Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 2, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 120363
DANIEL JESSE GONZALEZ,
Defendant-Appellant.
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BEFORE THE ENTIRE BENCH
YOUNG, J.
Defendant was convicted of first-degree premeditated
murder, MCL 750.316(1)(a); felony murder, MCL 750.316(1)(b),
first-degree criminal sexual conduct (CSC I ), MCL 750.520b(1);
and arson of a dwelling house, MCL 750.72. The Court of
Appeals affirmed defendant’s first-degree murder convictions,
but vacated the CSC I and arson convictions as predicate
felonies for defendant’s felony-murder conviction.1 This
Court granted leave to appeal.
We conclude that there was sufficient evidence to support
defendant’s first-degree premeditated murder conviction. We
further conclude that there was no evidence of an accomplice
and thus the trial court did not err when it failed to give
sua sponte a cautionary accomplice instruction under People v
McCoy, 392 Mich 231; 220 NW2d 456 (1974). Moreover,
defendant’s attorney was not ineffective for failing to
request the instruction. Accordingly, we affirm the judgment
of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Defendant’s conviction arises from the brutal rape and
murder of the victim, Carol Easlick. Testimony established
that on the day of the offense, defendant and his friend,
Woodrow Couch, visited the victim in her apartment.2 After a
short stay, both men left the apartment. Later in the day,
defendant returned to the victim’s apartment alone. While
there, defendant raped the victim, battered her to death, and
1
Unpublished opinion per curiam, issued June 19, 2001
(Docket No. 220715). The Court of Appeals explained that it
was unclear whether the arson or CSC I conviction served as the
predicate felony. However, because defendant ultimately faced
life in prison without the possibility of parole, the panel
thought it appropriate to vacate both convictions.
2
Couch was a key prosecution witness.
2
then set her corpse on fire.3
Defendant was arrested and charged with first-degree
premeditated murder, MCL 750.316(1)(a); first-degree felony
murder, MCL 750.316(1)(b); first-degree arson of a dwelling
house, MCL 750.72; and CSC I, MCL 750.520b(1). Defendant
denied involvement in the crime. At the close of the proofs,
before instructing the jury, the court asked both parties
whether they wanted to comment or object to the proposed jury
instructions. Defendant’s attorney responded, “other than the
alibi, I find nothing objectionable.” Significantly,
defendant’s attorney neither requested a cautionary
instruction regarding accomplice testimony nor objected to the
trial court’s failure to give sua sponte the cautionary
instruction. Defendant was convicted by a jury of all the
charges.
Defendant appealed to the Court of Appeals, raising
several claims: (1) the evidence was insufficient to support
the first-degree premeditated murder conviction, (2) the trial
court erred by failing to give sua sponte a cautionary
instruction regarding accomplice testimony, (3) his attorney
3
Defendant gave two conflicting versions of what happened
that day. In his first statement to the police, defendant
denied returning to the victim’s apartment after he and Couch
left. He also denied having sexual relations with the victim.
In his second statement, defendant stated that he had
consensual sex with the victim. However, he claimed that she
was alive when he left, and that Couch remained in the
apartment with the victim.
3
was ineffective for failing to request the cautionary
instruction, and (4) the convictions of both felony murder and
CSC I violated his double jeopardy rights.
The Court of Appeals vacated the arson and CSC I
convictions, but affirmed the remaining convictions.
Regarding defendant’s argument that the trial court erred when
it failed to give sua sponte a cautionary instruction (and
that defense counsel was ineffective for failing to request
one), the Court stated:
Here, it is apparent that defendant’s theory
of the case was that he did not commit the crimes
and was not present during the commission of the
crimes. In this regard, Couch’s testimony to this
effect as well as his credibility was attacked by
defense counsel during both cross-examination and
closing arguments. The instructions provided by
the trial court properly presented the elements of
the crimes and properly informed the jury as to
what should be considered when determining the
credibility of a particular witness. Further, DNA
analysis of the sperm swabs taken from the victim’s
vagina, rectum, and mouth established a match with
defendant’s DNA and excluded Couch as a potential
donor. Under these circumstances, the trial court
did not err when it failed to provide cautionary
instructions regarding accomplice testimony in this
case. [Slip op at 2 (citations omitted).]
Defendant applied for leave to appeal here, which was
granted.4
II. STANDARD OF REVIEW
“The test for determining the sufficiency of evidence in
a criminal case is whether the evidence, viewed in a light
4
467 Mich 898 (2002).
4
most favorable to the people, would warrant a reasonable juror
in finding guilt beyond a reasonable doubt.” “The 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 Nowack, 462 Mich 392,
399-400; 614 NW2d 78 (2000).
Whether a trial court’s failure to give sua sponte a
cautionary instruction about accomplice testimony under McCoy
was error is a question of law that we review de novo. People
v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002).
III. ANALYSIS
A
Defendant first argues that there was insufficient
evidence to support his first-degree premeditated murder
conviction. We disagree.
To show first-degree premeditated murder, “‘[s]ome time
span between [the] initial homicidal intent and ultimate
action is necessary to establish premeditation and
deliberation.’” People v Tilley, 405 Mich 38, 45; 273 NW2d
471 (1979), quoting People v Hoffmeister, 394 Mich 155, 161;
229 NW2d 305 (1975). The interval between the initial thought
and ultimate action should be long enough to afford a
reasonable person time to take a “second look.” People v
Vail, 393 Mich 460, 469; 227 NW2d 535 (1975), quoting People
v Morrin, 31 Mich App 301, 328-330; 187 NW2d 434 (1971). See
5
also People v Johnson, 460 Mich 720, 733; 597 NW2d 73
(1999)(applying a “second-look” analysis). Manual
strangulation can be used as evidence that a defendant had an
opportunity to take a “second look.” Id. Moreover, a
defendant’s attempt to conceal the killing can be used as
evidence of premeditation. Id.
