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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 7, 2021
Plaintiff-Appellee,
v No. 348750
Genesee Circuit Court
ERIC PAUL WILSON, LC No. 18-042749-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and GADOLA and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317;1 discharge of a firearm in a building causing death, MCL 750.234b(5); carrying a
concealed weapon (CCW), MCL 750.227; and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 288 to 480 months’
imprisonment for his second-degree murder conviction, 180 to 360 months’ imprisonment for his
discharging a firearm in a building causing death conviction, 40 to 60 months’ imprisonment for
his CCW conviction, and two years’ imprisonment for his felony-firearm conviction. We affirm.
I. UNDERLYING FACTS
Defendant shot and killed the victim after a dispute about bus passes at the Mass
Transportation Authority (MTA) bus station in Flint, Michigan, on December 1, 2017. The
shooting was captured on surveillance video, which showed defendant pulling out a gun and firing
five times at the victim after the victim pushed defendant out of the building. During a police
interview the day after the shooting, defendant admitted to shooting and killing the victim, but
asserted that he did so in self-defense.
1
Defendant was charged with first-degree premeditated murder, MCL 750.316(1)(a), but was
convicted of the lesser included offense of second-degree murder.
-1-
Before the jury was sworn in for defendant’s trial, defendant objected to the composition
of the juror venire and argued that it included too few individuals who were African-American.
Defendant argued that the composition of the jury pool violated his Sixth Amendment right to be
tried by a jury chosen from a fair cross section of his community. Defendant noted that such an
argument required him to prove a historical pattern of unreasonable underrepresentation of
African-Americans in criminal jury venires in Genesee County, where he was tried. The trial court
held an evidentiary hearing regarding the objection and accepted testimony from the Genesee
Circuit Court jury board supervisor, Christine Greig. Greig stated that her department did not keep
records regarding the racial composition of venires. Defendant asserted that, considering the lack
of data, he was being required to prove a fact that could not be proven. The trial court noted the
apparent lack of data, but, relying on precedent from our Supreme Court putting the burden on
defendant to prove that fact, overruled defendant’s objection to the jury pool.
At trial, defendant testified that he saw the victim grab a gun from the waistband of his
pants, which precipitated defendant’s decision to shoot the victim. The surveillance video shows
the victim from behind, so his waistband was not visible. The prosecution, however, elicited
testimony at trial from multiple witnesses who knew the victim personally, stated that he was not
known to carry a gun, and opined that the victim did not appear to be in an aggressive stance in
the surveillance video. The prosecution also introduced testimony from eyewitnesses at the scene
of the shooting who stated that the victim did not have a gun that day. As noted, the jury convicted
defendant, and this appeal followed.
II. JURY INSTRUCTIONS
Defendant argues that the trial court erred by failing to instruct the jury regarding voluntary
manslaughter as a lesser included offense of first-degree murder. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
To preserve an allegation that the trial court failed to provide a necessary jury instruction,
the defendant must request that instruction during the trial. People v Everett, 318 Mich App 511,
526; 899 NW2d 94 (2017). In his brief on appeal, defendant contends that he requested a
voluntary-manslaughter instruction and that the request was denied by the trial court. As the
prosecution points out, however, a review of the record shows that defendant never requested such
an instruction during trial.2 Thus, this issue is not preserved for our review. See id.
Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich 108, 116; 869
NW2d 829 (2015).
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
2
Defendant was actually tried twice. Only issues related to defendant’s second trial are at issue
on appeal.
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proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate 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. [People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]
“A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable
dispute.’ ” People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018).
B. LAW AND ANALYSIS
“A criminal defendant has the right to have a properly instructed jury consider the evidence
against him.” People v Head, 323 Mich App 526, 537; 917 NW2d 752 (2018) (quotation marks
and citation omitted). “One of the essential roles of the trial court is to present the case to the jury
and to instruct it on the applicable law with instructions that include all the elements of the offenses
charged against the defendant and any material issues, defenses, and theories that are supported by
the evidence.” People v Craft, 325 Mich App 598, 606-607; 927 NW2d 708 (2018) (quotation
marks and citation omitted). “Further, when a jury instruction is requested on any theories or
defenses and is supported by evidence, it must be given to the jury by the trial judge.” People v
Mills, 450 Mich 61, 81; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). “A requested
instruction on a lesser included offense is proper if the 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.” People v Haynie, ___ Mich ___, ___; 943 NW2d 383, 383 (2020).
