Opinion
No. 330021
01-24-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AKRAM RAHAM BILAL, Defendant-Appellant.
UNPUBLISHED Jackson Circuit Court
LC No. 14-004630-FC Before: M. J. KELLY, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.
Defendant, Akram Raham Bilal, was convicted by a jury of second-degree murder, MCL 750.317; concealing the death of an individual, MCL 333.2841(3); felon in possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). The trial court sentenced Bilal as a third-offense habitual offender, MCL 769.11, to 30 to 60 years' imprisonment for his second-degree murder conviction, 6 to 10 years' imprisonment for his concealing the death of an individual conviction, 6 to 10 years' imprisonment for his felon-in-possession conviction, and two years' imprisonment with credit for 475 days served for each of his felony-firearm convictions. The sentences for his felony-firearm convictions are concurrent to each other, but consecutive to his remaining convictions. Bilal appeals as of right. Because there were no errors warranting either a new trial or resentencing, we affirm.
I. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Bilal argues that the evidence was insufficient to support his second-degree murder conviction. This Court "review[s] de novo a challenge to the sufficiency of the evidence." People v Henry (After Remand), 305 Mich App 127, 142; 854 NW2d 114 (2014). "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
B. ANALYSIS
"The elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998). "[M]alice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm." People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980). "Intent to kill may be inferred from all the facts in evidence, including the use of a deadly weapon." People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014). "Minimal circumstantial evidence is sufficient to show an intent to kill, and that evidence can include a motive to kill, along with flight and lying, which may reflect a consciousness of guilt." Id.
Bilal asserts that the prosecution failed to prove the element of malice. However, the evidence showed that Violet McElroy died after she was shot in the head, cheek, chest, and back with a bolt action rifle. The bolt action rifle could not fire multiple shots unless the shooter took a series of manual steps in between each shot to prepare the rifle to fire the next shot. Thus, it was reasonable for the jury to infer that Bilal intended to fire the rifle at McElroy multiple times and that his actions demonstrated an intent to do great bodily harm, Aaron, 409 Mich at 728, or "[t]he intent to do an act in obvious disregard of life-endangering consequences," Goecke, 457 Mich at 466. Moreover, Bilal admitted that he took McElroy's body to the dumpster, disposed of the rifle in a garbage can, and lied to the police about the events of that night, all of which may "reflect a consciousness of guilt." See Henderson, 306 Mich App at 11. Considering all of the facts surrounding the killing, there is more than "minimal circumstantial evidence" from which a reasonable jury could infer that Bilal acted with malicious intent. Id.; see also People v Bulls, 262 Mich App 618, 627; 687 NW2d 159 (2004) (concluding that "malice can be inferred from the use of a deadly weapon," where a shotgun was used to commit the murder).
Bilal also argues that there was insufficient evidence to support a finding that he acted without justification or excuse. He testified that after an argument, McElroy came at him with a rifle, that they struggled, and that the rifle went off. He asserted that his body "went into some kina mode," and that after that McElroy was lying dead on the ground. He argues that his testimony shows he was acting under provocation or that the death was accidental.
However, "[i]t is the jury's task to weigh the evidence and decide which testimony to believe." People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008) (citation omitted). Here, there was sufficient evidence for a jury to conclude that, contrary to Bilal's testimony, he did not act with justification or excuse. First, a police officer testified that he did not see any signs of injury to Bilal's hands or feet that would indicate involvement in a physical struggle. Second, another officer testified that the interior of Bilal's apartment was messy, but that the mess appeared to be something that had been accumulating. The officer testified that there were no smashed items or pieces of overturned or broken furniture that would have indicate that a struggle occurred. Third, as noted above, McElroy was shot four times with a bolt action shotgun. The medical examiner testified that the gunshot wound to the top of McElroy's head was lethal, would have killed her within seconds or minutes, and would have caused her to lose consciousness and fall down. He also testified that the gunshot wound to McElroy's cheek had damaged her spinal cord and would have also caused her to fall immediately. The third gunshot wound perforated McElroy's left lung. The medical examiner testified that, although McElroy could have remained standing, she could have died within minutes from it. Finally, the fourth gunshot wound went through the aorta, the largest blood vessel in the body. The examiner testified that it was fatal and would have caused death within seconds or minutes. The examiner opined that McElroy was alive when she received each gunshot wound. Based on this evidence, there was sufficient evidence for the jury to find lack of justification or excuse.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to sustain Bilal's conviction for second-degree murder. Wolfe, 440 Mich at 515.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Bilal argues that he received ineffective assistance of counsel based on his trial lawyer's failure to request a jury instruction on the defense of accident. The trial court denied Bilal's motion for a new trial/evidentiary hearing. "When no Ginther hearing has been conducted, our review of the defendant's claim of ineffective assistance of counsel is limited to mistakes that are apparent on the record." People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
B. ANALYSIS
In order to establish that his lawyer was ineffective, Bilal must establish that his lawyer's "performance was below an objective standard of reasonableness under prevailing professional norms" and that, but for that deficient performance "the result of the proceedings would have been different." People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). We presume that a defense lawyer provided effective assistance, and "[t]he defendant bears a heavy burden of proving otherwise." People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). We will not assess a trial lawyer's competence with the benefit of hindsight, nor will we second-guess counsel on matters of trial strategy. People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015) (quotation marks and citation omitted).
"A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her." People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). "Jury instructions must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories that are supported by the evidence." Id. In denying Bilal's motion for an evidentiary hearing or a new trial based on ineffective assistance, the trial court reasoned:
we had the demonstration a couple times of the rifle and doing exactly what you just did here, showing me—it had to manually open and close it multiple times, which would make just the one shot. If it was one shot, I would totally agree with counsel. It was not one shot. It was four shots, each requiring the—after the first
shot, requiring the opening and closing of the rifle. I don't even think an accident instruction in this case would have been appropriate. Wasn't asked for and the motion's denied.Based on the record before us, the trial court did not clearly err in finding that the defense of accident would not have applied even if it had been requested. McElroy received four gunshot wounds: one to the top of her head, one to her left cheek, one to her upper left chest, and one to the middle of her back. There is no dispute that she was shot by Bilal with a .22 caliber bolt action rifle. A bolt action requires the shooter to manually pull the bolt back and push it forward in between each shot in order to unload and load the rifle before another shot can be fired. Thus, as found by the trial court, it is possible for one shot to be fired accidentally from a bolt action rifle, but deliberate human action is required before a person can fire additional shots from it. Thus, an accident instruction would have been inappropriate in this case because the evidence does not support a conclusion that Bilal fired the rifle accidentally, i.e. unexpectedly, by chance, or by mishap. See People v Hess, 214 Mich App 33, 37; 543 NW2d 332 (1995) (defining "accident"). Because an accident instruction was not appropriate in this case, we conclude that Bilal's trial lawyer was not ineffective for failing to request it.
I'm not going to have an evidentiary hearing on this.
III. SENTENCING
A. STANDARD OF REVIEW
Bilal next argues that the trial court improperly scored offense variables (OVs) 3 and 6. Issues that involve "the proper interpretation and application of the legislative sentencing guidelines, MCL 777.11 et seq. . . . are legal questions that this Court reviews de novo." People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). "Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
B. ANALYSIS
1. OV 3
OV 3 addresses physical injury to the victim. MCL 777.33. A trial court must assess 25 points if a victim received a "[l]ife threatening or permanent incapacitating injury occurred to a victim." MCL 777.33(1)(c). In People v Houston, 473 Mich 399, 401-402; 702 NW2d 530 (2005), our Supreme Court held that 25 points were properly assessed for OV 3 where the defendant was convicted of second-degree murder because in the process of killing the victim the defendant "caused a physical injury—a gunshot wound to the head." Similarly, in this case, when Bilal killed McElroy, he caused multiple physical injuries—a gunshot wound to the top of her head, her cheek, her chest, and her back. As such, the trial court did not err in assessing 25 points for OV 3.
