Opinion
No. 350619
02-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BLAKE MORGAN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-000107-01-FC Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with the intent to do great bodily harm less than murder, MCL 750.84, felon in possession of firearm, MCL 750.224f, and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to 80 to 120 months' imprisonment for assault with the intent to do great bodily harm less than murder, one to five years' imprisonment for felon in possession of firearm, and two years' imprisonment for each count of felony-firearm. We affirm.
I. FACTUAL BACKGROUND
In fall of 2018, Christopher Johnson loaned defendant, his cousin, $500 or $600 with the expectation that defendant would pay Johnson back. On October 25, 2018, after several prior discussions about repayment, Johnson told defendant that he needed to pay Johnson back the next day. On October 26, 2018, Johnson drove to defendant's apartment around 4:30 p.m., to retrieve his money. However, defendant was not home and did not answer Johnson's calls or text messages, so Johnson went home. Later that night, around 11:30 p.m., Johnson drove back to defendant's apartment to attempt to speak to defendant in person again. When Johnson arrived, defendant was standing in the street in front of his apartment with the mother of his child, Skye Washington. Johnson stopped next to defendant and asked defendant why he was ignoring Johnson and, when defendant did not answer, Johnson got out of his car. As Johnson walked around the front of his car toward defendant, defendant shot Johnson three times. Johnson was unarmed and approximately 8 or 11 feet away from defendant at the time. When defendant stopped shooting, Johnson got into his car and attempted to drive himself to the hospital, but crashed into a parked car.
II. SELF-DEFENSE
Defendant first argues that the prosecution failed to disprove, beyond a reasonable doubt, his claim of self-defense or defense of another. We disagree.
This Court reviews a challenge to the sufficiency of the evidence de novo. People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). To determine whether there was sufficient evidence presented to support a conviction, this Court considers whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). This standard of review is deferential and the evidence is to be viewed in the light most favorable to the prosecution. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Furthermore, circumstantial evidence and all reasonable inferences drawn therefrom can constitute sufficient proof of the elements of a crime. Id.
"[O]nce the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which the jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution bears the burden of proof to exclude the possibility that the killing was done in self-defense." People v Dupree, 486 Mich 693, 709-710; 788 NW2d 399 (2010) (citations and quotations omitted). MCL 780.972(1) governs the right to use force in self-defense or in defense of another and provides:
An 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 . . .See People v Stevens, 306 Mich App 620, 629-630; 858 NW2d 98 (2014) (analyzing MCL 780.972(1) and concluding that the prosecution presented sufficient evidence to disprove the defendant's claim of self-defense), and People v Guajardo, 300 Mich App 26, 41-45; 832 NW2d 409 (2013) (analyzing MCL 780.972(1) and concluding that, while a felon possessing a firearm is not precluded from asserting self-defense, no evidence was presented to support the defendant's claim of self-defense). " 'A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.' " Dupree, 486 Mich at 707, quoting People v Heflin, 434 Mich 482, 503, 456 NW2d 10 (1990).
(a) The 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 or herself or to another individual.
Defendant did not satisfy the initial burden of producing some evidence from which the jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist. Dupree, 486 Mich at 709. Johnson testified that when he stopped to talk to defendant, he did not threaten defendant, brandish any weapon, or insinuate that he had a weapon. Similarly, Washington testified that Johnson did not yell at defendant, did not run at defendant, and did not have anything in his hands.
Defendant admitted that he shot Johnson from a distance of approximately 11 feet away and conceded that Johnson did not yell at him, threaten him, run toward him, or lunge at him, and was not holding a weapon. Defendant explained, however, that he believed that Johnson was going to hurt or kill him because he had been avoiding Johnson's calls and text messages and Johnson had his hands in his pockets as he walked around his car. Defendant also testified that in August 2018, Johnson loaned defendant money with the expectation that defendant would return the loan. Defendant admitted he did not return the loan and testified that Johnson sent defendant numerous text messages demanding that defendant pay him back and threatened to "kill" defendant if he continued to avoid Johnson. Notably, however, defendant testified that despite the threats, Johnson did not hurt defendant, but rather, forgave defendant for not returning the money and agreed to "work it out" because they were family. Thus, defendant's claim that he feared Johnson would kill him is specious.
Additionally, defendant admitted that he did not know why he did not simply walk away when Johnson got out of his car. He also admitted that after he shot Johnson, he went into his apartment and, from his balcony, watched the police and ambulance arrive and take care of Johnson. At no time did defendant try to assist Johnson or advise the police of what had occurred. Instead, defendant remained in his apartment and gave the gun which he shot Johnson with to his uncle.