Relevant to this case, “[w]hen a defendant is charged with murder, the trial court must give an
instruction on voluntary manslaughter if the instruction is supported by a rational view of the
evidence.” People v Mitchell, 301 Mich App 282, 286; 835 NW2d 615 (2013) (quotation marks
and citation omitted).
Consequently, in this case, we must consider whether a rational view of the evidence would
have permitted the jury to find defendant guilty of the lesser included offense of voluntary
manslaughter. See id. “[T]he elements of voluntary manslaughter are included in murder, with
murder possessing the single additional element of malice.” People v Reese, 491 Mich 127, 144;
815 NW2d 85 (2012) (quotation marks and citation omitted). “The elements of voluntary
manslaughter are: (1) the defendant must kill in the heat of passion, (2) the passion must be caused
by an adequate provocation, and (3) there cannot be a lapse of time during which a reasonable
person could control his passions.” People v McMullan, 284 Mich App 149, 156; 771 NW2d 810
(2009) (quotation marks and citation omitted), aff’d 488 Mich 922 (2010). As used in the
definition of manslaughter the word “provocation” is a term of art: “The provocation necessary to
mitigate a homicide from murder to manslaughter is that which causes the defendant to act out of
passion rather than reason; that is, adequate provocation is that which would cause the reasonable
person to lose control.” People v Roper, 286 Mich App 77, 87; 777 NW2d 483 (2009) (quotation
marks and citation omitted). Thus, “[P]rovocation is not an element of voluntary manslaughter . . .
[r]ather, provocation is the circumstance that negates the presence of malice.” Reese, 491 Mich at
144 (citation omitted), quoting People v Mendoza, 468 Mich 527, 536; 664 NW2d 685 (2003).
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And “malice” itself is defined as the intent to kill, the intent to cause great bodily harm, or the
intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of
such behavior is to cause death or great bodily harm. People v Baskerville, ___ Mich App ___,
___; ___ NW2d ___ (2020) (Docket No. 345403); slip op at 3-4.
The element of voluntary manslaughter most relevant to defendant’s argument is whether
there was a reasonable view of the evidence under which a jury could have concluded that
defendant killed the victim “in the heat of passion.” McMullan, 284 Mich App at 156 (quotation
marks and citation omitted). Stated differently, the trial court was required to give the instruction
for voluntary manslaughter as a lesser included offense of first-degree murder only if, in pertinent
part, a rational view of the evidence could support the conclusion that defendant shot the victim in
the heat of passion. See Mitchell, 301 Mich App at 286; McMullan, 284 Mich App at 156. During
the trial, there was testimony that defendant and the victim were in an argument about defendant
selling bus passes in the MTA station. In addition to the verbal dispute between defendant and the
victim, defendant and his girlfriend, Aareonna Miller, testified that the victim continuously pushed
defendant as he told defendant to leave the building. Despite that testimony potentially supporting
a finding of provocation, Miller did not testify regarding defendant’s emotional reaction to being
pushed or told to leave the bus station. Indeed, Miller stated that defendant was focused on his
conversation with Miller, and was mostly ignoring the victim. Other witnesses in the bus station
also described the argument between defendant and the victim, and the surveillance video showed
defendant shooting the victim after defendant was pushed by the victim. But only defendant
provided testimony about his emotional state when he shot the victim. Specifically, defendant
provided the following testimony during cross-examination:
Q. It’s your testimony [that the victim] was pursuing you outside the MTA?
A. He pursued me the whole time.
Q. Okay. Isn’t it true that as you became upset about him not letting you in
the MTA that you lost your temper and you went after [the victim]?
A. No. I did not lose my temper because he wouldn’t let me in the MTA. I
lost my—
Q. Isn’t it true because you lost your temper, you reached in and grabbed
your handgun?
A. No. I didn’t lose my temper at all. I basically only grabbed my gun to
defend. That’s the only reason. It was no losing temper.
In light of that testimony, there simply was not adequate evidence to support defendant’s
contention that a rational view of the evidence would have supported a voluntary-manslaughter
conviction. Indeed, in his brief on appeal, defendant has focused his entire argument on whether
there was adequate provocation, and does not cite any facts related to whether defendant shot the
victim in the heat of passion. This is likely the case because, as noted, none of the testimony
admitted at trial would support a finding that defendant acted in the heat of passion. Instead, as is
clear from his own testimony, defendant reacted in what he believed to be a logical and discerning
-4-
fashion—his life was in danger and he wanted to protect himself. Such a calculated decision, even
when in response to allegedly adequate provocation, does not transform defendant’s act of
shooting the victim into voluntary manslaughter. To the contrary, there must be evidence that
defendant acted in the heat of passion as a result of the provocation. As there was no evidence of
the killing in this case being the result of defendant acting out of passion rather than reason, the
trial court did not err, plainly or otherwise, when it did not give the voluntary-manslaughter
instruction. See Carines, 460 Mich at 763; Mitchell, 301 Mich App at 286; McMullan, 284 Mich
App at 156.
III. FAIR CROSS-SECTION OF THE COMMUNITY
Defendant argues that his Sixth Amendment right to trial by a jury chosen from a fair cross-
section of the community was violated. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
“[T]o properly preserve a challenge to the jury array, a party must raise this issue before
the jury is empaneled and sworn.” People v McKinney, 258 Mich App 157, 161; 670 NW2d 254
(2003). This issue is preserved, as defendant objected to the venire as not having been drawn from
a fair cross-section. See Id. “Questions concerning the systemic exclusion of minorities in jury
venires are generally reviewed de novo.” Id.
B. LAW AND ANALYSIS
“A defendant has the right to be tried by an impartial jury drawn from a fair cross section
of the community.” People v Jackson (On Reconsideration), 313 Mich App 409, 428; 884 NW2d
297 (2015), citing US Const Am VI; Const 1963, art 1, § 20; People v Bryant, 491 Mich 575, 595;
822 NW2d 124 (2012). In Bryant, 491 Mich at 596-597, our Supreme Court discussed the
framework for considering a claimed violation of that right, as set forth in Duren v Missouri, 439
US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979):
In Duren, the United States Supreme Court set forth a more substantive
framework designed to evaluate fair-cross-section challenges. Specifically, to
make a prima facie case of a violation of the Sixth Amendment’s fair-cross-section
requirement, a defendant must show:
(1) that the group alleged to be excluded is a “distinctive” group in
the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.
Our Supreme Court held that, in considering the second prong of the above analysis, “a court must
examine the composition of jury pools and venires over time using the most reliable data available
to determine whether representation is fair and reasonable.” Bryant, 491 Mich at 599-600.
-5-
Initially, it is worth noting that there is no dispute in this case that the first prong of the
above-cited test has been met, because “African-Americans, the group alleged to be excluded, are
a distinct group in the community for the purposes of determining whether there is a violation of
the Sixth Amendment’s fair-cross-section requirement.” Id. at 598. Thus, defendant’s primary
focus in this appeal is on the second prong of the analysis iterated in Bryant. Specifically,
defendant believes he has been asked to prove a fact even though no evidence exists to either prove
or disprove his contention. The crux of defendant’s argument relies on the testimony of Greig,
who stated that Genesee County did not keep a record of historical information regarding the racial
composition of criminal jury venires. Defendant argues that, without that data, it is impossible to
prove that people who are African-American are unreasonably underrepresented in Genesee
County jury venires. Defendant is incorrect.
Defendant’s argument that no evidence exists to support his juror pool argument ignores
important parts of our Supreme Court’s opinion in Bryant, 491 Mich at 599-600. As discussed,
in Bryant, the Court held that while a defendant is required to prove a historical pattern of
unreasonable underrepresentation in jury venires, the defendant is permitted to rely on “the most
reliable data available.” Id. It stands to reason, certainly, that if Genesee County tracked the racial
compilation of its own jury venires, such would be the most reliable source of data on the topic.
But just because Genesee County does not track and keep that information does not preclude
defendant from raising an argument under the Sixth Amendment and the test discussed in Bryant.
Instead, defendant is simply required to find “the most reliable data available.” Id.
Defendant need look no further than the very case he cites, Bryant, 491 Mich at 602, to
find an instance in which a defendant made a fair-cross-section claim without county records
directly on point. The Bryant Court stated that, “[i]n this case, hard data regarding the race of
those sent questionnaires or appearing for jury service are not available for two primary reasons.”
Id. The two reasons were that (1) information about the race of potential jurors was not included
in the information sent to the county by the state, and (2) potential jurors were asked to disclose
their race in voluntary surveys, but these surveys “were plagued by wildly inconsistent
participation and therefore do not provide a meaningful data set.” Id. The defendant in Bryant,
however, discovered that the “court did keep records of the zip code of each person sent a jury
summons.” Id. With that information, the defendant introduced the testimony of an expert in
statistics who “was able to estimate, using the racial makeup of each zip code from the census data,
the number of African-Americans who had been summoned for jury service from January through
March 2002.” Id. at 602-603.
Based on the reasoning of our Supreme Court in Bryant, 491 Mich at 602-603, defendant’s
argument that he was unable to adduce evidence as to the makeup of the jury pool in Genesee
County is without merit; Bryant specifically permits a Sixth Amendment fair-cross-section claim
to be made on the basis of data or statistics that are not necessarily kept by the governmental entity
in question. Defendant has not provided any historical information regarding the race of potential
jurors in Genesee Circuit Courts or provided an explanation for why he could not obtain any such
information from non-government sources. Instead, based on the record before us it appears that
defendant looked only to Genesee County for the records and that he did not make extra efforts,
like the defendant in Bryant did, to find other sources of evidence to support his jury pool
argument.
-6-
Although government data did not exist, defendant still had the burden to provide “the most
reliable data available.” Id. at 602. Bryant was clear that the second prong of a fair-cross-section
analysis “requires defendant to show that ‘representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in the
community[.]’ ” Id. at 598, quoting Duren, 439 US at 364 (alteration in original; emphasis added).
Because the law puts the burden of production on defendant, and because defendant did not provide
any evidence to carry that burden, defendant’s argument regarding a fair-cross-section claim is
without merit. Bryant, 491 Mich at 598. Moreover, because defendant had other evidence he
could have pursued, the record simply does not support defendant’s argument that such a burden
was impossible to meet, which would be a violation of his due-process rights.3 Defendant, as the
appellant, was required to provide a factual record to support his claim for reversal. People v
Elston, 462 Mich 751, 762; 614 NW2d 595 (2000) (“As the appellant . . . , defendant bore the
burden of furnishing the reviewing court with a record to verify the factual basis of any argument
upon which reversal was predicated.”). His failure to prove that there was no evidence available,
as opposed to simply the evidence he would prefer to be available, is fatal to this argument on
appeal. See id.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant, in his Standard 4 brief, argues that his trial counsel was ineffective for failing
to interview a potential exculpatory witness. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
To properly preserve a claim of ineffective assistance of counsel, a defendant must move
for either a new trial or a Ginther4 hearing in the trial court; failure to make any such motion
“ordinarily precludes review of the issue unless the appellate record contains sufficient detail to
support the defendant’s claim.” People v Sabin (On Second Remand), 242 Mich App 656, 658-
3
Defendant refers to a due-process right of fundamental fairness, but he failed to cite a single case
regarding such a right or to provide any analysis regarding the issue. Instead, defendant’s brief
argues only a fair-cross-section claim under the Sixth Amendment and Bryant. Thus, to the extent
he has attempted to make a due-process argument, it has been abandoned by his failure to brief it.
See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”).
Even so, as discussed in the analysis for this issue, defendant’s due-process argument is clearly
founded upon a misunderstanding of the law. It was not fundamentally unfair to defendant that
Genesee County did not keep historical records of the racial composition of jury venires because
defendant was permitted to support his fair-cross-section claim by using other evidence. See
Bryant, 491 Mich at 602-603.
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-7-
659; 620 NW2d 19 (2000). It is undisputed that defendant never moved the trial court for a new
trial or for a Ginther hearing.5 Thus, the issue is unpreserved.
Regardless of whether a claim of ineffective assistance is properly preserved, if the trial
court did not hold a Ginther hearing, “our review is limited to the facts on the record.” People v
Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “A claim of ineffective assistance of
counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed
for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008).
B. LAW AND ANALYSIS
A “defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. To establish an ineffective assistance of counsel
claim, a defendant must show that (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms and (2)
there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. [People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012) (citations omitted).]
The “reasonable probability” standard can be satisfied by less than a preponderance of the
evidence. People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012).
The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,”
but should “ensure that counsel’s actions provided the defendant with the modicum of
representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686
(2004), citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
“Defense counsel is given wide discretion in matters of trial strategy because many calculated risks
may be necessary in order to win difficult cases.” People v Unger, 278 Mich App 210, 242; 749
NW2d 272 (2008). Defense counsel may decide, for example, “not to object to an obvious error”
for “strategic reasons.” Randolph, 502 Mich at 12. Thus, there is a “strong presumption that trial
counsel’s performance was strategic,” and “[w]e will not substitute our judgment for that of
counsel on matters of trial strategy.” Unger, 278 Mich App at 242-243.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct
5
Indeed, no Ginther hearing was held in this case.
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the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. [Strickland, 466 US at 689 (citation
omitted).]
“Yet a court cannot insulate the review of counsel’s performance by calling it trial
strategy.” Trakhtenberg, 493 Mich at 52. “The inquiry into whether counsel’s performance was
reasonable is an objective one and requires the reviewing court to determine whether, in light of
all the circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation
marks and citation omitted). Accordingly, the reviewing court must consider the range of potential
reasons that counsel might have had for acting as he or she did. Id.
Furthermore, with regard to prejudice, as noted, to obtain a new trial on ineffective
assistance grounds, a defendant must show that “there is a reasonable probability that, but for
counsel’s errors, a different outcome would have resulted.” People v Jackson, 292 Mich App 583,
600-601; 808 NW2d 541 (2011). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v Chenault, 495 Mich 142, 150-151; 845 NW2d 731 (2014).
(quotation marks and citation omitted). To meet this standard, a defendant does not have to show
that the evidence would have ensured acquittal, id., nor is a defendant even required to show that
counsel’s failure more likely than not altered the outcome, Harrington v Richter, 562 US 86, 112;
131 S Ct 770; 178 L Ed 2d 624 (2011). Nevertheless, “[t]he likelihood of a different result must
be substantial, not just conceivable.” Id. “[W]here there is relatively little evidence to support a
guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the magnitude
of errors necessary for a finding of prejudice will be less than where there is greater evidence of
guilt.” Trakhtenberg, 493 Mich at 56.
As noted, defendant argues that defense counsel should have called a witness who may
have seen the shooting occur. “[D]ecisions regarding what evidence to present and whether to call
or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute
its judgment for that of counsel regarding matters of trial strategy.” People v Muhammad, 326
Mich App 40, 66; 931 NW2d 20 (2018) (quotation marks and citation omitted).
The basis of defendant’s argument relies partially on defense counsel’s cross-examination
of Flint Police Sergeant William Jennings, the officer-in-charge of the case. In pertinent part,
Sergeant Jennings testified that, when police officers were at the scene of the crime, they were
approached by a woman who said she witnessed the shooting. Sergeant Jennings testified that the
woman provided contact information and said she would be willing to speak with the police.
However, considering the number of eyewitnesses and that the shooting was recorded on video,
Sergeant Jennings determined it was unnecessary to speak with the woman. Defense counsel
pressed the issue with Sergeant Jennings, suggesting that the police investigation was tainted by
Sergeant Jennings’s failure to seek out any and all witnesses of the crime.
On appeal, defendant contends that defense counsel should have done more than just
question the integrity of the police investigation, and instead, should have found the witness and
called her to testify. In order to establish that his trial counsel was ineffective, defendant must
establish that his trial counsel’s “performance was below an objective standard of reasonableness
under prevailing professional norms.” Lockett, 295 Mich App at 187. As a rule, defendant is
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required to provide the factual predicate for a claim of ineffective assistance of counsel. See Hoag,
460 Mich at 6. Defendant has failed to meet that standard in this case. Defendant has not provided
any evidence even suggesting what the testimony of the witness in question would have been.
Indeed, other than his own conjecture on the subject, the record lacks any evidence that the
witness’s testimony would have been any different than that of any of the other witnesses who
actually did testify at trial. In short, there was no evidence that the witness’s testimony would have
been beneficial to defendant’s case. Because it is unpreserved, our review of the issue is limited
to mistakes apparent on the record, and, there being no such apparent mistakes, defendant’s
argument lacks merit. See Wilson, 242 Mich App at 352. Moreover, we must proceed on the
presumption that defense counsel’s decision not to call the witness was sound trial strategy, and
defendant has not provided any evidence to overcome it. See Unger, 278 Mich App at 242-243.
Instead, the record shows that defense counsel’s apparent belief that it was more beneficial to
undermine the police investigation of the crime in an attempt to create reasonable doubt, rather
than to call a witness who might have provided additional damaging testimony, such as that the
victim did not have a gun, was sound trial strategy. See id.
On an alternative basis, defendant appears to argue that this Court should find defense
counsel ineffective for failing to move for a Ginther hearing on this issue. Defendant suggests
that, during such a hearing, he could have produced evidence of the witness’s possible testimony.
A Ginther hearing is a method by which “[a] defendant who wishes to advance claims that depend
on matters not of record can properly . . . seek at the trial court level an evidentiary hearing for the
purpose of establishing his claims.” People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
A trial court’s decision whether to grant an evidentiary hearing, such as a Ginther hearing, is
reviewed for an abuse of discretion. Unger, 278 Mich App at 216-217. “An abuse of discretion
occurs when the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” Id. at 217. A Ginther hearing is not warranted if the “defendant has not set forth any
additional facts that would require development of a record to determine if defense counsel was
ineffective.” See People v Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007).
Once again, defendant was required to present some evidence of “any additional facts” that
would show a Ginther hearing was warranted. See id. At a minimum, defendant was required to
make an offer of proof as to what the evidence would have shown. See MRE 103(a)(2). As with
his previous argument, defendant has failed to carry his burden. Instead, defendant relies on his
own conjecture that the testimony of the witness would have been beneficial to his case.
Considering the utter lack of evidence on the topic, or any basis for concluding what the witness’s
testimony might have been, the trial court would have been obligated to deny a request by defense
counsel for a Ginther hearing to produce the witness. In other words, absent an affidavit from the
witness or some statement made by her, the trial court had no evidence that would warrant an
evidentiary hearing on the issue. Id. Because the motion for a Ginther hearing on that ground
properly would have been denied, and because “[i]neffective assistance of counsel cannot be
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predicated on the failure to make a frivolous or meritless motion,” this alternative argument by
defendant also lacks merit. People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).6
V. SUFFICIENCY OF THE EVIDENCE
Defendant, in his Standard 4 brief, argues that there was insufficient evidence to sustain
his conviction of second-degree murder. We disagree.
A. STANDARD OF REVIEW
A valid criminal conviction requires proof beyond a reasonable doubt of every element of
every crime. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). A challenge to the
sufficiency of the evidence to support a criminal conviction presents a question of law subject to
review de novo. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). When
reviewing the sufficiency of the evidence in a criminal case, a reviewing court must view the
evidence of record in the light most favorable to the prosecution to determine whether a rational
trier of fact could find that each element of the crime was proved beyond a reasonable doubt. Id.
A reviewing court “must consider not whether there was any evidence to support the conviction
but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond
a reasonable doubt.” People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748, amended 441 Mich
1201 (1992) (citation and quotation marks omitted). Our “standard of review is deferential: a
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (citation
omitted). “Conflicting evidence and disputed facts are to be resolved by the trier of fact. 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)
(citations omitted). Similarly, “[c]ircumstantial evidence and reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of the crime.” People v Kanaan,
278 Mich App 594, 619; 751 NW2d 57 (2008). Finally, “[d]ue process requires the prosecution
in a criminal case to introduce sufficient evidence to justify a trier of fact in its conclusion that the
defendant is guilty beyond a reasonable doubt.” People v Breck, 230 Mich App 450, 456; 584
NW2d 602 (1998). As such, a conviction based on insufficient evidence violates due process. See
id.
6
The prosecution interpreted defendant’s admittedly confusing alternative argument in his
Standard 4 brief as a claim of ineffective assistance of appellate counsel. While we have read the
argument differently, the outcome of the analysis would be the same—absent any evidence of the
witness’s potential testimony, a motion to remand the case for a Ginther hearing lacked merit. See
Williams, 275 Mich App at 200. Thus, appellate counsel was not ineffective for failing to move
for a remand for a Ginther hearing because any such request could not have succeeded, for the
reasons discussed earlier. See Riley, 468 Mich at 142; People v Uphaus, 278 Mich App 174, 186;
748 NW2d 899 (2008) (“[T]he test for ineffective assistance of appellate counsel is the same as
that applicable to a claim of ineffective assistance of trial counsel.”).
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B. LAW AND ANALYSIS
First, we must address that defendant’s argument appears to rely on a misstatement of the
record. In pertinent part, defendant claims that Julissa Townsend, who was at the MTA bus station
on the night of the shooting, took the victim’s cell phone from the scene of the crime, which
defendant suggests amounted to a criminal offense. Defendant states that Townsend should have
been convicted of tampering with evidence. Defendant is correct that Townsend testified that she
took the victim’s cell phone from near his body after he was shot. She then used that cell phone
to call 911. But, later during her testimony, Townsend clarified that she gave the cell phone to the
victim’s sister, who then gave the cell phone to police. Thus, to the extent that defendant’s
argument relies on an allegation that the victim’s cell phone was never provided to the police, it is
not supported by the record, and thus, is without merit.
Additionally, defendant has not suggested how removal of the cell phone from the scene
of the shooting affected the sufficiency of the evidence that he committed second-degree murder.
Nevertheless, a review of the elements of a claim of second-degree murder, the evidence in the
case, and defendant’s claim of self-defense demonstrates that there was sufficient evidence to
sustain defendant’s conviction. In a recent decision, People v Baskerville, ___ Mich App ___,
___; ___ NW2d ___ (2020) (Docket No. 345403); slip op at 3-4, this Court stated the elements of
second-degree murder:
The elements of second-degree murder are (1) a death, (2) the death was
caused by an act of the defendant, (3) the defendant acted with malice, and (4) the
defendant did not have lawful justification or excuse for causing the death. Malice
is defined as the intent to kill, the intent to cause great bodily harm, or the intent to
do an act in wanton and willful disregard of the likelihood that the natural tendency
of such behavior is to cause death or great bodily harm. Second-degree murder
evolved from common-law murder, under which malice aforethought was
understood for centuries to be the grand criterion distinguishing murder from less
wicked homicides. [Citations and quotation marks omitted.]
Although defendant has not identified the specific element or elements at issue on appeal, because
he testified that he shot and killed the victim, it is clear that there was sufficient evidence that “a
death” occurred, and that “the death was caused by an act of . . . defendant.” Id. at ___; slip op at
3 (citation and quotation marks omitted).
As to the remaining two elements, there was sufficient evidence to support a conclusion
that “ ‘defendant acted with malice, and . . . defendant did not have lawful justification or excuse
for causing the death.’ ” Id. Recall that “malice” is fulfilled by “the intent to kill, the intent to
cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood
that the natural tendency of such behavior is to cause death or great bodily harm.” Id. (quotation
marks and citation omitted); see generally Section II(B) of this opinion. Defendant admitted that
he used a handgun to shoot the victim three times. Indeed, defendant shot the gun five times in
the victim’s direction. The bullets were aimed at the victim’s chest and two of the bullets actually
pierced the victim’s chest cavity and his lungs. From that evidence, the jury had more than
sufficient grounds to infer that defendant intended to kill the victim, or at the very least, to cause
the victim great bodily harm. Id. at ___; slip op at 3-4.
