Opinion
No. 338422
05-17-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LATASHA LANNETTE RAY, Defendant-Appellant.
UNPUBLISHED Kalamazoo Circuit Court
LC No. 2015-000634-FH Before: RONYANE KRAUSE, P.J., and MARKEY and RIORDAN, JJ. PER CURIAM.
Defendant, Latasha Lannette Ray, appeals by right her jury convictions for felon in possession of a firearm (felon-in-possession), MCL 750.224f and 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 a term of 1 to 7½ years' imprisonment for the felon-in-possession conviction, to be served consecutively to a term of two years' imprisonment for the felony-firearm conviction, with credit for 183 days served on the felony-firearm sentence. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
This case arises from an incident that occurred on November 8, 2014, when Daniel Anderson was shot and killed at the apartment he shared with Deanna Walker, defendant's cousin. Defendant was not charged with homicide; she was charged only with felon-in-possession and felony-firearm for possessing the pistol with which Anderson was shot and killed. Defendant conceded that she had previously been convicted of a felony that prohibited her from possessing a firearm and that she possessed a firearm on the date of Anderson's death. Defendant's defenses at trial were duress and self-defense. The issues on appeal are (1) whether the trial court should have instructed the jury on the defense of others component of self-defense; (2) whether defense counsel was ineffective for failing to request such an instruction, and (3) whether the sentence imposed by the trial court was proportionate to the offense and the offender. We affirm defendant's convictions and sentence.
II. JURY INSTRUCTIONS REGARDING SELF-DEFENSE
Defendant argues that the trial court erred in failing to instruct the jury regarding the defense of others component of self-defense. "The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." MCL 768.29. Therefore, in order to preserve a challenge to a trial court's jury instructions for appellate review, a party must object to or request an instruction before the trial court. People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). A defense counsel's affirmative statement that there were no objections to the jury instructions constitutes an express approval of the instructions that waives review on appeal. People v Matuszak, 263 Mich App 42, 57; 687 NW2d 342 (2004). In this case, the trial court read the jury instructions regarding self-defense defendant requested, and defendant expressed satisfaction with the instructions as read by the trial court. Thus, defendant's current challenge to the expressly approved jury instructions is waived.
III. INEFFECTIVE ASSISTANCE
Defendant next argues that trial counsel rendered ineffective assistance of counsel by failing to request that the trial court instruct the jury regarding the defense of others component of self-defense. Because defendant timely filed a motion for a new trial raising the issue of ineffective assistance of counsel, she has properly preserved the claim for appeal. Sabin, 242 Mich App at 658.
"The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). This determination requires a court to first find the facts and then determine whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). "Clear error exists if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id. "A trial court's decision to deny a motion for a new trial is reviewed for an abuse of discretion." People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). In addition, 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." People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014). A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes. Id.
Effective October 1, 2006, the Legislature enacted the Self-Defense Act (SDA), MCL 780.971 et seq., which "codified the circumstances in which a person may use deadly force in self-defense or in defense of another person without having the duty to retreat." People v Dupree, 486 Mich 693, 708; 788 NW2d 399 (2010). By its express terms, the SDA "does not diminish an individual's right to use deadly force or force other than deadly force in self-defense or defense of another individual as provided by the common law of this state in existence on October 1, 2006." MCL 780.974. Consequently, following the enactment of the SDA, self-defense remains available as a defense to a charge of felon-in-possession. See People v Guajardo, 300 Mich App 26, 40; 832 NW2d 409 (2013). See also People v Triplett, 499 Mich 52, 57; 878 NW2d 811 (2016) (noting that self-defense is available as an affirmative defense to a felon-in-possession charge "when the felon's temporary possession of a firearm was the result of an attempt to repel an imminent threat").
In Guajardo, 300 Mich App at 40, this Court ruled that a felon possessing a firearm may raise self-defense under the SDA, under certain circumstances:
[W]e hold that a felon possessing a firearm is not precluded from raising self-defense under the SDA when there is evidence that would allow a jury to conclude that criminal possession of a firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault to himself or to another.But when it applied that rule to the facts of the case before it, this Court held that "threats of future harm do not constitute imminent danger for purposes of self-defense." Id. at 42. This Court also held that "although defendant testified that he feared for his life, there was no evidence that defendant had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm." Id. at 42. Further, the "defendant was the aggressor who initiated the deadly confrontation and was not entitled to a self-defense instruction." Id. at 43.
A claim of self-defense requires that the defendant have an honest and reasonable belief that the defendant is in imminent danger of death or great bodily harm. Dupree, 486 Mich at 707. "The reasonableness of a person's belief regarding the necessity of deadly force 'depends on what an ordinarily prudent and intelligent person would do on the basis of the perceptions of the actor.' " Guajardo, 300 Mich App at 42, quoting People v Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011). "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." People v Heflin, 434 Mich 482, 503, 456 NW2d 10 (1990).
This Court reviews the instructions as a whole to determine whether the issues tried were adequately presented to the jury. Armstrong, 305 Mich App at 239.
A criminal defendant is entitled to have a properly instructed jury consider the evidence against him. The jury instructions must include all elements of the crime charged, and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them. The trial court may issue an instruction to the jury if a rational view of the evidence supports the instruction. [Id. at 239-240 (quotation marks and citations omitted).]
To be entitled to an instruction on an affirmative defense, the defendant must produce some evidence on all elements of the defense. Guajardo, 300 Mich App at 34-35. A verdict will not be set aside when the jury instructions, although imperfect, fairly presented the issues to be tried and adequately protected the defendant's rights. People v Henderson, 306 Mich App 1, 4; 854 NW2d 234 (2014). Defendant bears the burden of establishing that the asserted instructional error resulted in a miscarriage of justice. MCL 769.26.
In this case, the trial court denied defendant's motion for a new trial on the ground that the evidence did not warrant an instruction regarding the defense of others. The trial court specifically stated that it would not have given the instruction even if defendant specifically requested it. We conclude that the trial court did not abuse its discretion in determining that the evidence adduced at trial did not support giving an instruction as to the defense of others. Defendant repeatedly told police that she was not scared during the events that led up to Anderson's shooting. Furthermore, defendant never claimed, either in her multiple police interviews or in her trial testimony, that she feared for her life or that she was attempting to stop the decedent from harming himself or others. Because there was no evidence that defendant had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm, defendant was not entitled to the defense of others instruction. See Guajardo, 300 Mich App at 42-43.
To establish a claim of ineffective assistance of counsel, a defendant must prove that defense counsel's performance was objectively unreasonable in light of prevailing professional norms, and that, but for counsel's error, it is reasonably probable that the outcome would have been different. Trakhtenberg, 493 Mich at 51. Effective assistance of counsel is presumed, People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012), and a defendant bears a heavy burden of proving otherwise, People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). In doing so, a defendant must overcome a strong presumption that the challenged conduct might be considered sound trial strategy. Trakhtenberg, 493 Mich at 52. "[T]his Court neither substitutes its judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of counsel's competence with the benefit of hindsight." Matuszak, 263 Mich App at 58.
In her motion for new trial, defendant argued that trial counsel was ineffective in failing to specifically request that the trial court instruct the jury regarding defense of others. For the reasons set forth above, we conclude that the trial court did not abuse its discretion when it ruled that the evidence adduced at trial did not support the reading of a defense of others instruction. So, defense counsel's failure to request such an instruction was not ineffective. Furthermore, even if counsel erred in failing to request this instruction, this failure was not prejudicial to defendant. The jury heard multiple hours of defendant's recorded statements to police. During these interviews defendant repeatedly said that she was not scared while interacting with the decedent just before he was shot. In those interviews, defendant also repeatedly said that she and the decedent were joking around. Based on these facts, there was simply insufficient evidence to support a defense of others instruction; consequently, defense counsel's failure to request that instruction was not prejudicial to defendant. Therefore, we affirm defendant's convictions.
IV. SENTENCING
Defendant next argues that her sentence of 1 to 7½ years' imprisonment for the felon-in-possession conviction was disproportionate. We disagree.
A sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand. People v Kimble, 470 Mich 305, 310; 684 NW2d 669 (2004). "A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). "[T]he standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion." People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes. Armstrong, 305 Mich App at 239.
The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to a term of 1 to 7½ years' imprisonment for the felon-in-possession conviction, to be served consecutively to a term of two years' imprisonment for the felony-firearm conviction. Felon-in-possession is a Class E felony. MCL 777.16m. Defendant does not challenge the trial court's scoring of any of the sentencing guidelines variables that placed defendant in prior record variable level (PRV) C and offense variable (OV) level I, and the applicable minimum sentencing range was 0 to 9 months' imprisonment. MCL 777.66. However, because defendant was sentenced as a second-offense habitual offender, the upper limit of the recommended minimum sentence range increased by 25%. MCL 777.21(3)(a). Defendant argues that the recommended minimum guidelines range was 0 to 11 months' imprisonment and that defendant's minimum sentence of imprisonment for a minimum of one year qualifies as a slight, upward departure from the sentencing guidelines range.
Defendant does not contest her status as a second-offense habitual offender, MCL 769.10, and does not challenge her sentence for the felony-firearm conviction. --------
We conclude that the trial court did not abuse its discretion in sentencing defendant. Although the trial court engaged in a slight, upward departure from the recommended sentencing guidelines, the departure was proportionate to the offense and the offender. Defendant conceded that she knew she was not supposed to possess a gun, knew that she was not supposed to be at a location where a gun was present, and knew that she was not supposed to be around people who possessed a gun. Nonetheless, defendant chose to associate with a person known to habitually possess a gun, and who defendant knew had accidentally shot himself in the past. The trial court also correctly noted that defendant could have avoided the entire situation simply by leaving the bedroom where the gun was located. Finally, defendant concedes that she absconded during the pendency of these proceedings. For these reasons, we conclude that the trial court did not abuse its discretion when it imposed a minimum sentence that was a slight upward departure from the recommended minimum sentence range.
We affirm.
/s/ Amy Ronayne Krause
/s/ Jane E. Markey
/s/ Michael J. Riordan