The credibility of the testimony of defendant, Johnson, and Washington is a question for the jury. People v Hieu Van Hoang, 328 Mich App 45, 68; 935 NW2d 396 (2019) (noting that matters of witness credibility fall within the province of the jury). This Court has repeatedly recognized that " 'this Court should not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses.' " People v Muhammad, 326 Mich App 40, 60; 931 NW2d 20 (2018), quoting People v Lee, 243 Mich App 163, 167; 622 NW2d 71 (2000). Therefore, on the basis of the evidence presented, the prosecution provided sufficient evidence to disprove beyond a reasonable doubt defendant's claim of self-defense or defense of others.
III. SUBSTITUTE COUNSEL
Defendant argues that the trial court abused its discretion by failing to adequately investigate the nature of defendant's allegations of a breakdown in the attorney-client relationship and by refusing to appoint substitute counsel. We disagree.
This Court reviews a trial court's decision regarding substitution of counsel for an abuse of discretion. People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011). A trial court abuses its discretion when its decision falls outside the range of principled and reasonable outcomes. Id.
"An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced." People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). "Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process." Id. "Good cause may exist when 'a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic,' when there is a 'destruction of communication and a breakdown in the attorney-client relationship,' or when counsel shows a lack of diligence or interest." People v McFall, 309 Mich App 377, 383; 873 NW2d 112 (2015) (citations omitted). Decisions about defense strategy that are not fundamental in nature, such as what evidence to present, what arguments to make, or disagreements regarding trial strategy or professional judgement do not warrant the appointment of substitute counsel. Strickland, 293 Mich App at 398. "A mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason, does not amount to adequate cause. Likewise, a defendant's general unhappiness with counsel's representation is insufficient." Id. Furthermore, a breakdown in the attorney-client relationship that was purposefully caused by the defendant refusing to cooperate with his assigned counsel does not constitute good cause for a substitution of counsel. Traylor, 245 Mich App at 462.
During a pretrial hearing, on February 28, 2019, defendant requested that the trial court appoint him substitute counsel because defendant did not believe that his trial counsel was "working for him." Defendant asserted that his trial counsel had not maintained communication with him, cursed at him, did not provide him with his discovery packet or transcripts of the prior hearings, and defendant did not know the name of his trial counsel. Defendant's trial counsel moved to withdraw as defendant's counsel and explained that there may have been a breakdown in the attorney-client relationship because he had used some "choice words" with defendant after a hearing. Defendant's trial counsel also admitted that he had been busy with other cases, but explained that he was communicating with defendant's family. The trial court ordered defendant's trial counsel to ensure that there are open lines of communication with defendant and to provide defendant with the discovery packet and pretrial transcripts. The trial court explained that it believed those orders could ameliorate defendant's concerns about a breakdown in the attorney-client relationship, but informed defendant that to raise the issue at the next hearing if his concerns persisted. Defendant never raised the issue again and, in fact, testified that he was satisfied with the advice of his trial counsel when placing his desire to go to trial on the record.
Defendant's grievance centered on a lack of communication between him and his trial counsel. Defendant did not assert to the trial court, or on appeal, that he and his trial counsel had a legitimate difference of opinion regarding a fundamental trial tactic. Moreover, after his initial complaint regarding his lack of communication with his trial counsel, defendant made no further complaints about his trial counsel and stated that he was, in fact, satisfied with the advice of his trial counsel. Thus, defendant failed to establish good cause for substitution of counsel, the threshold necessary for the substitution of counsel. Strickland, 293 Mich App at 397.
Additionally, while the trial court's denial of defendant's request for substitute counsel and defendant's trial counsel's motion to withdraw lacked specific findings of fact, the trial court adequately inquired into defendant's reasons for his dissatisfaction with his trial counsel. The trial court gave defendant an opportunity to place his complaints about his trial counsel's alleged inadequacies on the record. The trial court addressed those inadequacies, proposed a solution for defendant's concerns, and gave defendant an opportunity to follow up with his complaint if the trial court's solutions did not remedy trial counsel's alleged inadequacies. Accordingly, it was not an abuse of discretion for the trial court to conclude that good cause did not exist to warrant the appointment of substitute counsel, and it was not an abuse of discretion for the trial court to deny defendant's motion for substitute counsel.