Bilal argues that Houston was wrongly decided for the reasons stated in Justice CAVANAGH'S dissent. See Houston, 473 Mich at 410 (CAVANAGH'S, J., dissenting). However, "[i]t is the Supreme Court's obligation to overrule or modify case law if it becomes obsolete, and until this Court takes such action, the Court of Appeals and all lower courts are bound by that authority." Associated Builders & Contractors v City of Lansing, 499 Mich 177, 192-193; 880 NW2d 765 (2016) (citation omitted). --------
2. OV 6
OV 6 addresses an offender's intent to kill. MCL 777.36. A trial court must assess 25 points if "[t]he offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result." MCL 777.36(1)(b). When scoring OV 6, a trial court must "score this variable consistent with a jury verdict unless the judge has information that was not presented to the jury." MCL 777.36(2)(a). Here, the judge and the jury had the same information. The trial court assessed 25 points for OV 6, reasoning that the fact that McElroy was shot four times with a bolt action rifle showed that "there was a high risk of death or great bodily harm knowing that death or great bodily harm was a probable result." Nevertheless, Bilal argues that 10 points should have been assessed pursuant to MCL 777.36(1)(c), which applies when "[t]he offender had intent to injure or the killing was committed in an extreme emotional state caused by an adequate provocation and before a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreasonable disregard for life" or "if a killing is intentional within the definition of second degree murder or voluntary manslaughter, but the death occurred in a combative situation or in response to victimization of the offender by the decedent." MCL 777.36(1)(c) and (2)(b). The language describing when 10 points should be assessed is consistent with the mental states for manslaughter. See People v Mendoza, 468 Mich 527, 535; 664 NW2d 685 (2003) ("[T]o show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions."). However, the jury convicted Bilal of second-degree murder rather than voluntary manslaughter, thereby finding that Bilal acted with malice and rejecting his theory that his actions were the result of adequate provocation. The evidence that McElroy was shot four times by a bolt action rifle, supports the conclusion that Bilal intended to kill, intended to cause great bodily harm, or knowingly created a high risk of death or great bodily harm. It also supports the conclusion that Bilal was not adequately provoked and was not involved in a "combative situation" with McElroy, even though Bilal testified to the contrary. Thus, the trial court's determination was consistent with the jury verdict and supported by a preponderance of the evidence. The trial court did not clearly err by assessing 25 points for OV 6.
Because the trial court did not err in scoring OVs 3 and 6, Bilal is not entitled to resentencing.
IV. IMPARTIAL JURY
A. STANDARD OF REVIEW
Finally, Bilal argues in his Standard 4 brief that he was denied his right to an impartial jury and a fair trial because the trial court denied his challenge for cause to Juror Nine. "We review for abuse of discretion a trial court's rulings on challenges for cause based on bias." People v Williams, 241 Mich App 519, 521; 616 NW2d 710 (2000). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012). "This Court defers to the trial court's superior ability to assess from a venireman's demeanor whether the person would be impartial." Williams, 241 Mich App at 522.
B. ANALYSIS
"[A] criminal defendant has a constitutional right to be tried by an impartial jury." People v Miller, 482 Mich 540, 547; 759 NW2d 850 (2008) (citations omitted). "[J]urors are 'presumed to be . . . impartial, until the contrary is shown.' " Id. at 550. "The burden is on the defendant to establish that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt." Id.
During voir dire, the following exchange occurred between Bilal's trial lawyer and Juror Nine:
[Bilal's lawyer]: And understanding that, even though you've lost a child, you don't believe seeing the photographs and hearing the testimony in this case and hearing family members testify that that would have an effect on you?Bilal asserts this shows that the trial court was required to sustain his challenge for cause because Juror Nine's previous experience as a victim of domestic violence made her "biased for or against a party or attorney," MCR 2.511(D)(2), or "interested in a question like the issue to be tried," MCR 2.511(D)(12). However, in response to questioning by the court, Juror Nine stated that she had no hesitation at all about whether she could be fair and impartial. The trial court was in a position to observe Juror Nine's demeanor and all of her statements in context, and the trial court denied the challenge for cause after being satisfied that Juror Nine could be fair and impartial. The trial court's superior ability to determine whether a potential juror will be impartial is entitled to deference. Williams, 241 Mich App at 522. Moreover, "[a] juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he can render an impartial verdict, may not be challenged for cause." People v Roupe, 150 Mich App 469, 474; 389 NW2d 449 (1986); see also MCL 768.10. Therefore, Bilal has not met his burden of "establish[ing] that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt," Miller, 482 Mich at 550, and the trial court did not abuse its discretion by denying his challenge for cause, Williams, 241 Mich App at 521.
Juror Nine: I don't think so. To be honest, I—I don't know. It's been a long time, I don't think it would bother me.
Affirmed.
/s/ Michael J. Kelly
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien