Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
Chie f Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 23, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121751
ROBERT RILEY,
Defendant-Appellee.
AFTER REMAND
PER CURIAM
The prosecutor sought leave to appeal from the Court of
Appeals decision reversing defendant’s first-degree murder
conviction on the basis that his trial counsel was ineffective
for failing to seek a directed verdict of acquittal. We
reverse the judgment of the Court of Appeals and reinstate the
defendant’s conviction of felony murder. Because the
prosecution presented sufficient evidence in its case-in-chief
to support a finding that defendant was guilty of felony
murder as an aider and abettor, defense counsel was not
ineffective for failing to seek a directed verdict.
I. Facts and Procedural History
Defendant was convicted by a jury of first-degree felony
murder, MCL 750.316(1)(b), arising out of the death of Mark
Seaton. Defendant was observed at the victim’s apartment
along with David Ware, whose whereabouts are unknown.
Defendant gave a statement to the police, admitting that he
brought Ware to the victim’s apartment and admitting to being
present in the victim’s apartment at the time of the charged
offense. Defendant claimed that he observed Ware commit the
murder. Specifically, defendant told the police that he
observed Ware strangle the victim, bind the victim’s hands and
feet together, and then strangle the victim a second time
after the victim resumed breathing. Shortly afterward, a
neighbor knocked on the door.
In addition to the admission of defendant’s statement,
the prosecution presented the testimony of several neighbors,
including Gloria Hollis. Hollis testified that she sensed
something was wrong and knocked on the victim’s apartment door
twice. On both occasions, defendant answered the apartment
door, claimed that he and Ware were cousins of the victim and
that the victim was not home. After her first visit to the
victim’s apartment, Hollis observed electronic components
being carried out of the apartment to the victim’s car.
Another neighbor testified that he observed defendant leaving
the apartment with stereo equipment. Defendant and Ware
attempted to leave the scene in the victim’s car, but
eventually fled on foot because the car would not start. The
victim was found dead in his apartment with his wrists and
ankles bound with duct tape and electrical cord.
2
In his appeal of right, the Court of Appeals reversed
defendant’s conviction on the basis that the trial court had
erred in admitting hearsay testimony.1 This Court reversed
that judgment in an opinion per curiam, holding that defendant
had knowingly waived his right to challenge the admission of
the hearsay testimony. We remanded the case to the Court of
Appeals to consider defendant’s remaining issues.2
On remand, the Court of Appeals again reversed
defendant’s murder conviction in an unpublished opinion per
curiam.3 A majority of the Court of Appeals panel held that,
after viewing the evidence in a light most favorable to the
prosecution, “a rational trier of fact could find the elements
of first-degree murder proved beyond a reasonable doubt.” Slip
op at 1.
However, the majority found merit in defendant’s claim
that he was denied the effective assistance of counsel because
his attorney failed to move for a directed verdict of
acquittal after the prosecution presented its proofs. The
majority held that “the prosecution failed to present evidence
that could establish beyond a reasonable doubt that defendant
was the principal or that he aided and abetted in the
1
Unpublished opinion per curiam, issued July 21, 2000
(Docket No. 211368). The only defense witness presented was
Mary McKinney, mother of David Ware. She testified regarding
inculpatory statements made to her by Ware. Some of the
inculpatory statements directly implicated defendant in the
binding and subduing of the victim.
2
465 Mich 442; 636 NW2d 514 (2001).
3
Unpublished opinion per curiam, issued April 5, 2002
(Docket No. 211368).
3
commission of felony murder.” Slip op at 4. The majority
further held that the failure to move for a directed verdict
fell below an objective standard of reasonableness, and that
there was a reasonable probability that defendant would have
been acquitted of the felony-murder charge had the motion been
made. The Court of Appeals remanded the case to the trial
court for entry of judgment of conviction for larceny in a
building, MCL 750.360.
The concurring judge opined that the prosecution’s
evidence was sufficient and that counsel was not ineffective
for failing to move for a directed verdict. However, because
the issue regarding the sufficiency of the evidence without
the defense witnesses’ testimony was decided in the previous
Court of Appeals opinion, the concurring judge believed that
the holding became the law of the case and was not subject to
further review.
II. Standard of Review
Whether a defendant has been denied the effective
assistance of counsel is a mixed question of law and fact. A
judge must first find the facts and then must decide whether
those facts constitute a violation of the defendant's
constitutional right to effective assistance of counsel.
People v LeBlanc, 465 Mich 575; 640 NW2d 246 (2002).
Counsel’s alleged deficiency relates to the failure to
move for a directed verdict. Because a Ginther4 hearing was
not conducted, our review of the relevant facts is limited to
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
mistakes apparent on the record. People v Nantelle, 215 Mich
App 77, 87; 544 NW2d 667 (1996).
In assessing a motion for a directed verdict of
acquittal, a trial court must consider the evidence presented
by the prosecution to the time the motion is made and in a
light most favorable to the prosecution, and determine whether
a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt.
People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
III. Analysis
To establish a claim of ineffective assistance of
counsel, a defendant must show both that counsel's performance
was deficient and that counsel's deficient performance
prejudiced the defense. Strickland v Washington, 466 US 668,
687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens,
446 Mich 298, 302-303; 521 NW2d 797 (1994). In order to
demonstrate that counsel's performance was deficient, the
defendant must show that it fell below an objective standard
of reasonableness under prevailing professional norms. In so
doing, the defendant must overcome a strong presumption that
counsel's performance constituted sound trial strategy.
Strickland, supra at 690-691; People v Stanaway, 446 Mich 643,
687; 521 NW2d 557 (1994).
To prove felony murder on an aiding and abetting theory,
the prosecution must show that the defendant (1) performed
acts or gave encouragement that assisted the commission of the
killing of a human being, (2) with the intent to kill, to do
great bodily harm, or to create a high risk of death or great
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bodily harm with knowledge that death or great bodily harm was
the probable result, (3) while committing, attempting to
commit, or assisting in the commission of the predicate
felony. People v Carines, 460 Mich 750, 755; 597 NW2d 130
(1999).
In order to satisfy the malice standard required under
People v Aaron, 409 Mich 672, 299 NW2d 304 (1980), the
prosecution must show that the aider and abettor either
intended to kill, intended to cause great bodily harm, or
wantonly and willfully disregarded the likelihood that the
natural tendency of his behavior was to cause death or great
bodily harm. Further, if an aider and abettor participates in
a crime with knowledge of the principal's intent to kill or to
cause great bodily harm, the aider and abettor is acting with
"wanton and willful disregard" sufficient to support a finding
of malice. See id. at 733; People v Kelly, 423 Mich 261; 378
NW2d 365 (1985).
Viewing the evidence in a light most favorable to the
prosecution, we conclude that a rational juror could find that
the elements of felony murder were proved beyond a reasonable
doubt on an aiding and abetting theory. Defendant’s statement
to the police indicates that Ware strangled the victim twice.
After the victim had been strangled, defendant heard a knock
on the door. Assuming arguendo that defendant was initially
unaware of Ware’s intent to kill or cause great bodily harm,
he certainly became aware of Ware’s intent after the
strangling incidents. Eyewitness testimony indicates that
defendant participated in the crime by engaging in the
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larceny. In addition, Gloria Hollis’s testimony indicates
that defendant performed acts that assisted the commission of
the murder. Defendant’s acts at the apartment door possibly
precluded the provision of medical assistance to the victim
while he was still alive, hampered detection of the murder, or
facilitated defendant and Ware’s escape.
Because the prosecution submitted sufficient evidence,
which included the defendant’s own incriminating statement
corroborating his participation in the murder as an aider and
abettor, defense counsel was not ineffective for failing to
make a motion for a directed verdict. Because counsel's
performance was not deficient, defendant is unable to satisfy
the first prong of Strickland and Pickens. Ineffective
assistance of counsel cannot be predicated on the failure to
make a frivolous or meritless motion. People v Darden, 230
Mich App 597, 605; 585 NW2d 27 (1998); People v Gist, 188 Mich
App 610; 470 NW2d 475 (1991).5
IV. Conclusion
Because defendant was not denied the effective assistance
of counsel on the basis of counsel’s failure to seek a
directed verdict, we reverse the judgment of the Court of
Appeals and reinstate defendant’s conviction of felony murder.
Maura D. Corrigan
Michael F. Cavanagh
5
In addition, the law-of-the-case doctrine does not
preclude this Court from considering the sufficiency of the
prosecution’s proofs. Where a case is taken on appeal to a
higher appellate court, the law announced in the higher
appellate court supersedes that set forth in the intermediate
appellate court. Johnson v White, 430 Mich 47; 420 NW2d 87
(1988).
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Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
8