee table and couch and wrestled for the gun. Love had his hand on defendant’s
hand that held the gun. While Crawford made his way to the door, he heard a second gunshot.
Crawford left the house and ran to a vacant lot. Soon after, he saw the company Dodge Ram
pickup, fitted with a snowplow that he used for work, drive off down the street. Crawford
explained that he had permission from the owner to drive the truck and no one else had permission
to do so. Crawford did not know who drove off in the pickup. Crawford then went to Love’s Ford
F-150 pickup, retrieved his phone from the truck and called 911. He stayed at the location.
Crawford admitted that he had not been truthful to the police when he gave his first
statement. He explained that he did not tell the police he went inside the house because he feared
the probation repercussions for having contact with the police. He affirmed that he later told the
truth to other police officers at a police station.
Dr. Milad Webb, an Associate Wayne County Medical Examiner, testified that he prepared
a postmortem report and body diagram of the decedent in this case which consisted of
identification of the body, an external examination of the body, an internal examination of the
organs, microscopic examination of tissues, and his opinion. He explained that he observed two
gunshot wounds to Love’s body, both on the front of his chest, one which had occurred at close
range and the other from a distance, and injuries to his face. He could not determine which gunshot
wound occurred first. Dr. Webb’s internal examination revealed the injury paths of the two bullets.
He found no medical abnormalities. Based upon the information gathered by the death
investigators and his examination and toxicology report, Dr. Webb concluded that multiple
gunshot wounds caused Love’s death and he certified the manner of death as homicide.
Defendant testified that, on March 1, 2019, he returned from purchasing some alcoholic
beverages at 3:00 p.m. to 14231 Strathmore, the house where, for the last five months, he resided
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with Love, Crawford, and his and Love’s uncle. Defendant stated that he had a close relationship
with his cousin, Love. Defendant testified that, around 4:00 p.m., Crawford came into the house
and gave Love some cocaine and dropped off a gun and then left. Defendant testified that he sat
in the living room which he used as his bedroom, and he and Love argued regarding a family
matter raised in text messages a relative sent to Love. Their argument escalated to a physical
altercation in which defendant and Love wrestled and pushed each other. Defendant testified that
Love next tried to pick up the gun that Crawford left that had been placed underneath a pillow on
the couch. Love told defendant “I’ll kill you in this mother fucker.” Defendant testified that he
and Love wrestled over the gun until defendant somehow ended up with the gun, and when Love
pushed him, defendant fell back over the couch. Defendant testified, “and as I’m getting back up
he went to rush me and I pulled the trigger.” Defendant asserted that his mind “was just chaotic,
it was I don’t know.” Defendant testified:
[Love] rushed me again and while we was tussling, the gun went off again and he
was on top of me. Then I rolled him off me and then he like he was trying to
breathe, like cuz don’t go. So I go outside, [Crawford] across the street and I’m
thinking like I’m calling 911. I’m like—I go back into the house, so I go back into
the house, I see him stop breathing. After he stopped breathing I left.
Defendant admitted that he fired the gun the first time, but stated that, the second time, the gun
discharged while he and Love were wrestling, and he did not know how the gun went off. He
denied that he tried to kill his cousin.
After the parties rested their cases, the trial court asked defense counsel if, in light of
defendant’s testimony, defendant desired any additional jury instructions. Defense counsel
responded that the jury should be given a nonstandard instruction regarding momentary innocent
possession of a weapon as permitted under People v Dupree, 486 Mich 693; 788 NW2d 399
(2010). The trial court asked if defendant sought a manslaughter instruction in light of the fact
that he testified that there was an absence of malice at the time of the shooting. Defense counsel
answered affirmatively and the prosecution asserted that such additional charge would be
appropriate based on the testimony. Defense counsel asked for a moment to consult with defendant
and then stated, “At this point in time he does not want the manslaughter instruction.” The trial
court stated, “I’m bound by the law so I’m going to give the instruction.” Defense counsel next
requested that the jury be instructed regarding self-defense. The trial court agreed to give a self-
defense instruction.
Defendant moved for a directed verdict on the ground that the prosecution failed to prove
that defendant acted with premeditation and deliberation. The prosecution opposed the motion.
The trial court considered the evidence in a light favorable to the prosecution and found that a
rational trier of fact could find that the prosecution proved the elements of the charged offenses
beyond a reasonable doubt. The trial court found issues of fact existed for the jury to decide.
Before instructing the jury, the trial court inquired whether the parties had reviewed the
revised verdict form to which they each indicated that they had no objections. The trial court
instructed the jury regarding the elements of the charged offenses that the prosecution had to prove
beyond a reasonable doubt, as well as voluntary manslaughter, self-defense, and possession of a
firearm in order to act in self-defense. The court instructed the jury that defendant did not have to
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prove that he acted in self-defense, but that the prosecution had to prove beyond a reasonable doubt
that defendant did not act in self-defense. After completion of giving the jury its instructions, the
trial court asked the parties if they were satisfied with the reading of the instructions. Defense
counsel advised the court that he was satisfied on behalf of the defense.
The jury returned from deliberating and advised the court that they had reached a verdict.
As to the first-degree murder charge, the jury found defendant guilty of the lesser offense of
manslaughter. The jury found defendant guilty of unlawful driving away a motor vehicle,
possession of a firearm by a felon, and felony-firearm manslaughter, and felony-firearm.
Defendant moved for judgment notwithstanding the verdict on the ground that the trial
court arbitrarily instructed the jury on manslaughter which neither the prosecution nor defense
counsel requested and the jury convicted him of that offense. Defendant asserted in his motion
that manslaughter is not a lesser included offense of first-degree premeditated murder but in his
brief conceded that Michigan law required the trial court to instruct the jury on voluntary
manslaughter, the lesser included offense of first-degree murder. Defendant stated that he and his
counsel objected to so instructing the jury. Defendant contended that the trial court abused its
discretion and infringed upon defendant’s rights by instructing the jury on manslaughter over his
and counsel’s objection and defendant’s desire to proceed with an all-or-nothing defense. The
prosecution opposed the motion. At the hearing, the trial court recounted defendant’s testimony
at trial which supported the manslaughter instruction despite defendant’s objection. The court
noted that it also gave the self-defense instruction that defendant requested. The trial court found
no evidence of an irregularity in the trial resulting in prejudice and stated that defendant had a fair
and impartial trial. The court, therefore, denied defendant’s motion. The trial court then sentenced
defendant as previously stated.
Defendant moved for a new trial or alternatively to correct an invalid sentence. He also
requested a Ginther evidentiary hearing.1 He asserted that the trial court erred in a number of ways
and alternatively that his preliminary examination counsel and his trial counsel provided
ineffective assistance in a number of ways. Among other things, defendant argued that the jury’s
verdict went against the great weight of the evidence requiring a new trial and that his manslaughter
sentence shocked the conscience and required resentencing. The prosecution opposed each of the
grounds for new trial and resentencing raised by defendant. Following a hearing, the trial court
denied defendant’s motion for a new trial, denied his motion to correct his sentence, and denied
his motion for a Ginther hearing. This appeal followed.
In this Court, defendant moved for remand to the lower court to address (1) whether his
trial counsel provided ineffective assistance by not introducing evidence of Love’s character for
aggression or defendant’s post-traumatic stress disorder (PTSD) diagnosis, (2) whether defendant
should be resentenced because of trial counsel’s defective performance related to the habitual
offender notice deficiencies and ineffective assistance, and (3) whether trial counsel provided
ineffective assistance by not objecting to imposition of enhanced penalty for his felony-firearm
conviction. The prosecution opposed defendant’s motion. This Court denied without prejudice
defendant’s motion to remand because defendant failed to persuade the Court of the necessity of
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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remand at the time. People v Tyson, unpublished order of the Court of Appeals entered September
29, 2021 (Docket No. 352536).
II. ANALYSIS
A. INSTRUCTIONAL ERROR OR INEFFECTIVE ASSISTANCE
1. MANSLAUGHTER INSTRUCTION
Defendant first argues that his trial counsel provided ineffective assistance by requesting
the manslaughter instruction without consulting defendant who desired and intended to present an
all-or-nothing murder defense strategy at trial and did not desire that the jury be instructed and
permitted to consider convicting him of the lesser offense. Alternatively, defendant contends that
the evidence did not support a manslaughter instruction and providing the jury the manslaughter
instruction constituted reversible error entitling defendant to a new trial. We disagree.
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). This Court
reviews the trial court’s findings of fact, if any, for clear error, and reviews de novo its conclusions
of law. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “Clear error exists if the
reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
Armstrong, 490 Mich at 289. This Court also reviews de novo constitutional issues. Harvey v
Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003). Although defendant preserved the issue, where,
as here, no evidentiary hearing has been held, this Court’s review is limited to mistakes apparent
on the trial court record. See People v Seals, 285 Mich App 1, 17, 19-20; 776 NW2d 314 (2009),
lv den 498 Mich 948 (2015).
This Court reviews a claim of instructional error involving a question of law de novo, but
reviews the trial court’s determination that a jury instruction applied to the facts of the case for an
abuse of discretion. People v Everett, 318 Mich App 511, 528; 899 NW2d 94 (2017). A trial court
abuses its discretion when the outcome is not within the range of reasonable and principled
outcomes. Id. at 516. In Everett, this Court explained:
Even when instructional error occurs, reversal is warranted only if after an
examination of the entire cause, it shall affirmatively appear that it is more probable
than not that the error was outcome determinative. The defendant bears the burden
of establishing that the error undermined the reliability of the verdict. [Id. at 528-
529 (quotation marks and citations omitted).]
A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This “right to counsel encompasses the
right to the effective assistance of counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d
563 (2007) (quotation marks and citation omitted). To prevail on an ineffective assistance of
counsel claim, “a defendant must show that (1) counsel’s performance fell below an objective
standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38,
51; 826 NW2d 136 (2021) (citations omitted). “In addition to proving that defense counsel’s
representation was constitutionally deficient, defendant must show that but for counsel’s deficient
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performance, a different result would have been reasonably probable.” Id. at 55-56 (quotation
marks and citations omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001)
(quotation marks and citation omitted). Defendant must overcome a strong presumption that trial
counsel provided effective assistance. Seals, 285 Mich App at 17. “This Court does not second-
guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit
of hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (citation omitted).
Trial counsel has “wide discretion in matters of trial strategy because many calculated risks may
be necessary in order to win difficult cases.” People v Odom, 276 Mich App 407, 415; 740 NW2d
557 (2007). This Court has recognized that trial counsel’s decision to seek or not seek a lesser
included offense instruction is a matter of trial strategy. See People v Dunigan, 299 Mich App
579, 584; 831 NW2d 243 (2013). Presenting an all-or-nothing defense has been recognized in
some circumstances as a legitimate trial strategy and not necessarily ineffective assistance of
counsel. People v Nickson, 120 Mich App 681, 687; 327 NW2d 333 (1982).
In Everett, this Court considered whether the trial court erred by failing to instruct the jury
on a lesser included offense. This Court explained:
It is the function of the trial court to clearly present the case to the jury and
instruct on the applicable law. Necessarily included lesser offenses are offenses in
which the elements of the lesser offense are completely subsumed in the greater
offense. A requested instruction on a necessarily included lesser offense is proper
if the charged greater offense requires the jury to find a disputed factual element
that is not part of the lesser included offense and a rational view of the evidence
would support it. Failure to instruct on a lesser included offense undermines
reliability in the verdict only when the evidence clearly supports the lesser included
instruction, but the instruction is not given. In analyzing whether the evidence
“clearly” supports the instruction, we must consider the “entire cause,” including
evidence that has been offered to support the greater offense. [Everett, 318 Mich
App at 529 (quotation marks, alteration, and citations omitted).]
“[W]hen a defendant is charged with murder, an instruction for voluntary and involuntary
manslaughter must be given if supported by a rational view of the evidence.” People v Mendoza,
468 Mich 527, 541; 664 NW2d 685 (2003) (citation omitted). “[M]anslaughter is a necessarily
included lesser offense of murder.” Id. at 544; People v Gillis, 474 Mich 105, 137; 712 NW2d
419 (2006). To prove that defendant committed voluntary manslaughter, the prosecution must
show “that (1) defendant killed in the heat of passion, (2) this passion was caused by an adequate
provocation, and (3) there was no lapse of time during which a reasonable person could have
controlled his passions.” People v Roper, 286 Mich App 77, 87; 777 NW2d 483 (2009) (citation
omitted). In People v Tierney, 266 Mich App 687, 714-715; 703 NW2d 204 (2005) (quotation
marks and citation omitted), this Court held that “[t]he degree of provocation required to mitigate
a killing from murder to manslaughter is that which causes the defendant to act out of passion
rather than reason.” “In order for the provocation to be adequate it must be that which would cause
a reasonable person to lose control.” Id. at 715 (citation and quotation marks omitted). “A
defendant properly convicted of voluntary manslaughter is a person who acted out of a temporary
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excitement induced by an adequate provocation and not from the deliberation and reflection that
marks the crime of murder.” People v Townes, 391 Mich 578, 590; 218 NW2d 136 (1974).2
The record in this case indicates that, when asked by the trial court whether the parties
desired the court to instruct the jury on manslaughter, defendant’s trial counsel immediately
responded affirmatively, apparently before consulting with his client regarding defendant’s
intention in that regard. Defendant promptly informed his trial counsel of his desire to not have
the court instruct the jury on manslaughter and defense counsel immediately posed an objection to
so instructing the jury. Defendant argues that his trial counsel deprived him of effective assistance
entitling him to a new trial. Defendant’s ineffective assistance argument in this regard lacks merit.3
Consultation with one’s attorney at critical stages in criminal proceedings is a defendant’s
right. See generally, People v Hieu Van Hoang, 328 Mich App 45, 59; 935 NW2d 396 (2019). In
People v Frazier, 478 Mich 231, 246; 733 NW2d 713 (2007), while reflecting upon Roe v Flores-
Ortega, 528 US 470, 478; 120 S Ct 1029; 145 L Ed 2d 985 (2000), our Supreme Court noted that
the United States Supreme Court “stated that when an attorney consults with his client about the
consequences of his client’s decision, the attorney’s performance can be considered deficient under
the first prong of Strickland [v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984)]
only if the attorney fails to follow his client’s express instructions.”
In this case, without consulting defendant, defense counsel gave assent to the manslaughter
instruction; but after consulting with defendant, promptly informed the trial court that defendant
objected to such jury instruction. Because defendant’s trial counsel neglected to first consult with
defendant regarding instructing the jury on the lesser included offense of voluntary manslaughter,
we conclude that defense counsel performed below an objective standard of reasonableness by not
consulting his client first before speaking. In addition to establishing the first element of his
ineffective assistance claim, however, he nevertheless must prove that, but for defense counsel’s
defective performance, “there is a reasonable probability that the outcome would have been
2
Involuntary manslaughter encompasses all homicides that do not constitute murder, voluntary
manslaughter, or a justified or excused homicide. People v Head, 323 Mich App 526, 532; 917
NW2d 752 (2018).
3
Defendant also argues tangentially that defense counsel’s request for the manslaughter instruction
provided him no benefit because conviction of voluntary manslaughter carried a mandatory 25-
year sentence under MCL 769.12. The “no benefit” argument hinges on defendant’s speculative
assumption that the jury would have completely acquitted him of the murder charges. Defendant
disregards the fact that his charge of first-degree murder carried a statutory life without parole
penalty under MCL 750.316(1)(a), and his charge of second-degree murder carried a statutory life
or term of years (at the discretion of the court) penalty under MCL 750.317. Both such potential
penalties exceeded the statutory minimum sentence for voluntary manslaughter. Contrary to
defendant’s argument, trial counsel’s request for the instruction actually served defendant’s best
interests because it gave the jury an option to convict defendant on a lesser charge that carried a
significantly lesser penalty.
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different.” Trakhtenberg, 493 Mich at 55-56 (quotation marks and citations omitted). He has
failed and cannot do so.
First, the record indicates that the trial court considered the evidence adduced at trial and
concluded that it must instruct the jury on the included lesser offense of voluntary manslaughter.
The trial court’s inquiry to the parties appears to have been made less for the purpose of discussion
than to enable objection before the court announced its decision that a rational view of the evidence
supported so instructing the jury. After defendant’s objection, the trial court stated without delay
that it concluded that the law required that the court so instruct the jury and entertained no further
discussion on the issue. Trial courts have discretionary authority to determine the instructions to
be given the jury. A voluntary manslaughter instruction must be given when a defendant, as here,
has been charged and tried for murder if supported by a rational view of the evidence. Mendoza,
468 Mich at 541. The trial court, therefore, properly determined the applicable jury instructions
in this case.
Second, as the prosecution pointed out to the trial court in opposition to defendant’s motion
for new trial, that regardless of defendant’s position and objection, the prosecution would have
requested the manslaughter instruction because the evidence supported providing it to the jury.
Thus, if defense counsel would have consulted defendant and objected to giving the instruction,
the outcome, i.e., the giving of the instruction, would not have differed. Accordingly, defendant
cannot establish that, but for his counsel’s defective performance, the instruction would not have
been given.
Defendant contends that the jury would have acquitted him of the murder charges absent
the manslaughter instruction. The record, however, does not support such conclusory contention
which appears to be founded solely on his speculation. It is unclear that the jury would have
acquitted defendant of murder since it obviously rejected defendant’s self-defense claim. Further,
defendant admitted possessing the gun and fatally shooting Love. Even if the jury acquitted
defendant of first-degree murder, it could have found him guilty beyond a reasonable doubt of
second-degree murder.
Defendant also argues that, even if his ineffective assistance claim fails, the trial court erred
by giving the manslaughter instruction. We disagree.
To prove that defendant committed voluntary manslaughter, evidence had to establish “that
(1) defendant killed in the heat of passion, (2) this passion was caused by an adequate provocation,
and (3) there was no lapse of time during which a reasonable person could have controlled his
passions.” Roper, 286 Mich App at 87. In this case, Crawford testified that defendant and Love
engaged in an argument that escalated to the point where defendant and Love rose from the couch
and physically accosted each other, whereupon defendant took a handgun out of his pocket and
shot Love in the chest. Crawford also testified that, as he personally began exiting the room, he
saw Love rush defendant and wrestle with defendant for the gun. Crawford testified that he did
not see, but heard, the second gunshot.
Defendant testified similarly to the building tension and rising passion as he and Love
argued, then rose and engaged in a physical altercation. Defendant admitted that he came to
possess the gun which he pointed and discharged at Love after breaking away from Love so that
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he and Love were physically separated. Defendant also admitted that, after he shot Love, Love
rushed defendant and the two men engaged in further wrestling for the gun until the gun again
discharged while in defendant’s possession, striking Love. Dr. Webb testified that two gunshots
to Love’s chest caused Love’s death. A rational view of the evidence presented at trial supported
the trial court’s decision to instruct the jury on voluntary manslaughter. From this evidence,
reasonable jurors could conclude beyond a reasonable doubt that (1) defendant killed Love in the
heat of passion, (2) defendant’s passion had been adequately caused by provocation of the men’s
argument and physical altercation, and (3) no lapse of time enabled defendant to control his
passions. Accordingly, we hold that the trial court did not err by giving the manslaughter
instruction.
2. SELF-DEFENSE INSTRUCTION OR INEFFECTIVE ASSISTANCE
Defendant also argues that the trial court erred by not instructing the jury that self-defense
served as a defense to second-degree murder and manslaughter, and alternatively that defense
counsel provided him ineffective assistance by not objecting and failing to request that the court
instruct the jury that self-defense applied to those charges. Defendant did not object to the jury
instructions as given. In fact, defense counsel advised the court that he was satisfied on behalf of
the defense with the jury instructions. When a party expresses satisfaction with the instructions as
given to the jury, the party has waived any claim of error respecting the instructions. People v
Thorne, 322 Mich App 340, 346; 912 NW2d 560 (2017). Such waiver extinguishes any error and
precludes appellate review. People v Carter, 462 Mich 206, 215, 219; 612 NW2d 144 (2000).
However, we will consider this claim of error in the context of addressing defendant’s
claim that defense counsel provided ineffective assistance for not requesting additional instructions
regarding self-defense. To prevail on an ineffective assistance of counsel claim, “a defendant must
show that (1) counsel’s performance fell below an objective standard of reasonableness and (2)
but for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” Trakhtenberg, 493 Mich at 51 (citations omitted). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Carbin, 463 Mich at 600
(quotation marks and citation omitted).
Defendant argues that the trial court’s instructions regarding self-defense indicated to the
jury that the defense only applied to the first-degree murder charge and not to the lesser offenses
of second-degree murder or voluntary manslaughter. The record reflects that the trial court
instructed the jury regarding the elements of first-degree premeditated murder and then instructed
that the jury could also consider the lesser offenses of second-degree murder and voluntary
manslaughter and instructed the jury as to the elements of those lesser offenses. The trial court
also instructed the jury on the other charged offenses and their respective elements. The trial court
then gave the following self-defense instructions:
The Defendant claims that he possessed the firearm in order to act in lawful
self-defense. A person may possess a firearm to defend himself under certain
circumstances even where it would otherwise be unlawful for him to possess the
firearm. If a person possesses a firearm to act in lawful self-defense his actions are
excused and he is not guilty of being a felon in possession of a firearm.
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Just as when considering the claim of self-defense to the charge of homicide
you should consider all the evidence and use the following rules to decide whether
the Defendant possessed a firearm to act in lawful self-defense. You should judge
the Defendant’s conduct according to how the circumstances appeared to him at the
time he acted.
First, when he acted the Defendant must have honestly and reasonably
believed that he had to possess a firearm to protect himself from imminent unlawful
use of force by another. If his belief was honest and reasonable he could act to
defend himself with a firearm even if it turns out later that he was wrong about how
much danger he was in.
Second, a person is only justified in possessing a firearm when necessary at
the time to protect himself from danger of death or serious injury. The Defendant
may only possess a firearm if it is appropriate to the attack made and the
circumstances as he saw them.
When you decide whether the possession of the firearm was what seemed
necessary you should consider whether the Defendant knew about any other ways
of protecting himself. But you may also consider how the excitement of the
moment affected the choice the Defendant made.
Third, at the time he possessed the firearm the Defendant must have [sic]-
must not have been engaged in a criminal act that would tend to provoke a person
to try to defend himself from the Defendant.
An individual who has not or is not engaged in the commission of a crime
at the time he uses deadly force, may use deadly force against another individual
anywhere he has the right to be, with no duty to retreat, if either of the following
applies. The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent imminent death of or imminent great bodily harm to
himself or to another individual. The individual honestly and reasonably believes
that the use of deadly force is necessary to prevent the imminent sexual assault of
himself or another individual.
An individual who has not or is not engaged in the commission of a crime
at the time he used force other than deadly force may be used [sic]-may use force
other than deadly force against another individual anywhere he has the right to be,
with no duty to retreat, if he honestly and reasonably believes that the use of force
is necessary to defend himself or another individual from imminent unlawful use
of force by another individual.
The Defendant claims that he acted in lawful self-defense. A person may
act [sic]-a person has the right to use force or even take a life to defend himself
under certain circumstances. If a person acts in lawful self-defense, that person’s
actions are justified and he is not guilty of homicide murder first degree
premeditated.
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You should consider all the evidence and use the following rules to decide
whether Defendant acted in lawful self-defense. Remember to judge the
Defendant’s conduct according to how the circumstances appeared to him at the
time he acted.
First, at the time he acted the Defendant must have honestly and reasonably
believed he was in danger of being killed or seriously injured. If the Defendant’s
belief was honest and reasonable he could act immediately to defend himself even
if it turned out later that he was wrong about how much danger he was in. In
deciding if the Defendant’s belief was honest and reasonable you should consider
all the circumstances as they appeared to the Defendant at the time.
Second, a person may not kill or seriously injure another person just to
protect himself against what seems like a threat of only minor injury. The
Defendant must have been afraid of death or serious physical injury. When you
decide if the Defendant was afraid of one or more of these, you should consider all
of the circumstances: the condition of the people involved, including their relative
strength or whether the other person was armed with a dangerous weapon or had
some other means of injuring the Defendant or the nature of the other person’s
attack or threat or whether the Defendant knew about any previous violent acts or
threats made by the other person.
* * *
All right. Third, at the time he acted the Defendant must have honestly or
reasonably believed that what he did was immediately necessary. Under the law a
person may only use as much force as he thinks is necessary at the time to protect
himself. When you decide whether the amount of force used seemed to be
necessary, you may consider whether the Defendant knew about any other ways of
protecting himself. But you may also consider how the excitement of the moment
affected the choice the Defendant made.
The Defendant does not have to prove that he acted in self-defense. Instead,
the prosecutor must prove beyond a reasonable doubt that the Defendant did not act
in self-defense.
As defendant points out, the trial court stated, “If a person acts in lawful self-defense, that
person’s actions are justified and he is not guilty of homicide murder first degree premeditated”
but the court did not separately state further that the self-defense instruction applied to the included
lesser offenses of second-degree murder or voluntary manslaughter. The trial court’s instructions,
nevertheless, informed the jury that if defendant acted out of a reasonable belief that the
circumstances necessitated use of deadly force, defendant could kill another person to protect
himself. Taken as a whole, the self-defense instructions cannot be reasonably understood to state
that they applied only to the first-degree premeditated murder charge as defendant contends. “The
instructions must not be extracted piecemeal to establish error.” People v Aldrich, 246 Mich App
101, 124; 631 NW2d 67 (2001) (quotation marks and citation omitted). Further, “[e]ven if the
instructions are somewhat imperfect, reversal is not required as long as they fairly presented the
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issues to be tried and sufficiently protected the defendant’s rights.” Id. (citation omitted).
Considering this in the context of defendant’s claim of ineffective assistance, we do not conclude
that defendant has established that his counsel’s failure to object and seek additional instructions
fell below an objective standard of reasonableness.
Even assuming that defense counsel should have objected and requested clarification that
the self-defense instructions applied to the lesser offenses, we are not persuaded that, but for
counsel’s deficient performance, the outcome of defendant’s trial would have been different. The
record indicates that defendant testified that he acted in self-defense, that he believed himself in
imminent danger and shot the victim to protect himself. During closing argument defense counsel
directed the jury’s attention to the evidence and argued that the evidence established that defendant
feared for his life and took possession of the gun and used it to protect himself. The jury considered
the evidence and concluded that the prosecution proved that defendant did not act in self-defense.
The jury, however, concluded that the prosecution failed to prove beyond a reasonable doubt that
defendant committed either first-degree or second-degree murder. The jury found that defendant
committed voluntary manslaughter, felony-firearm, and felon-in-possession. Defendant has failed
to establish that, had defense counsel objected and requested additional instruction regarding self-
defense, the jury would have found that he acted in self-defense and acquitted him of all charges.
Accordingly, his ineffective assistance of counsel claim in this regard fails and he is not entitled
to relief.
B. INEFFECTIVE ASSISTANCE DURING PRELIMINARY EXAMINATION
Defendant next argues that during the preliminary examination his counsel provided him
ineffective assistance by going forward with the proceeding without all of the statements Crawford
made to the police, which he contends prevented defense counsel from effectively cross-examining
and impeaching him with his conflicting statements to the police, and had his counsel done so he
would not have been bound over for trial on the charged offenses. We disagree.
“The purpose of a preliminary examination is to determine whether probable cause exists
to believe that a crime was committed and that the defendant committed it.” People v Lowery, 274
Mich App 684, 685; 736 NW2d 586 (2007). Accordingly, the prosecutor need not demonstrate
guilt beyond a reasonable doubt at the preliminary examination stage. Id. Probable cause is
established if “a person of ordinary caution and prudence [could] conscientiously entertain a
reasonable belief of the defendant’s guilt.” Id. (quotation marks and citation omitted).
In People v Taylor, 316 Mich App 52, 55; 890 NW2d 891 (2016) (citation omitted), this
Court recently explained:
Once a criminal case has been bound over and jurisdiction has been vested
in the circuit court, there are only limited circumstances in which the circuit court
may properly remand the case for a new or continued preliminary examination. If
a motion to quash is filed and the circuit court determines that the evidence is
insufficient to support the bindover, the circuit court is permitted to remand the case
for a further examination at which the prosecutor may seek to remedy the
shortcoming in the proofs needed to establish probable cause.
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In this case, following the preliminary examination, the district court bound over defendant
for trial on the charged offenses. Defendant later moved to quash the bindover on the ground that
the evidence presented at the preliminary examination failed to establish premeditation and
deliberation. Not until after his trial, did defendant raise the issue of ineffective assistance related
to his preliminary examination counsel’s cross-examination of Crawford. The presentation of
sufficient evidence to convict at trial, however, renders any erroneous bindover decision harmless.
People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002). The record reflects that the
prosecution presented sufficient evidence to convict defendant of the charged offenses and the jury
determined that the evidence established beyond a reasonable doubt that defendant committed
voluntary manslaughter. Even if defendant’s preliminary examination counsel performed
deficiently as alleged, and as a result the district court erroneously bound defendant over for trial
on the charged offenses, under Libbett, the alleged erroneous bindover decision was harmless.
Respecting defendant’s claim that his counsel performed deficiently at the preliminary
examination, analysis of the transcript of that proceeding does not fully support his claim of
ineffective assistance in this regard. The record reflects that, on cross-examination, Crawford
testified that he made more than one statement to the police. Defendant’s counsel used that
admission to challenge Crawford’s credibility, and the record indicates that counsel recognized
that Crawford’s preliminary examination testimony varied from his original statement to the
police. Although Crawford denied that he told the police that he did not see the shooting and
attempted to bolster his preliminary examination testimony by claiming it was truthful, defense
counsel made clear on the record that Crawford’s testimony varied from his statements to the
police, and challenged its reliability. It is unclear from the record the extent to which defense
counsel lacked preparedness to cross-examine Crawford. Further, even if one assumes that defense
counsel lacked sufficient preparation to more effectively cross-examine Crawford at the
preliminary examination, and his performance thereby fell below an objective standard of
reasonableness, defendant has failed to establish that, but for his preliminary examination
counsel’s defective performance, the outcome of the proceedings would have been different. If
counsel had all of Crawford’s statements to the police, and cross-examined him during the
preliminary examination, at most it may have revealed some variation in Crawford’s statements,
but likely would not have seriously undermined his testimony on which the district court
determined its bindover decision. Defendant, therefore, cannot establish the second element of his
ineffective assistance claim.
Moreover, at defendant’s trial, defense counsel had all discovery materials and used
Crawford’s statements to the police plus his 911 call statements during cross-examination to
impeach Crawford’s trial testimony. Trial counsel presented the jury the full scope of the variation
in Crawford’s statements. Nevertheless, the jury convicted defendant. Thus, even if his
preliminary examination counsel had been armed with all of the discovery and cross-examined
Crawford with it, such would have made no difference in the district court’s bindover decision.
Crawford’s preliminary examination testimony sufficed to establish probable cause to bind over
defendant on the charged offenses. Accordingly, defendant cannot establish the second element
of this ineffective assistance claim.
Defendant has failed to establish that his preliminary examination counsel performed
deficiently, and even if his performance fell below an objective standard of reasonableness,
defendant cannot establish that, but for his counsel’s performance, the outcome of the proceedings
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would have been different. Moreover, defendant’s trial counsel had all of Crawford’s statements
and the 911 call information and effectively cross-examined him with it, but the prosecution
presented sufficient evidence to convict at trial which rendered any erroneous bindover decision
harmless.
C. INEFFECTIVE ASSISTANCE FOR NOT ELICITING TESTIMONY OF LOVE’S
CHARACTER AND DEFENDANT’S MENTAL DISORDER
Defendant argues that his trial counsel provided ineffective assistance by not eliciting
testimony regarding Love’s character for aggression and his own PTSD. We disagree.
Defendant’s claim that his counsel provided ineffective assistance by not questioning
defendant regarding his purported PTSD diagnosis lacks merit because nothing in the lower court
record even remotely supports his claimed diagnosis. His presentence investigation report (PSIR)
indicates that he reported being previously diagnosed with depression and PTSD, but defendant
has presented no documentation of an actual clinical diagnosis of PTSD. Defendant submitted his
affidavit as an exhibit to his appeal brief in which he stated that he told his trial counsel that his
PTSD diagnosis would support his self-defense claim but that discussion went no further. Notably
absent in defendant’s affidavit are any facts establishing when he received such diagnosis, who
rendered the diagnosis, or reference to any clinical documentation that might corroborate his
assertion. Neither the trial court nor this Court has been presented any evidence of such diagnosis.
Moreover, analysis of defendant’s trial testimony indicates that defense counsel gave
defendant ample opportunity to testify regarding his state of mind during the altercation, his
response to Love’s conduct, and his own actions and motivations. Although given the opportunity
to answer the open-ended questions posed by defense counsel, defendant chose or neglected to
testify regarding his purported PTSD diagnosis or the effect that having such mental disorder had
on his conduct during the incident. We cannot reasonably conclude that defense counsel
performed deficiently by not specifically directing defendant to testify in this regard. We cannot
second-guess matters of trial strategy, nor assess counsel’s competence with the benefit of
hindsight. Russell, 297 Mich App at 716.
Even if we were to conclude that defense counsel’s performance fell below the applicable
standard, defendant cannot establish that but for counsel’s deficient performance the outcome of
his trial would have been different. The prosecution presented evidence that negated defendant’s
claim of self-defense. Defendant’s own testimony critically undermined his self-defense claim. It
is not reasonably likely that had defendant testified regarding PTSD that the jury would have
ignored defendant’s admissions to possession of the handgun, however obtained, his pointing and
firing it at Love when they separated, then again discharging the handgun at point-blank range
resulting in Love’s death from his chest wounds. Accordingly, defendant’s claim of ineffective
assistance in this regard lacks merit.
Respecting defendant’s claim that his counsel provided ineffective assistance by failing to
elicit testimony regarding Love’s character for anger and aggression, close analysis of the record
again defeats this claim. The evidence adduced at trial indicates that the victim’s character was
not an essential element of defendant’s self-defense claim.
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Evidence concerning the aggressive character of a homicide victim, even if the defendant
was unaware of it at the time, is admissible in furtherance of a self-defense claim to prove that the
victim was the probable aggressor. MRE 404(a)(2); People v Harris, 458 Mich 310, 315-316; 583
NW2d 680 (1998). However, this type of character evidence may only be admitted in the form of
reputation testimony, not by testimony regarding specific instances of conduct unless the testimony
regarding those instances is independently admissible for some other reason or where character is
an essential element of a claim or defense. MRE 405; Harris, 458 Mich at 318-319.
The record reflects that other witnesses who testified remarked that defendant and Love
argued on occasion, but the witnesses reported no major character flaws or mental health issues in
either person. Nevertheless, such testimony opened the door to inquiries regarding Love’s
character. During defendant’s examination by defense counsel, defendant had ample opportunity
to testify regarding Love’s character. Defendant, however, testified that he and Love were very
close and he had never had a physical fight with Love despite arguing and yelling at each other.
When asked directly if he had seen Love angry before with other individuals, defendant answered
affirmatively but did not expound. When asked if he had ever seen Love with a gun before,
defendant again answered affirmatively but did not expound. Even during cross-examination by
the prosecution, defendant had opportunity to testify regarding Love’s character. He did not.
Defense counsel cannot be held to have performed defectively under the circumstances. We
cannot second-guess counsel in matters of trial strategy or assess counsel’s competence with the
benefit of hindsight. Russell, 297 Mich App at 716.
Even if we conclude that defense counsel’s performance fell below the applicable standard,
defendant cannot establish that but for counsel’s deficient performance the outcome of his trial
would have been different. The prosecution presented evidence that negated defendant’s claim of
self-defense. Defendant’s own testimony critically undermined his self-defense claim. It is not
reasonably likely that, had defendant testified regarding Love’s character, the jury would have
ignored defendant’s admissions and the evidence that defeated his self-defense claim.
Accordingly, defendant’s claim of ineffective assistance in this regard lacks merit.
D. VERDICT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Defendant also contends that the jury’s verdict went against the great weight of the
evidence. We disagree.
We review for an abuse of discretion a trial court’s grant or denial of a motion for a new
trial on the ground that the verdict was against the great weight of the evidence. People v Unger,
278 Mich App 210, 232; 749 NW2d 272 (2008). An abuse of discretion occurs when a trial court
chooses an outcome falling outside the range of reasonable and principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). We review a great-weight challenge by
deciding 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 Cameron, 291 Mich App 599, 616-
617; 806 NW2d 371 (2011) (quotation marks and citation omitted).
A new trial may be granted, on some or all of the issues, if a verdict is against the great
weight of the evidence. MCR 2.611(A)(1)(e); MCR 6.431(B). The jury’s verdict should not be
set aside, however, if there is competent evidence to support it. People v Schwartz, 215 Mich 197,
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208-209; 183 NW 723 (1921). Determining whether a verdict is against the great weight of the
evidence requires review of the whole body of proofs. People v Herbert, 444 Mich 466, 475; 511
NW2d 654 (1993). “[W]hen testimony is in direct conflict and testimony supporting the verdict
has been impeached, if it cannot be said as a matter of law that the testimony thus impeached was
deprived of all probative value or that the jury could not believe it, the credibility of witnesses is
for the [finder of fact].” People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998) (quotation
marks and citations omitted).
In People v Lacalamita, 286 Mich App 467, 469-470; 780 NW2d 311 (2009) (quotation
marks and citations omitted) this Court explained:
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. 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. Conflicting testimony, even when
impeached to some extent, is an insufficient ground for granting a new trial.
Further, the resolution of credibility questions is within the exclusive province of
the jury.
“Conflicting testimony and questions of witness credibility are generally insufficient grounds for
granting a new trial. Absent exceptional circumstances, issues of witness credibility are for the
trier of fact.” Unger, 278 Mich App at 232 (citation omitted). On appeal, “[t]his 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 Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
In this case, the record reflects that the prosecution presented evidence from which
reasonable jurors could find beyond a reasonable doubt that defendant committed each element of
voluntary manslaughter, as well as the other charged offenses. Although the defense presented
some evidence to impeach Crawford’s testimony and challenged his credibility by exposing
inconsistencies in his statements to the police with his trial testimony, close analysis of that
evidence indicates that it did not serve as destructive cross-examination because it exposed only
some discrepancies but not on key facts that were corroborated by defendant’s own testimony and
Dr. Webb’s testimony. Defendant’s description of the incident substantially correlated to
Crawford’s description. Significantly, defendant’s admissions that he possessed the handgun, and
when he and Love separated he pointed the gun and shot Love, then again shot Love at point-blank
range, independently supported the jury’s verdict. “A trier of fact can infer a defendant’s intent
from his words, acts, means, or the manner used to commit the offense.” People v Harrison, 283
Mich App 374, 382; 768 NW2d 98 (2009). “Minimal circumstantial evidence and reasonable
inferences can sufficiently prove the defendant’s state of mind, knowledge, or intent.” People v
Miller, 326 Mich App 719, 735; 929 NW2d 821 (2019).
Viewing the evidence in this case in the light most favorable to the prosecution, rational
triers of fact could find that defendant committed the charged offenses and specifically voluntary
manslaughter. The jury ultimately made the necessary credibility decisions and decided the truth
of what transpired during the incident. They found that the evidence did not support defendant’s
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claim of self-defense. Therefore, the verdict was not contrary to the great weight of the evidence.
Accordingly, the trial court did not err by denying defendant’s motion for a new trial. The great
weight of the evidence supported the jury’s verdict.
E. HABITUAL NOTICE DEFECT OR INEFFECTIVE ASSISTANCE
Defendant claims that the prosecution served a defective fourth-offense habitual offender
notice which renders the imposition of the statutory mandatory minimum sentence of 25 years’
imprisonment for his voluntary manslaughter conviction invalid entitling him to resentencing.
Alternatively, defendant argues that he is entitled to resentencing because his trial counsel failed
to raise this objection during defendant’s sentencing. We disagree.
This Court reviews de novo a trial court’s statutory interpretation, and for an abuse of
discretion its sentencing decisions. Babcock, 469 Mich at 253. This Court reviews a trial court’s
denial of a motion for resentencing for an abuse of discretion. People v Puckett, 178 Mich App
224, 227; 443 NW2d 470 (1989). An abuse of discretion occurs when the trial court chooses an
outcome that is outside the range of principled outcomes. People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010). A claim of ineffective assistance of counsel “presents a mixed
question of fact and constitutional law.” Armstrong, 490 Mich at 289. Although defendant
preserved the issue, where, as here, no evidentiary hearing has been held, this Court’s review is
limited to mistakes apparent on the trial court record. Seals, 285 Mich App at 17.
“Legislatively mandated sentences are presumptively proportional and presumptively
valid.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011). MCL 769.12 statutorily
mandates enhanced punishment for persons who are convicted of a fourth felony following three
or more felony convictions. Under MCL 769.13(1), if the prosecution intends to seek the penalty
enhancement under MCL 769.12(1)(a), the prosecution must file “a written notice of his or her
intent to do so within 21 days after the defendant’s arraignment on the information charging the
underlying offense or, if arraignment is waived, within 21 days after the filing of the information
charging the underlying offense.” The notice must list the prior conviction or convictions that will
or may be relied upon for purposes of sentence enhancement. MCL 769.13(2). MCL 769.12
provides in relevant part:
(1) If a person has been convicted of any combination of 3 or more felonies
or attempts to commit felonies, whether the convictions occurred in this state or
would have been for felonies or attempts to commit felonies in this state if obtained
in this state, and that person commits a subsequent felony within this state, the
person shall be punished upon conviction of the subsequent felony and sentencing
under section 13 of this chapter as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a
serious crime, and 1 or more of the prior felony convictions are listed prior felonies,
the court shall sentence the person to imprisonment for not less than 25 years. Not
more than 1 conviction arising out of the same transaction shall be considered a
prior felony conviction for the purposes of this subsection only.
* * *
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(6) As used in this section:
(a) “Listed prior felony” means a violation or attempted violation of any of
the following:
* * *
(iii) . . . MCL 750.2274 . . . .
(iv) A second or subsequent violation or attempted violation of section 227b
of the Michigan penal code, 1931 PA 328, MCL 750.227b5.
* * *
(c) “Serious crime” means an offense against a person in violation
of . . . MCL . . . 750.3216 . . . .
Defendant does not contend that the prosecution failed to provide him the habitual offender
notice. Defendant challenges the notice’s validity on the ground that it did not restrict its list to
only four felonies, and more particularly because it identified two felony convictions in 2005 that
arose out of the same criminal transaction. The prosecution argues that it complied with MCL
769.12 and 13’s notice requirements, and counters that the statutory scheme does not limit the
number of felonies the prosecution may list, but restricts the sentencing court from consideration
of more than one felony that arose from the same criminal transaction. The prosecution’s argument
has merit and defendant’s does not.
The record reflects that the prosecution filed a felony information on April 12, 2019, that
gave fourth-offender notice identifying five previous felony convictions, and later filed a habitual
offender notice that referenced the previously filed felony information. The prosecution also filed
a felony complaint on April 15, 2019, that gave defendant notice of the charges against him and
also gave a fourth-offense habitual offender notice. Later, the prosecution filed an amended felony
information on July 30, 2019, that again gave fourth-offense habitual offender notice. The two
felony information forms and the felony complaint listed defendant’s five previous felony
convictions: (1) 2001, malicious destruction of fire/police property in violation of MCL 750.377b;
(2) 2005, felon in possession of a firearm in violation of MCL 750.227b; (3) 2005, carrying a
4
MCL 750.227 prohibits a person from carrying a concealed weapon and violation of the statute
constitutes a felony punishable by imprisonment for not more than 5 years.
5
MCL 750.227b prohibits a person from carrying or possessing a firearm during the commission
or attempted commission of a felony and a person who violates the statute is guilty of a felony and
shall be punished by imprisonment for 2 years, and if convicted of a second offense, the person
shall be punished by imprisonment for 5 years, and conviction of three or more such offenses
requires that the person shall be punished by imprisonment for 10 years.
6
MCL 705.321 provides that manslaughter is a felony punishable by imprisonment of not more
than 15 years.
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concealed weapon in violation of MCL 750.227; (4) 2008, resisting and obstructing a police officer
in violation of MCL 750.81d(1); and (5) 2011, receiving and concealing stolen property a motor
vehicle in violation of MCL 750.535(7). The notices and the complaint stated the 25-year
minimum mandatory sentence that would result under MCL 769.12.
The prosecution’s notice of intent to seek a fourth-offense habitual offender mandatory
minimum sentence met the requirements of MCL 769.12 by identifying three or more felony
convictions, with at least one of which identified a listed prior felony as required under MCL
769.12(6). Defendant had actual notice of the prosecution’s intent to seek an enhanced sentence
which afforded defendant an opportunity to respond to the habitual offender notification. The
charging documents in the lower court file all apprised defendant of his fourth-offense habitual
offender status and that he faced a mandatory minimum 25-year sentence if found guilty of murder
or the lesser included offenses. See People v Heard, 323 Mich App 526, 544-546; 917 NW2d 752
(2018).
Defendant’s contention that the notice must be deemed defective because it listed more
than three prior felony convictions and featured two felony convictions of the same date lacks
merit because the notice is required to identify the required number of prior felonies and does not
restrict the prosecution from listing more, but merely prohibits the trial court’s reliance on more
than one conviction that arose out of the same criminal transaction. Even striking one of
defendant’s listed 2005 prior felony convictions does not leave the prosecution’s notice wanting
because the other convictions satisfy the statutory requirement. Accordingly, defendant’s
argument fails as a matter of law.
Defendant’s argument for applying the rule of lenity also lacks merit. In People v Johnson,
302 Mich App 450, 462; 838 NW2d 889 (2013) (quotation marks and citations omitted), this Court
explained:
The “rule of lenity” provides that courts should mitigate punishment when
the punishment in a criminal statute is unclear. The rule of lenity applies only if
the statute is ambiguous or in absence of any firm indication of legislative intent.
MCL 769.12 lacks any ambiguity and the Legislature’s intent is clear. The statute’s plain
language requires the imposition of a 25-year minimum sentence and sets forth what the
prosecution must establish to seek the enhancement of a sentence where a person has been
convicted of a combination of three or more felonies. Listing more than three prior felonies does
not deprive the prosecution of its right to seek the enhancement of a defendant’s sentence following
conviction of a listed serious crime against a person. Defendant had adequate notice of the
prosecution’s intent and the trial court properly applied MCL 769.12 when sentencing defendant.
Defendant also asserts that defense counsel provided him ineffective assistance by not
objecting during his sentencing. Defendant, however, offers no argument or explanation in this
regard. This Court has explained that, “where a party fails to brief the merits of an allegation of
error, the issue is deemed abandoned by this Court.” Yee v Shiawassee Co Bd of Comm’rs, 251
Mich App 379, 406; 651 NW2d 756 (2002) (citation omitted). Moreover, “failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.”
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People v Ericksen, 288 Mich App 192, 205; 793 NW2d 120 (2010) (citation omitted). Defendant
is not entitled to resentencing.
F. REASONABLENESS OF MANDATORY MINIMUM SENTENCE
Defendant argues that his mandatory minimum sentence of 25 years’ imprisonment lacks
reasonableness and proportionality to the offense and the offender because it is too severe and
violates his due-process rights. Alternatively, defendant argues that his trial counsel provided
ineffective assistance by not raising these sentencing issues during sentencing. We disagree.
This Court reviews de novo a trial court’s statutory interpretation, and for an abuse of
discretion its sentencing decisions. Babcock, 469 Mich at 253. This Court reviews a trial court’s
denial of a motion for resentencing for an abuse of discretion. Puckett, 178 Mich App at 227. An
abuse of discretion occurs when the trial court chooses an outcome that is outside the range of
principled outcomes. Schaw, 288 Mich App at 236. “[T]he proper inquiry when reviewing a
sentence for reasonableness is whether the trial court abused its discretion by violating the
principle of proportionality set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990), which requires sentences imposed by the trial court to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” People v Steanhouse, 500 Mich
453, 459-460; 920 NW2d 327 (2017) (quotation marks omitted).
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” Armstrong, 490 Mich at 289. Although defendant preserved the issue, where,
as here, no evidentiary hearing has been held, this Court’s review is limited to mistakes apparent
on the trial court record. Seals, 285 Mich App at 17. However, “where a party fails to brief the
merits of an allegation of error, the issue is deemed abandoned by this Court.” Yee, 251 Mich App
at 406.
“The United States Constitution prohibits cruel and unusual punishment. US Const, Am
VIII. The Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1, § 16.”
People v Costner, 309 Mich App 220, 232; 870 NW2d 582 (2015). “If a punishment passes muster
under the state constitution, then it necessarily passes muster under the federal constitution.”
People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011) (quotation marks and citation
omitted). A sentence that is proportionate does not constitute cruel or unusual punishment. People
v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). “If a statute mandates a minimum
sentence for an individual sentenced to the jurisdiction of the department of corrections, the court
shall impose sentence in accordance with that statute,” and such a mandatory minimum sentence
is not considered a guidelines “departure.” MCL 769.34(2)(a). This Court has held that mandatory
minimum sentences are presumptively proportionate and do not violate the principle of
proportionality set forth in Milbourn. People v Williams, 189 Mich App 400, 404; 473 NW2d 727
(1991) (holding a ten-year mandatory minimum sentence proportionate). “ ‘In order to overcome
the presumption that the sentence is proportionate, a defendant must present unusual circumstances
that would render the presumptively proportionate sentence disproportionate.’ ” People v Bowling,
299 Mich App 552, 557-558; 830 N2d 800 (2013), quoting People v Lee, 243 Mich App 163, 187;
622 NW2d 71 (2000). Defendant has failed to meet this requirement.
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In this case, defendant fails to identify or explain how his crime and criminal history render
his sentence disproportionate. Defendant’s PSIR reports that defendant had multiple prior felony
convictions and his conviction of voluntary manslaughter constituted a serious crime of passion in
which he shot and killed Love. Defendant’s 25-year mandatory minimum sentence is
proportionate to the offender and the seriousness of the offense. The record indicates that the trial
court appropriately considered the offense and the offender to determine defendant’s sentence.
“Because defendant has not overcome the presumption of proportionality, and because a
proportionate sentence is not cruel or unusual, defendant has not established a constitutional
violation.” Powell, 278 Mich App at 324.
Defendant also argues that defense counsel provided him ineffective assistance by not
objecting during his sentencing on reasonableness and proportionality grounds. Defendant,
however, offers no argument or explanation in this regard. Because defendant has failed to brief
the merits of this allegation of error, the issue is deemed abandoned by this Court. Yee, 251 Mich
App at 406. Moreover, “failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” Ericksen, 288 Mich App at 205 (citation omitted).
Defendant, therefore, is not entitled to resentencing.
G. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT COLLATERALLY
ATTACKING TWO OF DEFENDANT’S PRIOR FELONY CONVICTIONS
Defendant argues that his counsel provided ineffective assistance by not collaterally
attacking two prior felony convictions on the ground that they were invalid because his trial
counsel in both cases provided him ineffective assistance. Defendant’s argument lacks legal merit.
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” Armstrong, 490 Mich at 289. Although defendant preserved the issue, where,
as here, no evidentiary hearing has been held, this Court’s review is limited to mistakes apparent
on the trial court record. Seals, 285 Mich App at 17.
In People v Ingram, 439 Mich 288, 300-302; 484 NW2d 241 (1992), a case in which the
defendant collaterally attacked a prior guilty plea years after he made the plea in an effort to oppose
being sentenced as a third-offense OUIL habitual offender, our Supreme Court reversed this
Court’s reversal of his conviction and explained:
We are persuaded that in order to best achieve the legitimate goals of finality and
the efficient and effective administration of justice, while also achieving the goals
of Boykin and Jaworski, as well as the goals of all applicable plea-taking
requirements and procedural safeguards in these cases, we must follow a policy
which provides incentive for raising claims on direct review where proper relief
can be afforded and error corrected. Such a policy, we find, would do the most to
insure the achievement of proceedings that are consistent with the rudimentary
demands of fair procedure. While this Court has not previously articulated this
distinction between collateral attacks and direct appeals in the application and
adoption of the requirements regarding plea-taking proceedings, such a distinction
is now properly drawn, when for the first time the specific issue is directly before
us. [Citations omitted.]
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Ingram directs that defendant cannot collaterally attack prior guilty pleas on the ground
that in his other cases his defense counsel provided ineffective assistance. Defendant had the
obligation to challenge those cases in the trial courts and by direct appeals of his pleas and his
defense counsels’ performance in those cases. As a matter of law, defendant cannot collaterally
attack his guilty plea convictions in his prior cases here, as a means to evade sentencing to the
statutory mandatory minimum as a fourth-offenses habitual offender. See Ingram, 439 Mich
at 294-295, 300-302; see also People v Asquini, 227 Mich App 702; 577 NW2d 142 (1998).
Defendant’s claim that his trial counsel in this case provided ineffective assistance by not
collaterally attacking his prior convictions lacks merit. Failure to advance a meritless argument or
raise a futile objection does not constitute ineffective assistance of counsel. Ericksen, 288 Mich
App at 205.
Michigan law does not permit a defendant to seek resentencing in a later case by
challenging his sentences imposed for two prior felonies in earlier cases that he now claims were
invalid because his defense counsel in those cases provided ineffective assistance. Such challenge
is an improper collateral attack of the two prior convictions. Accordingly, defendant is not entitled
to resentencing in this case.
H. IMPROPER AMENDMENT OF INFORMATION OR INEFFECTIVE ASSISTANCE
Defendant argues that the trial court erred by permitting the prosecution to file an amended
felony information that gave notice that the prosecution intended to seek an enhanced penalty if
convicted of felony-firearm in this case. Alternatively, defendant asserts that his trial counsel
provided ineffective assistance by failing to object during defendant’s sentencing. We disagree.
The trial court did not abuse its discretion by permitting the prosecution to amend the
felony information to provide defendant a felony-firearm second offense notice because MCL
767.76 and MCR 6.112(H) authorize trial courts to do so before, during, or after trial, and
defendant does not nor can he dispute that he had a prior felony-firearm conviction making him
subject to an enhanced sentence under MCL 750.227b for his felony-firearm conviction in this
case. MCL 767.76 provides in relevant part as follows:
No . . . conviction be set aside or reversed on account of any defect in form
or substance of the indictment, unless the objection to such indictment, specifically
stating the defect claimed, be made prior to the commencement of the trial or at
such time thereafter as the court shall in its discretion permit. The court may at any
time before, during or after the trial amend the indictment in respect to any defect,
imperfection or omission in form or substance or of any variance with the evidence.
If any amendment be made to the substance of the indictment or to cure a variance
between the indictment and the proof, the accused shall on his motion be entitled
to a discharge of the jury, if a jury has been impaneled and to a reasonable
continuance of the cause unless it shall clearly appear from the whole proceedings
that he has not been misled or prejudiced by the defect or variance in respect to
which the amendment is made.
* * *
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No action of the court in refusing a continuance or postponement under this section
shall be reviewable except after motion to and refusal by the trial court to grant a
new trial therefor and no writ of error or other appeal based upon such action of the
court shall be sustained, nor reversal had, unless from consideration of the whole
proceedings, the reviewing court shall find that the accused was prejudiced in his
defense or that a failure of justice resulted.
MCR 6.112(H) similarly in relevant part provides:
The court before, during, or after trial may permit the prosecutor to amend
the information or the notice of intent to seek enhanced sentence unless the
proposed amendment would unfairly surprise or prejudice the defendant.
In this case, the prosecution filed the amended information on July 30, 2019, giving
defendant felony-firearm second offense notice indicating that the prosecution intended to seek
imposition of an enhanced sentence upon his conviction of felony-firearm in this case.
Defendant’s trial commenced in October 2019 and at no time before, during, or after trial, did
defendant object to the felony-firearm second offense notice. Defendant could not reasonably
object to the notice because he did not, nor could he, contest that he had a prior felony-firearm
conviction.
In People v Eason, 435 Mich 228, 232; 458 NW2d 17 (1990), our Supreme Court clarified
that the “sentence enhancement provision is a legislative authorization for judges to tailor
punishment to the criminal on the basis of an objective factor, i.e., a prior conviction under the
same statute.” In People v Williams, 215 Mich App 234, 234-236; 544 NW2d 480 (1996), this
Court held that the defendant was not denied due process when charged and convicted of felony-
firearm, MCL 750.227b, but sentenced as a second-time felony-firearm offender, MCL
750.227b(1). The trial court, therefore, did not abuse its discretion in this case by permitting the
prosecution to amend the information to include the felony-firearm second offense notice.
Defendant’s claim of error fails as a matter of law.
Defendant’s ineffective assistance of counsel claim also fails because defense counsel had
no obligation to make a futile objection. Failure to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel. Ericksen, 288 Mich App at 205.
I. VERDICT FORM
Defendant argues that the verdict form the trial court provided to the jury deprived
defendant of his constitutional right to a jury trial by not giving the jury an opportunity to return a
verdict of not guilty.
An issue with a jury verdict form is considered an error in jury instructions. People v
Garcia, 448 Mich 442, 483-484; 531 NW2d 683 (1995). This Court reviews de novo claims of
instructional error. People v Wade, 283 Mich App 462, 464; 771 NW2d 447 (2009). Issues for
appeal, however, must be preserved by an objection made in the record. Carter, 462 Mich at 214.
Unpreserved claims of error may be reviewed for plain error. Id. “One who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error.” Id. at 215 (quotation marks and citation omitted). A defendant
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waives an error if he “affirmatively approve[s]” of an issue before the trial court, only to later
argue that there was error on appeal. People v Jackson (On Reconsideration), 313 Mich App 409,
420; 884 NW2d 297 (2015). “When defense counsel clearly expresses satisfaction with a trial
court’s decision, counsel’s actions will be deemed to constitute a waiver.” People v Kowalski, 489
Mich 488, 503; 803 NW2d 200 (2011). In this case, defendant did not object to the verdict form
and in fact his counsel approved it and the jury instructions as given.
This Court, however, may review a defendant’s unpreserved constitutional claims for plain
error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Under the plain error rule, defendant bears the burden to prove: 1) an error occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights, i.e., prejudiced
defendant by affecting the outcome of the proceedings. Id. at 763 (citation omitted). If defendant
satisfies these three requirements, this Court “must exercise its discretion in deciding whether to
reverse. Reversal is warranted only when the plain, forfeited 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, alteration, and citation omitted).
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” Armstrong, 490 Mich at 289. This Court’s review of unpreserved claims of
ineffective assistance, however, is limited to errors apparent on the record. Seals, 285 Mich App
at 19-20.
An issue with a jury verdict form is considered an error in jury instructions. Garcia, 448
Mich at 483-484. This Court reviews jury instructions in their entirety to determine if error
requiring reversal occurred. Aldrich, 246 Mich App at 124. “The instructions must not be
extracted piecemeal to establish error.” Id. (quotation marks omitted). “A criminal defendant is
entitled to have a properly instructed jury consider the evidence against him.” People v
Hawthorne, 474 Mich 174, 182; 713 NW2d 724 (2006) (quotation marks and citation omitted).
“Even if the instructions are somewhat imperfect, reversal is not required as long as they fairly
presented the issues to be tried and sufficiently protected the defendant’s rights.” Aldrich, 246
Mich App at 124. “Further, a criminal defendant is deprived of his constitutional right to a jury
trial when the jury is not given the opportunity to return a general verdict of not guilty.” Wade,
283 Mich App at 467.
In Wade, this Court considered the defendant’s claim that the jury verdict form deprived
him of his constitutional right to trial by jury because the form stated:
POSSIBLE VERDICTS
YOU MAY RETURN ONLY ONE VERDICT FOR EACH COUNT.
COUNT 1-HOMICIDE-MURDER FIRST DEGREE-PREMEDITATED
(EDWARD BROWDER, JR)
__ NOT GUILTY
__ GUILTY
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OR
__ GUILTY OF THE LESSER OFFENSE OF-HOMICIDE-MURDER SECOND
DEGREE (EDWARD BROWDER, JR.)
OR
__ GUILTY OF THE LESSER OFFENSE OF-INVOLUNTARY
MANSLAUGHTER-FIREARM INTENTIONALLY AIMED (EDWARD
BROWDER, JR.) [Id. at 465.]
Defense counsel had objected before the trial court gave the form to the jury on the ground:
that it did not comply with the standard jury form because the jury was not given
the option of finding defendant generally not guilty or not guilty of the lesser-
included offenses. The trial court disagreed. The next day, defense counsel again
raised the issue, and the trial court again disagreed. [Id. at 464.]
The trial court instructed the jury in Wade on the use the form and later reinstructed the jury in an
attempt to clarify the process the jury should follow respecting the defendant’s first-degree
premeditated murder charge. Id. at 465-466. After deliberating, the jury returned a verdict of
guilty of involuntary manslaughter. Id. at 466. When asked by the court clerk regarding the jury’s
verdict, the record indicated that the jury had experienced some confusion regarding the use of the
verdict form despite the trial court’s instructions. Id. at 466-467. The defendant moved to set
aside the verdict and also for judgment notwithstanding the verdict but the trial court denied the
motion on the ground “that the verdict form in this case was ‘self-explanatory’ and provided the
jury with the appropriate options.” Id. at 467.
On appeal, the defendant argued that the trial court erred by presenting and permitting the
jury to use an improper verdict form. This Court agreed and concluded that:
the verdict form was defective, requiring reversal, because it did not give the jury
the opportunity to return a general verdict of not guilty. We note that the verdict
form would not have been defective if it had included a box through which the jury
could have found defendant not guilty of second-degree murder and not guilty of
involuntary manslaughter. Despite the trial court’s efforts to clarify the verdict
form with its instructions, because of the way the verdict form was set up, the jury
was not given the opportunity to find defendant either generally not guilty or not
guilty of the lesser-included offenses such that his constitutional right to a trial by
jury was violated. Accordingly, we reverse defendant’s conviction and remand this
case for a new trial. [Id. at 468.]
In this case, preceding the trial court’s instruction regarding the elements of the charged
offenses, the elements of the lesser included offenses, and self-defense, the trial court instructed
the jury as follows:
The Defendant is charged with six counts. That is with the crimes of
homicide, murder first degree premeditated; motor vehicle, unlawfully driving
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away; weapons firearms, possession by a felon; and three counts of weapons felony
firearm. These are separate crimes and the prosecutor is charging that the
Defendant committed all of them. You must consider each crime separately in light
of all the evidence in the case. You may find the Defendant guilty of all, or any
one or any combination of these crimes, guilty of a less serious crime or not guilty.
* * *
I have prepared a verdict form listing the possible verdicts. You’ll see all
six counts. It’s two pages. There is a line for the foreperson to sign and date.
As to Count One, the murder first degree premeditated count you have four
options: not guilty, guilty of murder first degree premeditated, guilty of the lesser
offense second degree murder, guilty of the lesser offense manslaughter.
Are the attorneys satisfied with the reading of the instructions?
[Prosecution]: People are satisfied, you Honor.
[Defense counsel]: Satisfied on behalf of defense, Judge.
The trial court provided the jury the verdict form which stated the following options for Count
One: Murder First Degree-Premeditated:
POSSIBLE VERDICTS:
You may return only one verdict on each count. Mark only one box for each count.
COUNT ONE: MURDER FIRST DEGREE-PREMEDITATED
Not Guilty
OR
Guilty of MURDER FIRST DEGREE – PREMEDITATED
OR
Guilty of the Lesser Offense of: SECOND DEGREE MURDER
OR
Guilty of the Lesser Offense of: MANSLAUGHTER
The record does not reflect that the jury had any questions about their instructions or the verdict
form.
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In a recent case similar to the case at bar, People v Jones, unpublished opinion of the Court
of Appeals, issued January 27, 2022 (Docket No. 351881) (application for leave pending) 7 in
which the defendant relied on Wade and claimed deprivation of his constitutional right to a jury
trial because of the verdict form used, this Court analyzed the following verdict form which stated:
You may return only one verdict on each count. Mark only one box for each count.
Count One: Homicide – Murder First Degree – Premeditated
Not Guilty
Guilty of Homicide – Murder First Degree – Premeditated
Guilty of the lesser offense of Second Degree Murder
Guilty of Voluntary Manslaughter [Unpub op at 3.]
This Court concluded:
Contrary to what defendant asserts, the verdict form specifically gave the
jury the option to select a general “Not Guilty” verdict for the first-degree
premeditated murder charge. Similarly, the trial court instructed the jury that one
of the available options for the first-degree premeditated murder charge was a
verdict of “not guilty” and to “return only one verdict on each count.” Because the
record clearly establishes that the jury was given the opportunity to return a general
verdict of not guilty, defendant’s unpreserved challenge to the jury verdict form is
without merit and does not warrant relief. [Id.]
In another similar case, People v McNeal, unpublished opinion of the Court of Appeals,
issued June 17, 2021 (Docket No. 351900), lv den 508 Mich 969 (2021), this Court considered
whether a verdict form similar to the case at bar had the defects described in Wade requiring
reversal. This Court explained:
Unlike the verdict form in Wade, the verdict form in this matter did not
present the not-guilty option only with the most serious form of homicide. The
verdict form used in this matter provided:
You may return only one verdict on each charge. Mark only one
box in each section of this sheet.
COUNT ONE: FIRST DEGREE PREMEDITATED MURDER.
Not Guilty.
7
Unpublished opinions of the Court of Appeals are not binding upon this Court, but may be
persuasive. People v Daniels, 311 Mich App 257, 268 n 4; 847 NW2d 732 (2015).
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Guilty of First-Degree Premediated Murder.
☒ Guilty of the less serious crime of Second-Degree Murder.
Guilty of the lesser included offense of Voluntary Manslaughter.
As can be seen above, the not-guilty option for the homicide charge in this case
provides exactly what Wade demands, an option whereby this jury could have
returned not guilty for the entire homicide charge. Therefore, defendant presents
no error requiring reversal.” [Unpub op at 2-3.]
In People v Glenn, unpublished opinion of the Court of Appeals, issued July 2, 2020
(Docket No. 341721), lv den 508 Mich 958 (2021), this Court considered whether the following
verdict form contained defects as described in Wade. This Court’s opinion provided a photocopy
that depicted the verdict form which instructed the jurors:
(CHOOSE ONLY ONE)
Count 1 Criminal Sexual Conduct
___ Not Guilty
Or:
___ Guilty of Criminal Sexual Conduct in the First-Degree . . . .
Or the lesser offense:
___ Guilty of Criminal Sexual Conduct in the Third-Degree . . . . [Unpub op at 3.]
The verdict form went on to similarly state the options for Count 2 Criminal Sexual Conduct. Id.This Court distinguished the structure of the verdict form from that used in Wade. Id. This Court
explained:
In contrast, the form here first clearly gave the jury three options: (1)
defendant was not guilty, (2) defendant was guilty of the listed offense, or (3)
defendant was guilty of the lesser-included offense. The form clearly indicates that
jurors are to “CHOOSE ONLY ONE” of these options. Looking at the form, no
reasonable juror could believe that they did not have the option to return a general
not guilty verdict, so defendant’s argument otherwise is without merit. And
because the argument is without merit, defense counsel cannot be found ineffective
for not objecting to the verdict form. See People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a
futile objection does not constitute ineffective assistance of counsel.”). [Unpub op
at 4.]
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Notably, Glenn reveals that the use of the disjunctive word “or” in the verdict form did not render
the verdict form defective. It also indicates that defense counsel did not provide ineffective
assistance by not objecting to the verdict form.
Other recent cases have held that similar verdict forms are not defective. See People v
Jaber, unpublished opinion of the Court of Appeals, issued March 11, 2021 (Docket No. 352092)
(application for leave pending); People v Pickens, unpublished opinion of the Court of Appeals,
issued September 24, 2020 (Docket No. 346072), in lieu of granting leave remanded for correction
of the judgment of sentence on other grounds, 507 Mich 929 (2021).
Analysis of the jury instructions and the verdict form in this case reveals that the trial court
properly instructed the jury to choose only one verdict option for each charged offense. Further,
examination of the verdict form makes clear that, only after the jury rejected the option of a general
not guilty verdict, it proceeded to determine whether defendant was guilty of first-degree
premeditated murder, or guilty of the lesser offense of second-degree murder, or guilty of the lesser
offense of manslaughter. It is well established that jurors are presumed to follow their instructions.
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). The record reflects that the trial
court provided the jury the option to enter a general not guilty verdict. The jury could have
returned not guilty for the entire homicide charge. Accordingly, the trial court did not err.
Moreover, had trial counsel raised an objection to the jury verdict form, such objection
would have been futile, given that the jury verdict form did not violate defendant’s right to have
the jury presented with the opportunity to return a general verdict of not guilty. Defense counsel
had no obligation to raise a futile objection or argue a meritless legal position. Ericksen, 288 Mich
App at 201. Therefore, defense counsel was not ineffective for failing to object to the jury verdict
form.
J. INEFFECTIVE ASSISTANCE RELATED TO MANDATORY SENTENCE
Defendant argues that defense counsel provided ineffective assistance by failing to
adequately explain that the fourth-offense habitual offender notice would apply if the jury found
defendant guilty of any other lesser offense. We disagree.
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” Armstrong, 490 Mich at 289. Because defendant did not preserve this claim
of error, this Court’s review is limited to errors apparent on the record. Seals, 285 Mich App at 19-
20.
To prevail on an ineffective assistance of counsel claim, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” Trakhtenberg, 493 Mich at 51 (citations omitted). “In addition to proving that defense
counsel’s representation was constitutionally deficient, defendant must show that but for counsel’s
deficient performance, a different result would have been reasonably probable.” Id. at 55-56
(quotation marks and citations omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Carbin, 463 Mich at 600 (quotation marks and citation
omitted). Defendant must overcome a strong presumption that trial counsel provided effective
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assistance. Seals, 285 Mich App at 17. “This Court does not second-guess counsel on matters of
trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.” Russell, 297
Mich App at 716 (citation omitted).
A defendant has the right to consult with his attorney at critical stages in criminal
proceedings. See generally, Hieu Van Hoang, 328 Mich App at 59. In Frazier, 478 Mich at 246,
our Supreme Court noted that the United States Supreme Court “stated that when an attorney
consults with his client about the consequences of his client’s decision, the attorney’s performance
can be considered deficient under the first prong of Strickland only if the attorney fails to follow
his client’s express instructions.”
In his motion for a new trial, defendant conceded that the prosecution served defendant a
fourth-offense habitual offender notice that set forth the mandatory minimum sentence the trial
court would impose upon defendant if convicted of another felony in this case. The record reflects
that the complaint, the original felony information, and the amended felony information, all
provided defendant notice of the potential for the imposition of the 25-year mandatory minimum
under MCL 769.12 if convicted of a felony in this case.
Defendant asserts that his trial counsel and the court failed to inform him adequately
regarding the mandatory minimum but does not elaborate as to what more they should have done
to inform him. Nor does defendant explain how, under the circumstances of his criminal history
and the serious offense committed, he did not understand the consequences if convicted of another
felony in this case. No mistakes are apparent in this record.
Even if this Court concludes that defense counsel performed below an objective standard
of reasonableness by not explaining that a conviction of the lesser offense of manslaughter would
result in imposition of the 25-year mandatory minimum sentence, defendant, nevertheless, must
establish that, but for defense counsel’s defective performance, “there is a reasonable probability
that the outcome would have been different.” Trakhtenberg, 493 Mich at 55-56 (quotation marks
and citations omitted). He has failed and cannot do so. Accordingly, defendant is not entitled to
relief.
Defendant has failed to establish that his trial counsel provided ineffective assistance.
There are no errors apparent in the record. Moreover, even if defendant’s trial counsel’s
performance fell below an objective standard of reasonableness, defendant has failed and cannot
establish that, but for his counsel’s performance, there is a reasonable probability that the outcome
would have been different. Defendant, therefore, is not entitled to any relief.
Affirmed as to convictions and sentence.
/s/ David H. Sawyer
/s/ Douglas B. Shapiro
/s/ James Robert Redford
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