People of Michigan v. Antwan Tamon Mims

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 22, 2020
Plaintiff-Appellee,

v No. 348311
Berrien Circuit Court
ANTWAN TAMON MIMS, LC No. 2018-001197-FC

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and MARKEY and BORRELLO, JJ.

PER CURIAM.

In this case arising from the shooting deaths of Michael Johnson and Cortez Miller,
defendant, Antwan Tamon Mims, appeals by right his jury convictions of two counts of first-
degree premeditated murder, MCL 750.316(1)(a); two counts of carrying or possessing a firearm
during the commission of a felony (felony-firearm), MCL 750.227b(1); and carrying or possessing
a firearm when ineligible to do so (felon-in-possession), MCL 750.224f. The trial court sentenced
Mims as a fourth offense habitual offender, MCL 769.12, to serve two years in prison for each
felony-firearm conviction, followed by concurrent sentences of life in prison without the
possibility of parole for each murder conviction and 76 months to 240 months in prison for his
felon-in-possession conviction. For the reasons set forth in this opinion, we affirm defendant’s
convictions and sentences.

I. BACKGROUND

The shooting deaths of Miller and Johnson occurred in the early morning hours on
March 25, 2018, at a home located at 996 Lavette in Benton Harbor, Michigan. Benton Harbor
High School had won the state basketball championship the night before, and many people were
celebrating inside 996 Lavette, in the home’s yard, and along the street. Officers who had earlier
responded to a large party down the street were nearby when the shooting occurred, but had to run
rather than drive to the scene of the shooting because of the congested traffic.

At trial, evidence was introduced that Johnson and Miller went to 996 Lavette and
socialized with others shortly before 3:00 a.m. in the morning. There was testimony that Mims
ran up to Johnson as he was leaving the home and shot him in the back of the head. After Johnson

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fell to the bottom of the steps leading into the house, Mims stood over Johnson and again shot him
in the head. Mims then turned to Miller, who—testimony showed—was already outside when the
shooting began. Mims shot Miller twice in the back: once through his arm and once through his
torso. Mims also fired a shot into Miller’s head. After shooting both men, Mims walked through
the crowd and went home. He then fled the state and was apprehended some months later in
Georgia.

At trial, Mims testified on his own behalf. He claimed that Johnson and Miller had been
harassing him for weeks and that he feared they might harm him when they showed up at 996
Lavette. According to Mims, both Johnson and Miller were armed. He stated that Miller started
the altercation when he drew a weapon and fired at Mims. Mims claimed that he returned fire in
self-defense. According to Mims’s version of events, Johnson and Miller essentially trapped him
at the party. There was conflicting testimony as to whether Johnson and Miller had a reputation
for being armed, and there was some suggestion that guns may have been removed from their
bodies after the shooting by witnesses.

Mims testimony was rebutted by the prosecutor who presented evidence suggesting that
neither Johnson nor Miller were armed on the night at issue. Investigators testified there was no
physical evidence that Johnson or Miller fired any shots in the home. The investigators, however,
did find five shell casings that were associated with the five shots that Mims admitted to firing.
There were also witnesses whose testimonies suggested that Mims was not provoked.

After the close of all the proofs, the jury rejected Mims’s claim of self-defense and found
him guilty as charged. Mims now raises several claims of error on appeals in this Court.

II. SHACKLING

A. STANDARDS OF REVIEW

We first address Mims’s claim that the trial court deprived him of a fair trial when it granted
the sheriff’s request to have him shackled during trial. This Court reviews a trial court’s decision
whether to shackle a defendant for an abuse of discretion. See People v Payne, 285 Mich App
181, 186; 774 NW2d 714 (2009). A trial court abuses its discretion when its decision falls outside
the range of reasonable and principled outcomes. People v Rose, 289 Mich App 499, 524; 808
NW2d 301 (2010).

B. ANALYSIS

Every defendant has a due-process right to be presumed innocent, which requires that the
jury determine guilt “solely on the basis of the evidence introduced at trial rather than on official
suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.”
Id. at 517 (quotation marks and citation omitted). Because visible shackles might have a
significant effect on the jury, a defendant generally has the right to appear at trial without restraints.
See Illinois v Allen, 397 US 337, 344; 90 S Ct 1057; 25 L Ed 2d 353 (1970). Nevertheless, it is
“well-established in this and other jurisdictions that a defendant may be shackled . . . on a finding
supported by record evidence that this is necessary to prevent escape, injury to persons in the
courtroom or to maintain order.” People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994).

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 On the first day of trial, the trial court held a hearing on the sheriff’s request to have Mims
shackled during trial. Detective Lieutenant Gregory Sanders testified at the hearing and noted
Mims’s extensive criminal history, which included a conviction of felony assault with a dangerous
weapon. Federal officers also arrested Mims for possessing cocaine and a firearm; Mims pleaded
guilty to a charge and served 11 years in prison. He was released in February 2016 and was still
on supervised release when he committed the offenses at issue.

Detective Sanders reminded the court that Mims fled the state and took extreme measures
to avoid apprehension. He stated that they were also concerned because of an incident at the jail.
He stated that while Mims was being prepared for transport he came into contact with a witness
who was to testify at his trial and repeatedly told the other inmate “to do the right thing.” Detective
Sanders took that to mean that Mims was telling the witness not to cooperate. He also described
an incident when an inmate passed a note to a victim’s father, Brian Miller, in which it was written
that Mims wanted Brian to lie. It appeared to Detective Sanders that Mims was trying to influence
people who had been subpoenaed to testify against him. Detective Sanders also opined that the
factors which the department considers when assessing risk during apprehension would place
Mims at a “very high” risk. The department had Mims housed by himself because of the nature
of the offense, Mims’s history of violence, and the extremes taken to elude arrest. The department
also ordered that Mims be handcuffed or shackled at all times when not in a cell. For that reason,
if the court did not shackle Mims, he stated that the department would assign more deputies to the
courtroom.

After hearing the evidence, the trial court determined that it would be appropriate to shackle
Mims’s legs during trial. The court recognized that Mims was on trial for two very serious offenses
and that he had been convicted of two previous assaultive crimes. He also had a conviction of
fleeing and eluding, which—along with the assaultive crimes—was the “most relevant,” and he
was still on supervised release when he shot and killed Johnson and Miller. The court further
recalled that Mims had become clearly agitated at one hearing, although he had not repeated that
behavior since, and he had tried to influence at least one witness. The court indicated that it was
considering the fact that Mims fled and appeared to be a strong man.

In making its decision, the court stated that it did not find sufficient basis to have Mims
visibly shackled. But it did determine that it would be appropriate to have Mims shackled by his
feet. The court explained that the defendant’s table was completely wood, so the shackles would
not be visible to the jury during trial, and the jury would be excused before Mims would be moved.
The court found that this compromise reduced the need for additional deputies in the courtroom,
and it felt that the potential negative effects of shackling would not be “worse than having even
more deputies circling around him in the course of this trial.” Accordingly, the trial court found
that the limited use of shackles was appropriate to prevent escape, to prevent problems in the
courtroom, and to ensure an orderly trial.

In reaching its decision, the trial court relied on the record evidence showing that Mims
had a significant criminal record, which included convictions involving physical violence, and
fleeing and eluding. The record also showed that Mims had immediately fled after shooting
Johnson and Miller, and took measures to avoid apprehension. The nature of the crimes at issue
were also very serious. Under the prosecution’s theory of the case, Mims executed two people for
no apparent reason and did so in front of numerous witnesses; Mims further did so while on

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supervised release from federal prison and while ineligible to possess a firearm. The trial court
also witnessed Mims engage in an incident in court and heard evidence that Mims had to tried to
influence other witnesses. This evidence established a plausible basis for concluding that Mims
posed a flight risk or might be disruptive in court. The trial court reasonably balanced that risk
against Mims’s right to be free of shackles and determined that the best course of action was to
use leg restraints, which would not be visible to the jury. Accordingly, the trial court’s exercise of
discretion fell within the range of reasonable and principled outcomes. See Rose, 289 Mich App
at 524.

Even assuming that the trial court abused its discretion by ordering Mims to be shackled,
the trial court’s decision would not warrant any relief. Mims had the burden to demonstrate that
the trial court’s decision prejudiced his trial. When the jury is unable to see the restraints, there is
ordinarily no prejudice. See Payne, 285 Mich at 186. The trial court noted that the defendant’s
table fully concealed the leg restraints; moreover, the trial court had the shackles removed
throughout Mims’s testimony because there was no way to conceal them at the witness stand.
Because there was no evidence that the jury ever saw the shackles, and Mims has not otherwise
identified any prejudice that he might have suffered as a result of the restraints, we reject Mims’s
claim that the trial court’s decision warrants a new trial. See id.

III. SUPPRESSION OF STATEMENT ON AIRPLANE

A. STANDARDS OF REVIEW

Mims’s next argues that the trial court erred when it denied his motion to suppress the
statements that he made to officers on the airplane ride back to Michigan after his apprehension.
He claims that he did not knowingly and intelligently waive his right to remain silent.
Additionally, in a brief that he submitted on his own behalf, Mims argues that he invoked his right
to counsel and, for that reason, the officers should have ceased questioning him.

This Court reviews for clear error a trial court’s factual findings in a ruling
on a motion to suppress evidence. A trial court’s factual findings are clearly
erroneous when this Court is left with a definite and firm conviction that the trial
court made a mistake. The decision whether to admit evidence is within a trial
court’s discretion. This Court reverses it only where there has been an abuse of
discretion. A trial court abuses its discretion when it selects an outcome that falls
outside the range of reasonable and principled outcomes. To the extent that a trial
court’s ruling on a motion to suppress involves an interpretation of the law or the
application of a constitutional standard to uncontested facts, our review is de novo.
[People v Clark, 330 Mich App 392, 415; 948 NW2d 604 (2019) (quotation marks
and citation omitted).]

B. ANALYSIS

To protect a defendant’s right to remain silent, an officer must inform the defendant in clear
and unequivocal terms that he or she has the right to remain silent and that anything he or she says
can be used against him or her in court. Id. The officer must also advise the defendant that he or
she has the right to have a lawyer present during the interrogation and that one will be appointed

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for him or her if he or she cannot afford a lawyer. Id. at 415-416. A statement can only be admitted
against a defendant at trial if the interrogating officers provided the required warnings and the
defendant voluntarily, knowingly, and intelligently waived his or her rights. Id. at 416.
Additionally, a defendant’s assertion of the right to counsel is a per se invocation of the right to
remain silent. Id. As such, once a defendant asserts the right to counsel, any interrogation must
cease until counsel has been made available to the defendant. Id. The prosecution bears the burden
to demonstrate by a preponderance of the evidence that the defendant’s waiver of the right to
remain silent was valid. See People v Daoud, 462 Mich 621, 634; 614 NW2d 152 (2000).

After Mims was apprehended in Georgia, he was flown back to Michigan in a small plane.
One of the law enforcement officers on the flight to Michigan with Mims, Detective Sergeant
Michael Sites, testified that he had an informal conversation with Mims for the first hour of the
flight. He stated that he eventually told Mims that he wanted to talk about the night in question
and Mims responded by stating, “ ‘Well, you know, my attorney told me not to talk to you.’ ”
Detective Sites said that he told Mims that he understood, and Mims then proceeded to say
something to the “effect” that he wanted to get his “side out.” Detective Sites agreed, but said that
he needed to “read you this first and then we can go from there.” He then read Mims his rights
from a card. Mims told him that he understood and signed the card. The prosecutor then played
a portion of the recording made during the flight that included the advice of rights.

The recording was difficult to hear because of the noise from the small airplane’s engines.
Nevertheless, one can hear Detective Sites read Mims his rights over the noise of the airplane’s
engine. One can also faintly hear Mims agree that he understood his rights when Detective Sites
asked him if did. One can also hear Detective Sites ask Mims to acknowledge his rights by signing
where he made the “x” on the card.

Detective Sites testified that Mims at no point stated that he did not want to talk or that he
wanted a lawyer. Mims also never asked Detective Sites to stop talking. Instead, Mims made it
clear that he wanted the officers to know his side of the story.

Mims, by contrast, testified that he mentioned that his lawyer told him not to speak to them
after Detective Sites handed him the card with his rights on it. Mims stated that he read the card
and signed it, but he said that because of the airplane engine noise, he did not hear a word that
Detective Sites said. He also denied that Detective Sites asked him if he understood his rights as
he had read them—he said Detective Sites merely asked whether he understood the rights that
were printed on the card. He stated that Detective Sites never asked him if he waived those rights.
Mims felt that his signature was just an acknowledgment that he understood the rights listed on
the card and was not a waiver of his right to remain silent.

At the close of proofs, the trial court stated it heard Detective Sites read Mims his rights
on the recording and heard Mims say, “yeah,” when Detective Sites asked Mims if he understood
those rights. The trial court also noted that Mims admitted that he read the card and signed it. On
the basis of the testimony and evidence, the trial court found that Detective Sites informed Mims
of his rights and that Mims knowingly and voluntarily waived his rights. The trial court stated that
Mims repeatedly asserted in the video that he wanted to get his story out, and that was what he
did. The trial court also remarked that the statement that Mims made about his attorney was not
an expression that he did not want to speak with the officers; rather, it was the opposite. The court

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determined that it was “completely appropriate” for the officer to continue questioning Mims at
that point. For those reasons, it denied the motion to suppress.

Although Mims and Detective Sites differed as to when Mims mentioned that a lawyer had
advised him not to speak to the officers, whether he made that comment before or after he was
advised of his rights was immaterial. A request for a lawyer must be unequivocal. Davis v United
States, 512 US 452, 457; 114 S Ct 2350; 129 L Ed 2d 362 (1994). "[I]f a suspect makes a reference
to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking the right to counsel,
our precedents do not require the cessation of questioning." Id. at 459, as quoted in People v
Tierney, 266 Mich App 687, 711; 703 NW2d 204 (2005). Here, the record reveals that Mims did
not make an unequivocal demand for a lawyer. Mims’s statement about the advice that he had
been given not only gave rise to an inference that Mims wanted to speak with the officers without
a lawyer, it was also evidence that he understood the full import of what he was doing when he
chose to speak with Detective Sites. See Clark, 330 Mich App at 415-416. As such, the trial court
did not err when it determined that Mims did not unequivocally assert his right to counsel and that
it was appropriate for Detective Sites to continue questioning Mims. See Tierney, 266 Mich App
at 711.

The trial court also did not clearly err when it found that Detective Sites read Mims his
rights and inquired whether Mims understood those rights. See Clark, 330 Mich App at 415-416.
Detective Sites testified that he read Mims his rights and that Mims agreed that he understood
them. The audio recording—although inaudible for much of the interview—captured Detective
Sites’s recitation of Mims’s rights and appears to capture Mims affirming that he understood.
Indeed, Mims has conceded that Detective Sites read him his rights and that he voluntarily chose
to speak with the detective; he merely suggests that he did not fully appreciate the import of his
decision. Examining the record as a whole, Mims’s claim that he did not hear Detective Sites and
did not understand what he was doing is not persuasive. A defendant can waive his or her right to
remain silent without understanding the ramifications and consequences of choosing to waive the
rights that the officer otherwise properly explained. See Daoud, 462 Mich at 636. The record
evidence supported the trial court’s finding that Mims chose to waive his right to remain silent and
that his decision was knowingly, intelligently, and voluntarily made. See Clark, 330 Mich App
at 416.

On this record, we conclude that the trial court’s findings were not clearly erroneous and
the trial court did not abuse its discretion when it denied Mims’s motion to suppress the statements
that he made on the flight back to Michigan. See id. at 415-416.

IV. SUPPRESS VIDEO OF STATEMENT

A. STANDARDS OF REVIEW

We next address Mims’s argument that the trial court erred when it allowed the jury to see
the video of the statement that he made at the jail after his return from Georgia. He claims that the
trial court should only have played the audio because the video depicted him with handcuffs and
a belly chain. Although Mims challenged the admission of the video, he did not specifically
challenge the admission on constitutional grounds, and the trial court decided the matter under the

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rules of evidence. Therefore, he has not properly preserved this claim of error to the extent that it
involves a constitutional challenge. See People v Aldrich, 246 Mich App 101, 116; 631 NW2d 67
(2001).

This Court reviews de novo whether the trial court properly applied constitutional law. See
Rose, 289 Mich App at 505. This Court also reviews de novo whether the trial court properly
interpreted and applied the rules of evidence. See People v McFarlane, 325 Mich App 507, 517;
926 NW2d 339 (2018). This Court reviews a trial court’s evidentiary decision for an abuse of
discretion. People v Yost, 278 Mich App 341, 353;749 NW2d 753 (2008). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes. Id.
Because Mims’s constitutional claim of error is unpreserved, this Court’s review is limited to
determining whether the admission of the video amounted to plain error that violated Mims’s
substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To avoid
forfeiture under the plain error test, Mims must show that the trial court erred, that the error was
plain or obvious, and that the error affected the outcome of the lower court proceeding. See id.

Otherwise relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice.” MRE 403; see also People v Roper, 286 Mich App
77, 106; 777 NW2d 483 (2009).

B. ANALYSIS

Mims concedes on appeal that the video was relevant and would otherwise be admissible
were it not for the fact that he appeared in handcuffs. See MRE 401 (defining relevant evidence
to be “evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence”); MRE 402 (providing that relevant evidence is generally admissible). Nevertheless, he
maintains that the prejudice occasioned by his depiction in handcuffs outweighed the probative
value of the video. See MRE 403. For that reason, he maintains the trial court should have limited
the evidence to the audio alone.

The video at issue was relatively brief—less than 15 minutes—and Mims appeared relaxed
and agreeable throughout. The officer treated Mims with respect, and they spoke in conversational
tones. The jury could clearly see that Mims had been handcuffed to a belly chain, which implicated
official suspicion, but the jury was well aware that it was not by “ ‘choice or happenstance’ ” that
Mims was present in the interrogation room. See Rose, 289 Mich App at 517, quoting Holbrook
v Flynn, 475 US 560, 567; 106 S Ct 1340; 89 L Ed 2d 525 (1986). Moreover, the prejudicial effect
was mitigated in several ways: the appearance was on video, not in person; Mims appeared before
the jury throughout the lengthy trial without any visible restraints, which included his live
testimony; and the jury might make reasonable inferences about the use of restraints at that time
that did not implicate the presumption of innocence. See Gates v Zant, 863 F2d 1492, 1502
(CA 11, 1989) (stating that the video did not tend to negate the presumption of innocence because
the image was on a screen rather than in person, the jury might infer that it was standard procedure
under the circumstances rather than drawing impermissible inferences, and the defendant appeared

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without restraints throughout the trial).1 The trial court further limited any prejudice by instructing
the jury that it must decide guilt on the basis of evidence and not “sympathy or prejudice”, and
that it must begin “with the presumption that the defendant is innocent. See People v Mahone,
294 Mich App 208, 212; 816 NW2d 436 (2011) (“Jurors are presumed to follow their instructions,
and it is presumed that instructions cure most errors.”); see also Roper, 286 Mich App at 106
(holding that a jury instruction adequately safeguarded the defendant’s rights).

Moreover, the video was highly probative of Mims’s intent and was useful for evaluating
his claim that he acted in self-defense. Although the trial court focused on whether Mims
demonstrated a crawling motion during the interview because the disparity in that description was
at issue during the preliminary examination, a review of the video shows that Mims used body
language, gestures, and even positioned himself in the interrogation room in ways that clarified his
description of events. In some instances, his gestures and positioning lent considerable gravity to
his statements. Mims’s audible description of the events was also not particularly articulate, and
his body language and motions were helpful in providing context.

When the probative value of the evidence is considered against the danger that the jury
might have used it for an improper purpose, it cannot be said that the danger of unfair prejudice
substantially outweighed the evidence’s probative value for a proper purpose under MRE 403. See
People v Mardlin, 487 Mich 609, 627; 790 NW2d 607 (2010) (stating that the danger of unfair
prejudice must be determined by weighing the value of the evidence for a proper purpose against
the danger that the jury might consider an improper purpose). Under these circumstances, the trial
court did not abuse its discretion when it determined that the video was admissible despite the
danger. See Yost, 278 Mich App at 353.

Mims also maintains that the video was inherently prejudicial because he appeared in
restraints. As previously discussed, it is generally improper to have a criminal defendant appear
at trial in visible restraints. See Rose, 289 Mich App at 517-518. However, the claim at issue does
not involve Mims’s appearance at trial—it involves his depiction in a short video while wearing
handcuffs. Although the Supreme Court of the United States has held that it can be a violation of
due process to have a defendant appear in shackles, it has framed that constitutional limitation as
one involving the defendant’s appearance at trial. For example, the Court has held that, when
otherwise unjustified, the use of visible restraints at trial violates due process because it
undermines the presumption of innocence. See Deck v Missouri, 544 US 622, 631; 125 S Ct 2007;
161 L Ed 2d 953 (2005). The use of restraints also interferes with the defendant’s ability to
participate in his or her own defense at trial. Id. Finally, the use of shackles undermines the
dignity and decorum of the trial itself:

[J]udges must seek to maintain a judicial process that is a dignified process.
The courtroom’s formal dignity, which includes the respectful treatment of
defendants, reflects the importance of the matter at issue, guilt or innocence, and
the gravity with which Americans consider any deprivation of an individual’s
liberty through criminal punishment. And it reflects a seriousness of purpose that

1
Opinions of lower federal courts and foreign jurisdictions are not binding on this Court, but they
may be persuasive. See People v Patton, 325 Mich App 425, 434 n 1; 925 NW2d 901 (2018).

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 helps to explain the judicial system’s power to inspire the confidence and to affect
the behavior of a general public whose demands for justice our courts seek to serve.
The routine use of shackles in the presence of juries would undermine these
symbolic yet concrete objectives. [Id.]

The Supreme Court has reached similar conclusions with other procedures that implicate
the presumption of innocence at trial. See Holbrook, 475 US at 567-572 (concluding that the
deployment of extra deputies in the courtroom is not inherently prejudicial and holding that, when
a courtroom procedure is not inherently prejudicial, courts must determine whether the procedure
was proper on a case-by-case basis); Estelle v Williams, 425 US 501, 503-505; 96 S Ct 1691; 48
L Ed 2d 126 (1976) (discussing the requirements of due process as applied to trial practices that
might impair the presumption of innocence, such as requiring a defendant to appear in prison
attire). However, courts have not extended these precedents to conclude that evidence that includes
a depiction of a defendant in prison garb or restraints is inherently prejudicial. See, e.g., Gates,
863 F2d at 1501-1502 (treating the admission of evidence depicting the defendant in handcuffs as
though it were a brief viewing of the defendant in handcuffs at trial for purposes of determining
whether the admission prejudiced the defendant); Hosch v Alabama, 155 So 3d 1048, 1120 (Ala
App, 2013) (stating that the due process rule involving restraints has not been extended to video
evidence); Tennessee v Taylor, 240 SW3d 789, 796-797 (Tenn, 2007) (discussing authorities that
have rejected the contention that videos of the defendant in prison garb are inherently prejudicial
and corrupt the presumption of innocence).

Because the viewing of evidence depicting a defendant in prison garb or restraints does not
involve a trial practice that undermines the presumption of innocence, does not interfere with a
defendant’s ability to participate in his or her own defense, and does not implicate the decorum of
the trial itself, see Deck, 544 US at 631, the trial court cannot be said to have plainly erred by
failing to apply the precedents involving inherently prejudicial trial procedures to its determination
involving the admission of the video evidence, see Carines, 460 Mich at 763. Additionally,
whatever prejudice might have been occasioned by the depiction of Mims with handcuffs was
minimal and was not of significant duration or importance in the whole of the trial to negate the
presumption of innocence. See Gates, 863 F2d at 1502. Finally, the trial court safeguarded
Mims’s rights by instructing the jury on the presumption of innocence. See Roper, 286 Mich App
at 106. Under these circumstances, Mims has not established plain error that prejudiced his trial.
See Carines, 460 Mich at 763. Accordingly, defendant is not entitled to relief on this issue.

V. SUFFICIENCY OF THE EVIDENCE

A. STANDARDS OF REVIEW

Next, defendant argues that the prosecution failed to present sufficient evidence to prove
beyond a reasonable doubt that he premeditated the killings of Johnson and Miller. He also argues
that the prosecution failed to present sufficient evidence to overcome his claim that he acted in
self-defense.

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 This Court reviews a challenge to the sufficiency of the evidence by
examining the record evidence de novo in the light most favorable to the
prosecution to determine whether a rational trier of fact could have found that the
essential elements of the crime were proved beyond a reasonable doubt. This Court
must resolve all conflicts in the evidence in favor of the prosecution. [People v
McFarlane, 325 Mich App 507, 513; 926 NW2d 339 (2018) (quotation marks and
citations omitted).]

B. ANALYSIS

First-degree premeditated murder is second-degree murder with the added elements that it
must be done willfully, deliberately, and with premeditation. People v Carter, 395 Mich 434, 437;
236 NW2d 500 (1975); MCL 750.316(1). Willfully means that is done “with design to take the
life of the victim…” People v Potter, 5 Mich 1, 7 (1858). As such, the prosecutor may not establish
first-degree murder by presenting evidence that the defendant intended to inflict great bodily harm
or created a very high risk of death or great bodily harm and knew that death or great bodily harm
was the probable result. See People v Dykhouse, 418 Mich 488, 495; 345 NW2d 150 (1984).
Consequently, first-degree premeditated murder is the intentional killing of a human with
premeditation and deliberation. People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018).

Our Supreme Court has stated that a murder suddenly conceived after adequate provocation
cannot properly be called deliberate. People v Scott, 6 Mich 287, 294 (1859). “But whenever
murder is intentionally committed without serious provocation, and under circumstances which do
not reasonably account for such an excitement of passion as naturally deprives men of deliberation,
common experience teaches us that such an act is wanton, and its perpetrator responsible for it, as
in other cases of cold-blooded crime.” Id.; see also Oros, 502 Mich at 246, quoting People v
Holmes, 111 Mich 364, 372; 69 NW 501 (1896), quoting Scott, 6 Mich at 294. Whether an act
was deliberate is a matter of plain common sense in which a “jury can seldom be at a loss to
determine” because in most cases no “sane man acts without some cause for his action” and the
jury will be able to determine whether it was a “sudden heat or not.” Scott, 6 Mich at 294.

This Court has also discussed the proper distinction between deliberation and
premeditation within the meaning of MCL 750.316:

To premeditate is to think about beforehand; to deliberate is to measure and
evaluate the major facets of a choice or problem. As a number of courts have
pointed out, premeditation and deliberation characterize a thought process
undisturbed by hot blood. While the minimum time necessary to exercise this
process is incapable of exact determination, the interval between initial thought and
ultimate action should be long enough to afford a reasonable man time to subject
the nature of his response to a “second look.” [People v Morrin, 31 Mich App 301,
329-330; 187 NW2d 434 (1971), rejected not in relevant part by People v Reese,
491 Mich 127, 147-148; 815 NW2d 85 (2012) (stating that then Judge LEVIN’s
discussion of imperfect self-defense was obiter dictum); cf. Oros, 502 Mich at 241-
242 (citing the decision in Morrin with approval).]

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 Our Supreme Court endorsed this “second look” approach to determining the sufficiency
of the evidence for premeditation and deliberation. See People v Tilley, 405 Mich 38, 44-45; 273
NW2d 471 (1979). In Tilley, our Supreme Court agreed that, although a person who acts on sudden
impulse cannot be said to have acted deliberately, the fact that there was a short span of time to
deliberate and premeditate does not preclude a conviction of first-degree premeditated murder.
Id. at 44-45. There need only be an interval between the initial thought and ultimate action
sufficient to afford a reasonable person time to subject the nature of his or her response to a second
look. Id. at 45. If the defendant had such an opportunity, a reasonable jury could find that the
defendant acted with deliberation and premeditation. Id. at 46; see also Oros, 502 Mich at 242-
243.

Here, there was overwhelming evidence that Mims intended to kill Johnson and Miller.
Mims himself stated that he had a handgun on his person, that he drew his weapon and, according
to his version of events, he only fired after Miller first attacked him. He then fired to kill. Indeed,
he stated that he shot Johnson a second time—after Johnson had fallen and despite the fact that he
thought he had shot Johnson in the head—because he thought Johnson was still moving. Likewise,
Mims stated that he ran after Miller, whom Mims thought was trying to retrieve a gun. The
evidence showed that Mims shot Miller three times: twice from behind and once directly into his
head. The only dispute was whether Mims acted in self-defense, and, if not, whether he
premeditated the killings.

An otherwise intentional homicide may be justified when the defendant honestly and
reasonably believes that his or her life is in imminent danger, or that he or she is in danger of
serious bodily harm, and that it is necessary to exercise deadly force to prevent the harm. See
People v Riddle, 467 Mich 116, 126-127; 649 NW2d 30 (2002); see also MCL 780.972. Once a
defendant presents some evidence that he or she acted in self-defense, the prosecution bears the
burden of disproving self-defense beyond a reasonable doubt. Riddle, 467 Mich at 155. In this
case, the prosecution presented sufficient evidence to permit a reasonable jury to reject Mims’s
version of events and find beyond a reasonable doubt that he did not act in self-defense.

At trial, Davin Young testified that he was an eyewitness to the shooting and that it did not
involve any provocation by Johnson or Miller. Young stated that Miller was not even in the house
when the shooting occurred. Rather, Young and Johnson were sitting on the couch when Johnson
asked Young to go outside to speak with him. Young stated that, as he and Johnson walked out
the front door, Mims ran up, reached out and pointed a firearm directly at the back side of
Johnson’s head, and shot him; Young opined that Johnson never saw it coming and was dead
before he fell outside.

Young’s testimony alone—if believed by the jury—was sufficient to establish that Mims
shot Johnson without any provocation or justification whatsoever. From that, a reasonable jury
could find beyond a reasonable doubt that Mims did not reasonably believe that he needed to use
deadly force to defend himself. See id. A reasonable jury hearing Young’s testimony could also
infer that any aggressive actions by Miller were in response to having seen Mims execute Johnson
on the steps. Hence, a reasonable jury could conclude that Mims was the initial aggressor with
regard to Miller and was, therefore, not acting in self-defense. See People v Guajardo, 300 Mich
App 26, 35; 832 NW2d 409 (2013) (stating that an initial aggressor cannot claim self-defense).

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 Mims argued at trial that Young’s testimony could not be believed because he was a police
informant. Whether Young was worthy of belief was a matter for the jury alone; and this Court
will not second-guess the jury’s credibility determination. See People v Bailey, 310 Mich App
703, 714; 873 NW2d 855 (2015) (stating that it is for the jury to decide the weight and credibility
to be afforded the evidence and warning that the Court would not interfere with the jury’s role as
the sole judge of the facts). We note that the jury was made fully aware that Young was a police
informant, and just after denying that he had a substance abuse problem, he admitted on the stand
that he might test positive for marijuana if he were to be immediately tested. Thus, the jury knew
that there might be some cause to doubt the reliability of Young’s testimony. Even setting aside
Young’s testimony, there was additional ample evidence to support the jury’s decision to reject
Mims’s version of events.

Mims claimed that he only drew his weapon and fired at Johnson and Miller after he
observed both men were armed and Miller first began to fire at him. The events occurred in front
of numerous witnesses, however, not a single witness testified they saw Miller or Johnson wielding
or firing a gun. Some witnesses testified to the contrary: they stated that they did not see any
altercation or provocation between Johnson, Miller, or Mims. There was testimony that witnesses
heard shots that they thought were from different guns, and there was testimony that could have
led the jury to believe that Miller and Johnson were armed at some point. According to Mims, he
moved from one side of the doorway to the other side without Miller or Johnson seeing him. At
that point, Miller purportedly turned and fired several shots at the location where Mims had been
located moments earlier, while Johnson was reentering the home with a weapon. Mims claimed
that it was only then that he pulled his weapon. He then shot Johnson in the back of the head and
pushed both Miller and Johnson through the open door. That story was so inconsistent with the
physical evidence that a reasonable jury could conclude that Mims was fabricating his version of
events to put himself in a better light.

Additionally, as previously discussed, the physical evidence also undermined Mims’s
version of events. Officers who searched the home did not find any evidence that someone other
than Mims fired any shots in the house—there were no shell casings and no signs of bullet strikes
inside the home other than two .25 caliber shots that evidence established came from outside near
the road and struck the terrarium. Mims maintained that the officers did a poor job of searching
the home and that the shell casings from Miller’s weapon may have been inadvertently moved by
the crowd of spectators. When examining the evidence, this Court must consider all the inferences
that can fairly be drawn from the evidence because, when evidence is relevant and admissible, “it
does not matter that the evidence gives rise to multiple inferences or that an inference gives rise to
further inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). The evidence
that the officers had no trouble finding the five shell casings associated with the five shots fired by
Mims indicated that the reason that they did not find any other shell casings in the home or around
the bodies had nothing to do with the crowd or poor police investigation; instead, a reasonable jury
could find that the officers found no shell casings that could be associated with Miller or Johnson
because neither man fired a weapon. See id.

The jury also heard that Johnson suffered a gunshot wound to the back of the head that was
inconsistent with Mims’s testimony about his location at the point when he first began to shoot.
The shot to Johnson’s head was from back to front and went in a downward trajectory. That shot
was consistent with Young’s testimony, but inconsistent with Mims’s claim that Johnson was

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reentering the home. Additionally, the medical examiner, Dr. Theodore Brown, testified that that
shot passed through Johnson’s brain stem and cerebellum and was instantly fatal, which was
inconsistent with Mims’s claim that Johnson was still holding a gun and was trying to get back up
after being struck by the first shot to his head. The evidence further suggested that Mims stood
over Johnson and fired a second shot directly into Johnson’s face, which was corroborated by eye
witness testimony. A reasonable jury making those inferences would be justified in further
inferring that Mims was not acting out of any sense that he was in imminent danger, but instead
deliberately executed Johnson. See id. Witnesses also testified that Johnson was not entering the
home when he was shot. These other witnesses stated that Johnson was in the doorway and facing
outside when Mims shot and killed him. From all this evidence, a reasonable jury could reject
Mims’s claim that he shot and killed Johnson in self-defense. See McFarlane, 325 Mich App at
513.

The physical evidence similarly supported the jury’s decision to reject Mims’s version of
events with regard to Miller. The evidence showed that Miller was shot and killed in the yard and
nowhere near the doorway, even though Mims claimed that Miller was in the doorway when the
shooting began. The jury heard that three shell casings associated with the shots that killed Miller
were found clustered together near Miller’s body. The evidence showed that Miller was shot from
behind twice and once in the face. Dr. Brown testified that the shots to the back of Miller’s arm
and torso went through Miller, yet Miller was found facing up. This evidence permitted an
inference that Mims walked up to Miller and shot him while he was facing away from Mims—
either because he was fleeing or did not know that Mims was approaching. The jury could then
find that Mims fired the third shot into Miller’s head. See Hardiman, 466 Mich at 428. The totality
of those circumstances was so inconsistent with Mims’s version that a reasonable jury could
readily reject Mims’s claim that he only acted because he feared imminent death or serious bodily
injury at Miller’s hands. Consequently, even without Young’s testimony—which was entirely
consistent with the physical evidence and the other witnesses’ testimony—the prosecutor
presented sufficient evidence from which a reasonable jury could reject Mims’s claim of self-
defense beyond a reasonable doubt. See McFarlane, 325 Mich App at 513.

This same evidence supported an inference that Mims had the requisite state of mind to
support a first-degree murder conviction—that is, that he acted deliberately and with
premeditation. See, Id. In proving an actor’s state of mind, the jury may rely on circumstantial
evidence and the reasonable inferences arising from that evidence; indeed, minimal circumstantial
evidence is sufficient to establish that a defendant had the intent to kill and proceeded with
deliberation and premeditation. People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008).
The prosecution may establish premeditation and deliberation through evidence of the parties’
prior relationship, the defendant’s actions before the killing, the circumstances regarding the
killing itself, and the defendant’s conduct after the killing. People v Schollaert, 194 Mich App
158, 170; 486 NW2d 312 (1992).

As previously discussed, Mims ran up to Johnson as Johnson was leaving the home and
shot him in the rear side of his head. In order to run up and shoot Johnson in that way, Mims had
to ready his weapon, contemplate his approach, and then proceed to run up to Johnson. The
evidence that he ran up to Johnson while Johnson was turned away from him, reached over Young,
and shot Johnson demonstrated a level of planning, which suggests that he acted deliberately and
with premeditation. See Tilley, 405 Mich at 44-45. Additionally, the evidence showed that, after

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Mims shot Johnson, Johnson fell outside and came to rest by the last step. Dr. Brown testified that
Johnson was also shot through the nose and that the bullet traveled through his brain to the back
of his head. That evidence tended to suggest that Mims stood over Johnson as he lay prone and
shot him in the head a second time, which was also consistent with witness testimony. The extra
effort that Mims took to fire the second shot and thereby ensure that Johnson was dead
encompassed time to rethink his actions. See id. Mims then turned his attention to Miller.

The evidence showed that Mims shot Miller twice from behind and once to the face. A
reasonable jury could find that Mims first fired at Miller when Miller was facing away and that he
fired the third and last shot after Miller fell. See Hardiman, 466 Mich at 428. Again, the evidence
that Mims approached Miller and shot him in the head indicated that Mims acted deliberately and
with a significant opportunity to take a second look at what he was doing. See Tilley, 405 Mich at
44-45. Consequently, there was sufficient evidence from which a reasonable jury could find
beyond a reasonable doubt that Mims acted deliberately and with premeditation. See McFarlane,
325 Mich App at 513. Accordingly, defendant is not entitled to relief on this issue.

VI. MANSLAUGHTER INSTRUCTION

A. STANDARDS OF REVIEW

Mims also argues on appeal that the trial court erred when it refused to instruct the jury on
the necessarily included lesser offense of manslaughter. This Court reviews de novo whether the
trial court properly instructed the jury. See People v Martin, 271 Mich App 280, 337; 721 NW2d
815 (2006). This Court reviews the instructions as a whole to determine whether “the instructions
adequately protected the defendant’s rights by fairly presenting to the jury the issues to be tried.”
Id. at 337-338 (quotation marks and citation omitted).

B. ANALYSIS

A defendant is entitled to have the jury instructed on a necessarily included lesser offense
of a charged offense if a rational view of the evidence would support such an instruction. See
People v Mendoza, 468 Mich 527, 533; 664 NW2d 685 (2003). Both involuntary and voluntary
manslaughter are necessarily included lesser offenses of murder. Id. at 541. As such, Mims would
have been entitled to an instruction on manslaughter, if a rational view of the evidence supported
that instruction. See id. at 533. On appeal, Mims refers to involuntary manslaughter, but also
refers to adequate provocation, which is an element of voluntary manslaughter. As such, it is
unclear which manslaughter instruction he is actually arguing the trial court should have given.

Voluntary manslaughter is the intentional killing of another while under the influence of
passion produced by an adequate provocation. Id. at 535. The provocation necessary to mitigate
a homicide from murder to voluntary manslaughter is that which would cause a reasonable person
to lose control and act out of passion rather than reason. See Roper, 286 Mich App at 87.
Additionally, there must have been no lapse of time within which a reasonable person would have
controlled his passions. Id.

During the discussions on jury instructions, defense counsel asked for an instruction on the
necessarily included lesser offense of involuntary manslaughter. He stated that the instruction was
warranted because the “level of excitement was high.” The prosecutor argued in response that

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there was no evidence that Mims ever lost control. The trial court indicated that the only evidence
tending to show provocation—before Miller allegedly pulled a handgun—was the evidence that
Miller and Johnson exchanged “stink eyes” with each other and Johnson deliberately bumped
Mims. The court determined that was inadequate to constitute provocation as a matter of law.
Accordingly, it denied the requested instruction.

At trial, Mims testified about incidents of harassment that Johnson and Miller purportedly
subjected him to. However, those incidents occurred before the night at issue and after a
reasonable person would have had more than sufficient time to compose themselves. As such,
even if they were the kinds of incidents that would cause a reasonable person to lose control, they
would not warrant an involuntary manslaughter instruction. See id. Likewise, there was little
testimony that Miller or Johnson engaged in acts that were of a type that would tend to cause a
reasonable person to lose control and act out of passion. The same is true of the evidence of
provocation on the night at issue.

According to Mims, the only actions that Johnson or Miller did to provoke him was show
up to the house when he felt it was improper for them to do so, to stiff-arm him, and to say, “I got
you.” Such actions are not generally understood to cause a reasonable person to fly into an
uncontrollable rage. As this Court has stated, “ ‘[n]ot every hot-tempered individual who flies into
a rage at the slightest insult can claim manslaughter.’ ” Roper, 286 Mich App 89, quoting People
v Pouncey, 437 Mich 382, 389; 471 NW2d 346 (1991). Because no reasonable jury could find
that a person would lose control over such trivial actions, the trial court correctly determined that
an voluntary manslaughter instruction was not warranted. See Pouncey, 437 Mich at 390 (stating
that the trial court may exclude provocation when no reasonable jury could find that the
provocation was adequate). But even assuming that these actions might have established a
question of fact for the jury, Mims removed that issue from the jury when he testified that none of
these events actually caused him to lose control. Mims testified that he showed great restraint and
was prepared to let Miller and Johnson leave without retaliating against them for their lack of
respect; the only reason he pulled his gun was in self-defense. Consequently, the trial court did
not err when it denied Mims’s request for an instruction on voluntary manslaughter. See id. at
390-391 (noting that the defendant himself stated that he was not angry and holding that the
evidence was inadequate to submit the matter to the jury).

Similarly, there was no basis for instructing the jury on involuntary manslaughter, which
is—in relevant part—the “unintentional killing of another, without malice.” See Mendoza, 468
Mich at 536. There was no evidence that the killings of either Johnson or Miller were
unintentional. See id. at 545. Witnesses testified that Mims walked up to both victims and shot
them “execution style,” and Mims testified that he intentionally shot and killed both Johnson and
Miller, albeit in claimed self-defense.

Even if this Court were to conclude that the trial court should have given a manslaughter
instruction, as the prosecutor correctly notes on appeal, that error would not warrant relief. The
jury was instructed on the necessarily included lesser offense of second-degree murder for both
Miller and Johnson. The jury rejected the lesser offenses for both men. Consequently, any error
was harmless. See People v Gillis, 474 Mich 105, 140 n 18; 712 NW2d 419 (2006).

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 VII. MOTION FOR A NEW TRIAL

A. STANDARDS OF REVIEW

We next address Mims’s argument that the trial court erred when it denied his motion for
a new trial. On appeal, he only challenges whether the trial court should have granted his motion
premised on improper questions by the prosecutor. This Court reviews a trial court’s decision on
a motion for a new trial for an abuse of discretion. See People v Rao, 491 Mich 271, 279; 815
NW2d 105 (2012). A trial court abuses its discretion when it selects an outcome that falls outside
the range of principled outcomes. Id. Whether a prosecutor engaged in misconduct that denied
the defendant a fair trial is a question of law that this Court reviews de novo. See People v
Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003).

B. ANALYSIS

During his cross-examination of Mims, the prosecutor asked Mims if he thought that
Detective Sites was lying, and Mims stated that he did think that Detective Sites was lying about
what Mims told him on the plane. The prosecutor also asked Mims if another witness was lying
when she said that she was in the house during the events at issue, and Mims said that she was
lying too. Thereafter, the trial court intervened on its own initiative, and the prosecutor did not
ask Mims again whether he thought another witness had lied.

The trial court found, and we concur, that it was improper for the prosecutor to ask Mims
whether he thought the other witnesses were lying because Mims’s opinion of their credibility was
not relevant. See People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). Having found the
prosecutor’s questions constituted error, we must next determine whether the prosecutor’s error
was harmless.

Review of the record leads us to conclude that the prosecutor’s questions did not amount
to improper bolstering of the witnesses as the improper questions did not involve asking witnesses
to opine about Mims’s guilt, and were—as the prosecutor noted on appeal—quite limited in scope.
Under the circumstances, the prejudice was minimal. See id. (noting the same factors and
concluding that the Court was unable to discern how the defendant was harmed by the questions).
Additionally, any prejudice could readily have been cured by a jury instruction, which the defense
did not request. See People v Holt, 207 Mich App 113, 122; 523 NW2d 856 (1994). Consequently,
the trial court did not abuse its discretion when it denied Mims’s motion for a new trial premised
on that claim of error. See Rao, 491 Mich at 279.

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 VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARDS OF REVIEW

In his Standard 4 brief,2 Mims argues that defense counsel provided ineffective assistance
and that, but for his errors, there was a reasonable probability that the outcome would have been
different. Specifically, he maintains that defense counsel failed to lay a proper foundation for the
introduction of an inconsistent statement that could have been used to impeach a witness, Keyoma
Campbell. He also claims that defense counsel should have objected to the admission of the
autopsy photos on the ground that they were gruesome.

This Court reviews de novo as a question of constitutional law whether a particular act or
omission fell below an objective standard of reasonableness under prevailing professional norms
and prejudiced the defendant’s trial. People v Gioglio (On Remand), 296 Mich App 12, 19-20;
815 NW2d 589 (2012), remanded for resentencing 493 Mich 864 (2012). Because the trial court
did not hold an evidentiary hearing on this claim of error, there are no factual findings to which
this Court must defer and this Court’s review is for mistakes that are apparent on the record alone.
See id. at 20. However, if a defendant has preserved a request to remand, we can and must consider
any additional evidence supplied by the defendant for the limited purpose of considering whether,
upon plenary review, such a remand would be appropriate. People v Moore, 493 Mich 933, 933;
825 NW2d 580 (2013).

In order to establish his claim of ineffective assistance of counsel, Mims must show that
his trial counsel’s failure to impeach the witness and object to the admission of the photos fell
below an objective standard of reasonableness under prevailing professional norms. See Gioglio,
296 Mich App at 22. To overcome the presumption that defense counsel provided effective
assistance, Mims must show that no reasonable lawyer in defense counsel’s position would have
refrained from impeaching the witness or would have failed to object to the photos. See id. at 22-
23. He must also demonstrate that the act or omission that fell below an objective standard of
reasonableness prejudiced his trial. See id. at 23. An act or omission prejudices a defendant’s trial
when there is a reasonable probability that, but for the act or omission, the outcome would have
been different. Id.

B. ANALYSIS

Although Campbell testified at trial, her testimony was not particularly helpful to the
prosecution. Campbell reluctantly admitted that she saw the shooter and denied knowing who the
shooter was; she also repeatedly emphasized how she did not get a good look at what was
happening. When cross-examining Campbell, defense counsel got Campbell to admit that she told
officers a different version of events when she spoke to them shortly after the events at issue,
eventually admitting she lied to them. Trial counsel also elicited from Campbell that she only told
the “real” story three weeks before trial. Defense counsel also elicited testimony from Campbell

2
A Standard 4 brief is a supplemental brief filed in propria persona by a criminal defendant under
Standard 4 of Michigan Supreme Court Administrative Order 2004-6, 471 Mich c, cii (2004).
People v Lampley, 327 Mich App 104, 132 n 2; 933 NW2d 314 (2019).

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in which she admitted that she visited a prisoner at the jail and told him that Johnson tried to shoot,
but got shot up.

Generally, whether and how to cross-examine a witness are matters of trial strategy. See
People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008). In this case however, there is no
question but that trial counsel’s failure to inquire of Campbell whether Johnson was armed
established that trial counsel’s performance was so deficient that if fell below an objective standard
of reasonableness. See People v Putnam, 309 Mich App 240, 248; 870NW2d 593 (2015). In a
discussion held outside the presence of a jury, it became clear that defense counsel wanted to ask
Detective Sergeant Brian Kastelic about the statement wherein Campbell told officers that Johnson
was armed. The prosecutor objected on the ground that defense counsel did not ask Campbell
whether she made an inconsistent statement to the officers. See MRE 613(b). Defense counsel
suggested that he did question her about whether she saw Johnson with a gun. The trial court
reviewed defense counsel’s examination and determined that he did not ask Campbell about a
statement to officers concerning whether Johnson was armed. As such, it barred defense counsel
from bringing that statement out through the detective to impeach Campbell. Because it is clear
on the record that defense counsel thought he had established grounds for bringing in Campbell’s
statement, but was mistaken, his failure to properly lay the foundation for impeaching Campbell
amounts to an omission that is evident on the record. Accordingly, we next examine whether
defendant suffered prejudice, such that, “but for defense counsel’s errors, the result of the
proceeding would have been different.” Putnam, 309 Mich App at 248.

Because trial counsel cross-examined Campbell and exposed her credibility issues, any
statement that Detective Kastelic would have related would have served only to further impeach
Campbell—it would not have been substantive evidence that Johnson was actually armed. See
People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995) (“The purpose of extrinsic
impeachment evidence is to prove that a witness made a prior inconsistent statement-not to prove
the contents of the statement.”). Additionally, trial counsel elicited testimony that Campbell had
told others that Johnson was armed, but she also stated that her statements to others shortly after
the shooting were not true and that she was, for the most part, just relating information that she
had heard on the street. Given the testimony by other fact and expert witnesses that established
Mims shot and killed both Johnson and Miller under circumstances that did not appear to have
been provoked or in self-defense, we cannot conclude that additional impeachment of Campbell
would have altered the jury’s verdict. See Putnam, 309 Mich App at 248.

As to the admission of the autopsy photos, we note that relevant evidence is generally
admissible. MRE 402; Roper, 286 Mich App at 91. Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” MRE 401. When considered
with the other testimony and evidence, the images were highly relevant to a variety of disputed
facts, such as Mims claim of self-defense and whether Mims premeditated killing Johnson and
Miller.

The images were relevant as visual aids to understanding Dr. Brown’s testimony. See
People v Mills, 450 Mich 61, 72-74; 537 NW2d 909 (1995) (providing that images of a victim’s
injuries may be relevant to corroborate a witness’s testimony). Dr. Brown opined that Johnson’s
injuries were inflicted at close range. Additionally, he stated that there was an injury to the side

-18-
of Johnson’s head that went from front to back and proceeded downward, which permitted an
inference that Johnson was shot from behind and above. The autopsy images visually depicted the
evidence that supported Dr. Brown’s conclusion.

The images were also relevant to establishing the relative positioning of the parties during
the shooting. When considered with the evidence that Johnson was 6’2” tall, the images gave rise
to an inference that Johnson was standing on the steps leading up to the house and facing away
from the shooter when he was shot.

The images were relevant as well to assessing the credibility of both Young and Mims.
The images were consistent with Young’s testimony that Mims ran up, reached over Young’s
shoulder, and shot Johnson in the back of his head as Johnson was leaving the home; they were
inconsistent with Mims’s statement that Mims shot Johnson as Johnson was reentering the home.
See People v Layher, 238 Mich App 573, 579-580; 607 NW2d 91 (1999) (stating that evidence
implicating a witness’s credibility is almost always relevant).

The images of the gunshot wound to Johnson’s nose also tended to suggest that Johnson
was prone when Mims inflicted that wound—that is, the images permitted an inference that Mims
stood over Johnson and shot him in the face. The fact that Mims was able to stand over Johnson
permitted the further inference that the shot to the nose was the second shot and, therefore,
permitted an inference that Johnson was fully incapacitated when Mims stood over Johnson and
shot him again. That evidence helped establish the prosecution’s theory that Mims acted
deliberately and with premeditation.

The same factors were involved with the images of Miller’s injuries. The images
established that Mims shot Miller twice from behind, which tended to show that Miller was turned
away from Mims when Mims shot him. The images of the injury to Miller’s head also tended to
bolster the testimony that Mims ran up to Miller and fired a final shot to finish Miller off.

Taken together, the images were highly relevant to the jury’s understanding of the
circumstances regarding the shooting and for assessing the credibility of the witnesses’ testimony.
Accordingly, the evidence was relevant and admissible. See MRE 401; MRE 402. Moreover,
although relevant evidence may be excluded if “its probative value is substantially outweighed by
the danger of unfair prejudice,” MRE 403, the fact that images at issue were gruesomeness did not
itself require exclusion. See Mills, 450 Mich at 76. Rather, the inquiry was whether the probative
value of the images was substantially outweighed by the danger of unfair prejudice. Id. The
images did not involve such untoward detail that a reasonable juror would be unable to fairly assess
their probative value—that is, there was no danger that “evidence which is minimally damaging
in logic will be weighed by the jurors substantially out of proportion to its logically damaging
effect.” Id. at 75-76 (quotation marks and citation omitted). Because the images were highly
relevant to several important areas of dispute, they were not excludable under MRE 403.
Consequently, defense counsel cannot be faulted for failing to object to their admission on that
basis. See People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018) (stating that defense
counsel is not ineffective for failing to make a meritless motion).

Accordingly, defendant is not entitled to relief on his claims of ineffective assistance of
counsel.

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 IX. SUPPRESSION OF EVIDENCE

A. STANDARDS OF REVIEW

Mims also argues that the police officers violated due process by failing to test the clothing
of Johnson and Miller for gunshot residue, and for storing the clothing in a way that prevented him
from obtaining the same evidence. He further suggests that defense counsel was ineffective for
failing to ask the trial court to instruct the jury that it could infer that the gunshot residue test would
have favored Mims. This Court reviews de novo the proper application of constitutional
principles, but reviews for clear error any factual findings underlying the trial court’s application
of law. See People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016).

B. ANALYSIS

In order to establish a violation of due process premised on the state’s failure to preserve
evidence, Mims must demonstrate that the officers acted in bad faith and caused the loss of
evidence that might have exonerated him. See People v Jones, 301 Mich App 566, 580-581; 837
NW2d 7 (2013) (stating that the defendant bears the burden to show that the police officers
intentionally suppressed the evidence or acted in bad faith); People v Heft, 299 Mich App 69, 79;
829 NW2d 266 (2012), lv den 495 Mich 875 (2013). The officers investigating the deaths of
Miller and Johnson had no obligation to test their clothing for gunshot reside. See People v Anstey,
476 Mich 436, 461; 719 NW2d 579 (2006) (stating that officers have no obligation to develop
evidence for the defense). Even when officers develop evidence, the officers are not obligated “to
preserve all material that might be of conceivable evidentiary significance in a particular
prosecution.” Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988).

As the prosecutor correctly notes on appeal, Mims has not identified any evidence that the
officers acted in bad faith to cause the loss of evidence. Instead, Mims asserts—without any
evidence to support his assertion—that the officers should not have hung the clothing out to dry in
a garage. Even assuming that hanging blood-stained clothing out to dry in a garage might not be
the best way to preserve evidence on the clothing, the record suggests that the officers merely acted
according to their normal practices and without any conscious effort to suppress evidence, which
does not establish that the officers acted in bad faith. See California v Trombetta, 467 US 479,
488; 104 S Ct 2528; 81 L Ed 2d 413 (1984) (stating that there is no due-process violation when
officers act in good faith according to their normal practices); see also People v Johnson, 197 Mich
App 362, 365; 494 NW2d 873 (1992) (stating that, in the absence of evidence of bad faith, the loss
of evidence before a defense request for production does not violate due process).

Additionally, Mims has not shown that the evidence was actually lost or that it might have
exonerated him. Mims failed to establish that the officers acted in bad faith when they hung the
clothing to dry in a garage or that the decision to hang the clothing resulted in the loss of potentially
exonerating evidence. See Jones, 301 Mich App at 580-581; Heft, 299 Mich App at 79.

Because the record did not support the conclusion that officers acted in bad faith, any
motion by defense counsel for relief premised on a bad faith failure to preserve evidence would
have been futile. See Head, 323 Mich App at 539. Accordingly, trial counsel was not ineffective
for failure to have the clothing tested and defendant is not entitled to relief on this issue.

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 At oral argument, defendant renewed his argument for a remand to the trial court for testing
of his clothing. Defendant asserted that such testing would bolster his claim of self-defense.
However, in support of his motion, defendant has failed to file supporting affidavits from any
experts informing this Court as to what fact in dispute testing of the evidence would prove.
Furthermore, we would expect defendant’s clothing to have gunpowder residue as it was never at
issue as to defendant’s proximity to the victims when he fired his weapon. Accordingly, in the
absence of any relevant reason for the testing, and in the absence of any expert affidavit setting
forth the relevancy of such testing, we again deny defendant’s request for a remand.

X. CUMULATIVE ERROR

Defendant next argues that the cumulative effect of the errors warrants a new trial, even if
no one error warrants a new trial.

The cumulative-error doctrine is a doctrine that recognizes that an appellate court can
reverse and remand for a new trial when the cumulative effect of several errors demonstrates that
the defendant did not receive a fair trial even though no one error by itself warranted reversal. See
United States v Rivera, 900 F2d 1462, 1470-1471 (CA 10, 1990) (en banc) (stating that the
cumulative-error doctrine aggregates the prejudice from the errors found to be harmless on appeal
to determine whether the errors collectively warrant reversal), cited with approval in People v
Bahoda, 448 Mich 261, 292 n 64; 531 NW2d 659 (1995). This Court reviews a cumulative error
argument by examining the actual errors identified on appeal to determine whether the errors
cumulatively deprived defendant of a fair trial. See People v LeBlanc, 465 Mich 575, 591 n 12;
640 NW2d 246 (2002).

Here, the only errors were the prosecutor’s improper questions to Mims and defense
counsel’s inadvertent failure to lay the foundation for further impeachment of Campbell. The
prosecutor’s questions were fleeting and caused very little prejudice. Similarly, defense counsel’s
omission had limited effect because he had already impeached Campbell’s credibility and her
testimony had little import when viewed in the context of the whole trial. As such, the cumulative
effect of these errors did not affect the fairness of Mims’s trial. See Bahoda, 448 Mich at 292
n 64. Consequently, Mims has not demonstrated that the cumulative effect of these minor errors
warrants a new trial.

XI. CONCLUSION

Because defendant has not identified any errors that warrant a new trial, we affirm.

Affirmed.

/s/ Amy Ronayne Krause
/s/ Jane E. Markey
/s/ Stephen L. Borrello

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