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In light of that evidence, it is apparent that defendant’s argument related to sufficiency of
the evidence is focused on the fourth and final element of second-degree murder—whether
defendant had a lawful justification for the shooting. Id. Defendant’s argument during the trial
was that he acted in self-defense. “With the enactment of the Self-Defense Act (SDA), MCL
780.971 et seq., the Legislature codified the circumstances in which a person may use deadly force
in self-defense . . . without having the duty to retreat.” People v Dupree, 486 Mich 693, 708; 788
NW2d 399 (2010). In relevant part, MCL 780.972(1)(a) states that
[a]n individual who has not or is not engaged in the commission of a crime at the
time he or she uses deadly force may use deadly force against another individual
anywhere he or she has the legal right to be with no duty to retreat if . . . [t]he
individual honestly and reasonably believes that the use of deadly force is necessary
to prevent the imminent death of or imminent great bodily harm to himself . . . .
“Once a defendant raises the issue of self-defense and satisfies the initial burden of producing
some evidence from which a jury could conclude that the elements necessary to establish a prima
facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense
beyond a reasonable doubt.” People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014)
(quotation marks and citation omitted).
Defendant testified that after the victim pushed him near the MTA station exit, the victim
lifted up his shirt and reached for a gun that was in the waistband of his pants. Upon seeing that
action, defendant believed his life was in danger, pulled out his own gun, and shot the victim.
While that testimony from defendant supported his allegation of self-defense, as did testimony
regarding the victim yelling at defendant and pushing him, there also was significant evidence that
defendant did not “honestly and reasonably believe[] that the use of deadly force [was] necessary
to prevent [his] imminent death.” MCL 780.972(1)(a). Specifically, no one else at the bus stop
saw the victim with a gun. The victim’s mother testified that the victim never carried a gun and
that he did not have one the day he was killed. Other witnesses who knew the victim agreed that
the victim did not have a gun on the day of the shooting. Moreover, Vernon Beasley, who did not
know the victim personally and who closely examined the victim’s body while rendering first aid
to him soon after he was shot, testified that the victim did not have a gun on his person or around
his body. Beasley stated that he ripped off the victim’s shirt, so the victim’s waistband would have
been visible and he would have seen any gun in the victim’s waistband. Lastly, several witnesses
who knew the victim personally testified that his posture in the surveillance video was not
indicative of aggressiveness.
Giving defendant’s confusing brief the benefit of the doubt, he appears to be attempting to
bring all of this testimony into doubt by suggesting that someone around the victim’s body likely
removed the victim’s gun from the scene. His reasoning is that, if someone could remove a cell
phone from the vicinity of the victim, then someone also could have removed a gun. While that
is undoubtedly possible, the jury considered that possibility and disbelieved it. Instead, the jury
credited the many witnesses who described the victim as not having a gun on the day in question,
and thus, found that defendant was not reasonably in fear of his life when he killed the victim.
That was the province of the jury, and we will not interfere with that conclusion. See Oros, 502
Mich at 239. At best, defendant has presented us with a factual dispute about whether the victim
had a gun, reached for it, and defendant shot him because defendant feared for his life. On appeal,
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we must construe the evidence in the light most favorable to the prosecution, which supports the
verdict. See Herndon, 246 Mich App at 415. In sum, because there was sufficient evidence for a
rational juror to believe beyond a reasonable doubt that defendant did not act in self-defense when
he shot and killed the victim, there was sufficient evidence to support defendant’s conviction of
second-degree murder. See Stevens, 306 Mich App at 630.
VI. CONCLUSION
We find no prejudicial error regarding defendant’s convictions. For the reasons stated,
therefore, defendant’s convictions are affirmed.
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
/s/ Jonathan Tukel
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