In this case, there was evidence that the victim was
manually strangled. Also, there was evidence that the
defendant attempted to conceal his crime by burning the
victim’s body. Viewing this evidence in a light most
favorable to the prosecutor, we conclude there was sufficient
evidence for the jury to convict defendant of first-degree
premeditated murder. Accordingly, this conviction is
affirmed.
B
Defendant next argues that the trial court erred by
failing to give sua sponte a cautionary instruction regarding
accomplice testimony.
As an initial matter, we conclude that defendant’s
failure to either request a cautionary accomplice instruction
or to object to the trial court’s failure to give one sua
sponte, precludes defendant from seeking relief in the
appellate courts.
MCL 768.29 provides, in pertinent part, that “[t]he
failure of the court to instruct on any point of law shall not
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be ground for setting aside the verdict of the jury unless
such instruction is requested by the accused.” (Emphasis
added). MCR 2.516(C) further provides that “[a] party may
assign as error the . . . failure to give an instruction only
if the party objects on the record . . . .” (Emphasis added).
In this case, defendant neither requested a cautionary
accomplice instruction nor objected to the court’s failure to
give one. Therefore, defendant is precluded from arguing that
the omitted instruction was error. MCR 2.516(C).
Furthermore, because he failed to request the omitted
instruction, defendant is not entitled to have the verdict set
aside. MCL 768.29. Consequently, defendant’s only remaining
avenue for relief is for review under People v Grant, 445 Mich
535; 520 NW2d 123 (1994).
Because defendant failed to object to the omitted
instruction, defendant’s claim of error was forfeited. A
forfeited, nonconstitutional error may not be considered by an
appellate court unless the error was plain and it affected
defendant’s substantial rights. Grant, supra at 552-553.
Defendant maintains that the failure to give a cautionary
accomplice instruction with regard to Couch’s testimony was
plain error under McCoy, supra at 240, which held:
For cases tried after the publication of this
opinion, it will be deemed reversible error . . .
to fail upon request to give a cautionary
instruction concerning accomplice testimony and, if
7
the issue is closely drawn,[5] it may be reversible
error to fail to give such a cautionary instruction
even in the absence of a request to charge.”[6]
We conclude that it was not error for the trial court to
omit the cautionary accomplice instruction because there is no
evidence that Couch, the alleged accomplice, was involved in
the crimes at all. Significantly, the DNA evidence excluded
Couch as a potential donor of the sperm found on the victim.
Moreover, the cautionary accomplice instruction would have
been inconsistent with defendant’s theory. Defendant’s theory
was that he neither committed the charged crimes, nor was he
involved in any way. In fact, defendant’s own attorney
claimed that someone other than Couch committed the offense
during his closing argument.7
5
An issue is “closely drawn” if its resolution depends on
a credibility contest between the defendant and the
accomplice-witness. McCoy, supra at 238-239; People v Tucker,
181 Mich App 246, 256; 448 NW2d 811 (1989).
6
The latter half of this holding, commonly called the
“closely drawn” rule, states that it may be an error requiring
reversal for a court to fail to give sua sponte a cautionary
instruction when the issue of defendant’s involvement is
“closely drawn.” This rule arguably conflicts with MCL
768.29, which provides that a verdict may not be set aside
because of an omitted instruction if the defendant failed to
request the instruction. However, for reasons discussed
below, we conclude that there was no evidence of an accomplice
in this case, and, therefore, McCoy’s “closely drawn” rule is
not implicated. For that reason, we do not reach the question
whether McCoy conflicts with MCL 768.29.
7
Defendant’s attorney argued:
I submit to you that there could be some
unknown person that went in after [defendant] left,
8
For these reasons, it was not error for the trial court
to fail to give sua sponte a cautionary instruction regarding
accomplice testimony. Because defendant cannot show error, he
cannot demonstrate plain error that affected his substantial
rights. Accordingly, defendant is not entitled to relief for
the forfeited claim. Grant, supra.
C
In a related argument, defendant claims that his trial
counsel was ineffective because counsel failed to request a
cautionary accomplice instruction.
To demonstrate ineffective assistance of counsel,
defendant must show that his attorney’s conduct fell below an
objective standard of reasonableness and that the
representation so prejudiced defendant that he was deprived of
a fair trial. People v Reed, 449 Mich 375, 390; 535 NW2d 496
(1995)(opinion by BOYLE , J.). Moreover, courts will not
second-guess matters of trial strategy. People v Rice (On
Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).
Here, defendant is unable to demonstrate ineffective
assistance of counsel. As discussed above, a cautionary
instruction regarding accomplice testimony was inappropriate
because it was inconsistent with the evidence and it was
after [Couch] left, and got mad at Carol and
committed this crime and then left. [Emphasis
added.]
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inconsistent with defendant’s theory at trial. Further, it is
reasonable to presume that the attorney’s failure to request
the cautionary instruction was a matter of trial strategy. In
addition to its inconsistency with defendant’s theory, the
instruction might have damaged defendant’s case inasmuch as it
would have suggested to the jury that defendant was involved
in the offense.
Accordingly, we conclude that defendant’s attorney was
not ineffective for failing to request the cautionary
instruction.
IV
In sum, there was sufficient evidence to support
defendant’s first-degree premeditated murder conviction.
Additionally, the trial court did not err by failing to give
sua sponte a cautionary accomplice instruction, nor was
defendant’s attorney ineffective for failing to request one.
Accordingly, we affirm the judgment of the Court of
Appeals.
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman
CAVANAGH and KELLY, JJ.
We concur in the result only.
Michael F. Cavanagh
Marilyn Kelly
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