IV. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor's characterization of the defense strategy as a "shell game" and defense counsel's arguments as "mere distractions" during his rebuttal closing argument impermissibly denigrated the defense. Defendant further argues that his counsel's failure to object to the improper conduct. We disagree on both arguments.
To preserve a claim of prosecutorial misconduct, the defendant must timely and specifically object to the alleged misconduct and request a curative instruction at trial. People v Mullins, 322 Mich App 151, 172; 911 NW2d 201 (2017) (quotation marks and citations omitted). Defendant did not object to the alleged incidents of prosecutorial misconduct or request curative instructions during the prosecutor's closing argument. Therefore, this issue is not preserved for appellate review. Id.
"Claims of prosecutorial misconduct are generally reviewed de novo to determine whether the defendant was denied a fair trial." People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 (2013). However, because this issue has not been preserved for review, this Court must review the unpreserved claim for plain error affecting defendant's substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). To avoid forfeiture, the defendant must demonstrate that " '1) error must have occurred, 2) the error was plain i.e., clear or obvious, 3) and the plain error affected substantial rights.' " People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceeding." Id. Even if all three requirements are met, reversal is only warranted when the plain error resulted in an innocent defendant's conviction, or it "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." People v Moorer, 262 Mich App 64, 75; 683 NW2d 736 (2004).
To preserve a claim of ineffective assistance of counsel for appellate review, a defendant must move in the trial court for a new trial or for a Ginther hearing. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973); People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014). Failure to move for a new trial or for a Ginther hearing limits this Court's review to mistakes that are apparent in the appellate record. People v Foster, 319 Mich App 365, 390; 901 NW2d 127 (2017) (citations omitted). "If the record does not contain sufficient detail to support defendant's ineffective assistance claim, then he has effectively waived the issue." Id. Defendant did not move in the trial court for a new trial or a Ginther hearing. Therefore, review is limited to the existing record. Foster, 319 Mich App at 390.
"[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). "Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64. This is because "[t]he propriety of a prosecutor's remarks depends on all of the facts of the case." Id. (quotation marks and citations omitted). Prosecutors are afforded great latitude regarding their arguments. People v Caddell, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket Nos. 343750 and 343993); slip op at 19. In making those arguments, "[a] prosecutor may not make a factual statement to the jury that is not supported by the evidence, but he or she is free to argue the evidence and all reasonable inferences arising from the evidence as they relate to his or her theory of the case." Dobek, 274 Mich App at 66 (quotation marks and citations omitted). Additionally, the prosecutor need not speak in the blandest terms possible. Id. However, a prosecutor may not suggest that defense counsel intentionally attempted to mislead the jury because doing so suggests that defense counsel does not believe his own client, and such argument undermines the defendant's presumption of innocence by shifting the focus from the evidence to the defense counsel's personality. People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010).
Defendant asserts that the prosecutor went through defense counsel's closing argument and pointed out the weaknesses within that argument and referred to portions of the argument as "distractions." The prosecutor began his rebuttal closing argument by stating, the following:
I respect [defense counsel] and I like him. He has a tough job, I get it, as a defense attorney.The prosecutor then went on to argue that defense counsel's closing argument focused on matters extraneous to the elements of the crimes charged, such as the fact that law enforcement did not use facial technology to track down any potential witnesses of the incident. The prosecutor argued defense counsel's focus on the investigation was a distraction. The prosecutor also argued that defense counsel's argument, that the prosecution was withholding evidence from the jury, was erroneous. The prosecution argued that defense counsel was attempting to distract the jury by making an issue of the fact that the prosecution did not intend to admit all 32 crime scene photographs, but rather, only the relevant photographs, and did not offer Johnson's medical records, despite the fact that it was undisputed that Johnson sustained gunshot wounds, showed the jury where he was shot, and was seen profusely bleeding in Detroit Police Officer Austin Long's body-camera footage.
There's an old saying that kind of floats around the halls of defense attorney's offices. The saying goes something like this:
If the facts aren't on your side then you argue the law. If the law isn't on your side then you argue the facts. Now if the law or the facts aren't on your side, you bang on the table and you cause a distraction. It's like a shell game.
[Defense counsel] stood up here before you for about 40 minutes. He spent about six minutes talking about what actually transpired on October 26th, 2018 [sic]. There's a reason for that, ladies and gentlemen. There's a reason and it's apparent. It's totally apparent.
While the prosecutor repeatedly characterized the defense's arguments as distractions, the prosecutor was not suggesting that defense counsel distrusted defendant. Fyda, 288 Mich App at 461. Rather, the prosecutor's comments properly addressed the weaknesses of defendant's theory of defense and its focus on matters extraneous to the facts of the case. When considering the comments in context, the prosecutor's comments were responsive to defense counsel's closing argument. Therefore, the mere fact that the prosecutor employed colorful rhetoric, does not render the prosecutor's argument during rebuttal closing argument improper.
Even if the prosecutor's statements during closing argument were somehow improper, they were not unduly prejudicial and did not affect defendant's substantial rights under a plain-error analysis. Carines, 460 Mich at 763. The trial court instructed the jury that "[t]he lawyers' statements and their arguments are not evidence" and that it was their duty to assign weight and credibility to the evidence admitted at trial. Jurors are presumed to follow the court's instructions, and instructions are presumed to cure most errors. People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). Therefore, the challenged portions of the prosecutor's rebuttal closing argument do not require reversal under a plain-error analysis because the statements were not outcome determinative and the court's instructions cured any potential prejudice.
With respect to defendant's claim that defense counsel should have objected to the prosecutor's rebuttal statements, we note that the effective assistance of counsel is presumed, and a defendant bears the burden to overcome the strong presumption that the assistance of his counsel was sound trial strategy. People v Rosa, 322 Mich App 726, 741; 913 NW2d 392 (2018). "In order to obtain a new trial, a defendant must show " '(1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different.' " People v Trakhtenberg, 493 Mich 38, 51-52; 826 NW2d 136 (2012).
The challenged portions of the prosecutor's rebuttal closing argument were not improper. Counsel is not ineffective for failing to raise a futile objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) ("[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.") Moreover, defense counsel's decision not to "raise objection, especially during closing argument, can often be consistent with sound trial strategy." Unger, 278 Mich App at 242. Finally, defendant failed to establish that, but for defense counsel's failure to object, a reasonable probability exists that the outcome would have been different. Sufficient evidence was presented from which the jury could find defendant guilty of the charged crimes.
V. JURY INSTRUCTION
Defendant lastly argues that the trial court erred by instructing the jury on flight because there was no evidence to support the instruction. We disagree.
"When reviewing a claim of instructional error, this Court views the instructions as a whole to determine whether the issues to be tried were adequately presented to the jury." People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014). "This Court reviews for an abuse of discretion the trial court's decision regarding the applicability of a jury instruction to the facts of a specific case." Id. "The trial court abuses its discretion when its outcome falls outside the range of principled outcomes." Id.
"A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." Id. at 239 (quotation marks and citations omitted). The jury instructions must be supported by a rational view of the evidence and "must include all elements of the crime charged, and must not exclude from the jury consideration material issues, defenses, or theories if there is evidence to support them." Id. at 240 (quotation marks and citations omitted). Additionally, "[t]he trial court may issue an instruction to the jury if a rational view of the evidence supports the instruction." Id., citing MCL 768.29; see People v Riddle, 467 Mich 116, 119-120; 649 NW2d 30 (2002).
Relevant to the instant matter, evidence of flight is generally admissible to prove consciousness of guilt. People v McGhee, 268 Mich App 600, 613; 709 NW2d 595 (2005), citing People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). "The term 'flight' has been applied to such actions as fleeing the scene of the crime, leaving the jurisdiction, running from the police, resisting arrest, and attempting to escape custody." Id. at 4.
The trial court instructed the jury, in relevant part, as follows:
There has been some evidence that the Defendant tried to run away, tried to hide, ran away or hid after the alleged crime. This evidence does not prove guilt. A person may run or hide for innocent reasons, such as panic, mistake or fear; however, a person may also run or hide because of a consciousness of guilt. You must decide whether the evidence is true and if true whether it shows that the Defendant had a guilty state of mind.
Despite defendant's argument on appeal, evidence was presented that defendant left the scene and hid from the police after shooting Johnson. Defendant testified that, after he shot Johnson, he went into his apartment and remained there while the police responded to the shooting and car accident. Defendant explained that he did not come out of his apartment and speak to the police because he was scared of "the police or whatever." Johnson similarly testified that, as defendant shot him, defendant walked toward the door of his apartment. Because evidence was presented that defendant fled from the scene of the crime, went into his apartment, and remained there while he watched the police respond to the incident from his balcony, the trial court did not err by instructing the jury on flight.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron