Opinion
352596
04-13-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTWAN RAVELL FLEMING, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-004889-01-FC
Before: CAMERON, P.J., and JANSEN and BORRELLO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, 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) (second offense), MCL 750.227b. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 35 to 50 years' imprisonment for second-degree murder, one to five years' imprisonment for felon-inpossession, and five years' imprisonment for each felony-firearm conviction. We affirm.
On the day of the murder, defendant had recently gotten home from work, went inside to clean up, and came back outside a few minutes later to find his wife, Chamia Fleming, arguing with the victim, Ronnie Byrd, who was returning to his car to leave the premises. Defendant subsequently engaged in a verbal dispute with the victim and punched the victim in the face. In response, Alicia Byrd, the victim's wife, came over and hit defendant on the head with a glass bottle. Defendant and the victim began physically fighting and, at some point, one of the men produced a gun, and the victim was shot multiple times from the front and back. Defendant fled the scene. Defendant first sought refuge at his grandmother's house, but two days later four shots were fired into her picture window, forcing defendant to relocate. Defendant went home, but within a couple of days a firebomb was thrown through defendant's window. Defendant went to a third location where he was eventually apprehended. The trial court noted these two instances of violence and admonished the audience present during the trial to refrain from any form of witness intimidation.
During trial, Lavenia Carrencejie testified as a res gestae witness who saw the scuffle and subsequent shooting from her car as she drove by. Carrencejie did not make herself available to be interviewed by either party before trial, and for the first time at trial mentioned that she had a patient in her car when she drove by. The trial court ordered the name of the patient be produced, but the prosecution was unable to procure the patient's name, despite diligent efforts. At trial, defense counsel did not request a jury instruction for voluntary manslaughter.
On appeal, defendant argues that he is entitled to a new trial because his trial counsel, Gary Jones, was ineffective for failing to request a jury instruction for the lesser included offense of voluntary manslaughter, failing to interview additional witnesses whose testimony may have helped defendant, and failing to request a mistrial despite allegations of witness intimidation. We conclude that defendant was not denied the effective assistance of counsel because Jones's performance was not deficient, nor did it prejudice defendant.
"A claim of ineffective assistance of counsel presents a mixed question of fact and constitutional law." People v. Isrow, 339 Mich.App. 522, 531; 984 N.W.2d 528 (2021) (quotation marks and citation omitted). "All findings of fact are reviewed for clear error, while the legal questions are reviewed de novo." Id. (quotation marks and citation omitted). Clear error exists where the reviewing court is left with a "definite and firm conviction" that the lower court made a mistake. Id. (quotation marks and citation omitted). Defendant argued in his motion for a new trial filed in the trial court that Jones was ineffective for failing to request an instruction for voluntary manslaughter and failing to interview witnesses. Therefore, these issues are preserved. See People v. Heft, 299 Mich.App. 69, 80; 829 N.W.2d 266 (2012). However, defendant raised his claim that Jones was ineffective for failing to request a mistrial based on witness intimidation for the first time on appeal. This unpreserved claim of ineffective assistance of counsel is reviewed for errors apparent on the record. People v. Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004).
A criminal defendant has the right to a fair trial which includes the right to effective assistance of counsel. Isrow, 339 Mich.App. at 531. "Trial counsel is ineffective when counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. (quotation marks and citation omitted). "Trial counsel's performance is presumed to be effective, and defendant has the heavy burden of proving otherwise." Id. "In order to obtain a new trial, a defendant must show that (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; 826 N.W.2d 136 (2012). "If counsel's strategy is reasonable, then his or her performance was not deficient." Isrow, 339 Mich.App. at 532 (citation omitted). When evaluating an ineffective assistance of counsel claim, there is a "strong presumption that trial counsel's decision-making is the result of sound trial strategy." Id. "A deficiency prejudices a defendant when there is a reasonable probability that but for trial counsel's errors, the verdict would have been different." Id. "[C]ounsel is not ineffective for failing to raise meritless or futile objections." People v. Putman, 309 Mich.App. 240, 245; 870 N.W.2d 593 (2015).
I. JURY INSTRUCTION FOR VOLUNTARY MANSLAUGHTER
Defendant argues that trial counsel's failure to request a jury instruction for voluntary manslaughter constituted deficient performance. Under MCL 768.32, a jury may find a defendant guilty of a lesser degree of the offense the defendant was charged with. People v. Mendoza, 468 Mich. 527, 531-532; 664 N.W.2d 685 (2003). Defendant was charged with first-degree murder. "[M]anslaughter is a necessarily included lesser offense of murder." Id. at 533. "Manslaughter is murder without malice." Id. at 534. Common-law voluntary manslaughter is defined as:
[T]he act of killing, though intentional, [is] committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition .... [Id. at 535 (quotation marks and citation omitted).]
"A defendant properly convicted of voluntary manslaughter is a person who has acted out of a temporary excitement induced by an adequate provocation and not from the deliberation and reflection that marks the crime of murder." Id. (quotation marks and citation omitted). "To prove that a defendant committed 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." People v. Mitchell, 301 Mich.App. 282, 286; 835 N.W.2d 615 (2013) (quotation marks and citation omitted). "However, provocation is not an element of voluntary manslaughter; rather, it is a circumstance that negates the presence of malice." Id. "When a defendant is charged with murder, the trial court must give an instruction on voluntary manslaughter if the instruction is supported by a rational view of the evidence." Id. (quotation marks and citation omitted).
For Jones's decision not to request an instruction for voluntary manslaughter to have constituted deficient performance, a rational view of the evidence must have supported an instruction for voluntary manslaughter. Id. Since voluntary manslaughter is murder without malice, a rational view of the evidence must have negated the presence of malice. Mendoza, 468 Mich. at 534. In other words, defendant had to show he was adequately provoked to justify a voluntary manslaughter instruction. See id. On appeal, defendant claims he was provoked to shoot the victim by Byrd hitting him on the head with the glass bottle, Byrd and the victim coming at him, and the victim fighting with him in the street. However, at trial, defendant testified that the victim was in full control of the gun and accidentally shot himself in the midst of their fight. Accordingly, Jones would have undermined defendant's testimony that he did not fire the gun by requesting a voluntary manslaughter instruction, thereby implying defendant did intentionally fire the gun, though adequately provoked to do so.
The decision not to request a lesser included offense instruction is a matter of trial strategy. People v. Smith, 336 Mich.App. 79, 104; 969 N.W.2d 548 (2021); see also Isrow, 339 Mich.App. at 532 (reasonable trial strategy does not constitute deficient performance, and there is a strong presumption trial counsel's strategy is reasonable). Defendant has failed to show Jones's decision not to undercut defendant's own testimony at trial was unreasonable. The defense's theory at trial was that the victim accidentally shot himself while fighting with defendant, not that defendant was provoked into shooting the victim. Therefore, it was reasonable for Jones not to request a voluntary manslaughter instruction, being the theory was that the victim shot himself. Defendant has not shown that this theory was unreasonable. Accordingly, in light of the presumption that Jones's strategy was reasonable, and defendant's testimony that the victim accidentally shot himself, Jones's strategic decision not to request a jury instruction for voluntary manslaughter did not constitute deficient performance.
Even if Jones could have requested the voluntary manslaughter instruction without undermining his trial strategy, a rational view of the facts would not have supported a voluntary manslaughter instruction because there was insufficient provocation to negate malice. See Mendoza, 468 Mich. at 545 ("An inferior-offense instruction is appropriate only when a rational view of the evidence supports a conviction for the lesser offense."). The "degree of provocation required to mitigate a killing from murder to manslaughter is that which causes the defendant to act out of passion rather than reason." Mitchell, 301 Mich.App. at 286-287 (quotation marks and citation omitted). "Further, in order for the provocation to be adequate it must be that which would cause a reasonable person to lose control." Id. at 287 (quotation marks, brackets, and citation omitted). Generally, insulting words are not adequate provocation to support an instruction for voluntary manslaughter. People v. Pouncey, 437 Mich. 382, 391; 471 N.W.2d 346 (1991).
Before defendant punched the victim, the victim called defendant's wife Fleming a "boojie fat b***h." Though offensive, this insult was insufficient to cause a reasonable person to lose control. Id. Defendant's arguments on appeal make a case for self-defense-the arguments explain the physical threat defendant encountered. However, the reasonableness of Jones's failure to request a voluntary manslaughter instruction did not rest on whether defendant acted out of selfdefense, but rather, on whether defendant was provoked to act out of the heat of passion. The type of mitigation from murder to voluntary manslaughter at issue in this case was not based on selfdefense, but rather, on provocation that causes someone to act out of passion, and lose control of their actions. Mitchell, 301 Mich.App. at 287. Rather than being based on a loss of control or emotional outburst, "the touchstone of any claim of self-defense, as a justification for homicide, is necessity." People v. Reese, 491 Mich. 127, 144; 815 N.W.2d 85 (2012) (quotation marks and citation omitted). Thus, the only provocation defendant could have pointed to was the victim's insult, which was insufficient to support a voluntary manslaughter instruction. Therefore, a rational view of the evidence would not have supported a request for a voluntary manslaughter instruction, making Jones's failure to request such an instruction reasonable. See Mitchell, 301 Mich.App. at 286.
II. INVESTIGATION OF WITNESSES
Defendant argues that Jones's performance was deficient because he failed to interview the neighbors, Sherry Bonney (defendant's mother-in-law), or the patient in Carrencejie's car. "[T]he failure to call a particular witness at trial is presumed to be a matter of trial strategy, and an appellate court does not substitute its judgment for that of counsel in matters of trial strategy." People v. Seals, 285 Mich.App. 1, 21; 776 N.W.2d 314 (2009); see also Isrow, 339 Mich.App. at 532. A trial court must determine "whether the strategic choices [were] made after less than complete investigation, and any choice is reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Counsel always retains the duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Trakhtenberg, 493 Mich. at 52 (quotation marks and citations omitted). For ineffective assistance of counsel claims premised on the failure to call witnesses, "a defendant must show that (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. Allen, 507 Mich. 856 (2021) (quotation marks and citation omitted). The "failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." People v. Russell, 297 Mich.App. 707, 716; 825 N.W.2d 623 (2012).
"Supreme Court orders that include a decision with an understandable rationale establish binding precedent." People v. Giovannini, 271 Mich.App. 409, 414; 722 N.W.2d 237 (2006).
In People v. Anderson, 322 Mich.App. 622, 630-631; 912 N.W.2d 607 (2018), the defendant's claim that his attorney was ineffective for failing to investigate the defendant's neighbors to determine whether they observed anything was rejected by this Court because the defendant provided no evidence in support of his assertion that his attorney failed to interview the neighbors. This Court held that the defendant failed to support his assertions because, "[o]n the record before the Court, it [was] just as likely that defense counsel did investigate these potential witnesses but found that their testimony would not be useful," as it was that counsel failed to investigate the witnesses. Id. at 630.
Like in Anderson, defendant did not provide proof that Jones failed to interview defendant's neighbors or Sherry. Without such proof, this Court is left in the same position as it was in Anderson. Therefore, we reject defendant's argument that Jones's performance was deficient because it was just as likely, based on the record, that Jones interviewed the neighbors and Sherry, and concluded that their potential testimony was not useful, as it was that Jones failed to interview these witnesses. As stated above, "the failure to call a particular witness at trial is presumed to be a matter of trial strategy, and an appellate court does not substitute its judgment for that of counsel in matters of trial strategy." Seals, 285 Mich.App. at 21; see also Isrow, 339 Mich.App. at 532. Thus, since defendant has failed to show Jones's trial strategy of not calling these witnesses was unreasonable, we presume Jones's strategy was reasonable, and accordingly, conclude that Jones's performance was not deficient in this respect.
Jones's failure to interview the patient who was riding with Carrencejie was not unreasonable because, despite diligent efforts, neither party was able to interview Carrencejie before trial as she made herself unavailable. This meant neither party had an opportunity to learn about the patient in Carrencejie's car before trial because the patient was first mentioned during Carrencejie's trial testimony. The trial court ordered the name of the patient be produced, but despite diligent efforts, the prosecution could not obtain the name of the patient. Since Carrencejie refused to make herself available for an interview prior to trial and the name of the patient was undiscovered even after diligent efforts to obtain it, Jones's failure to interview the patient did not constitute deficient performance. It was through no fault on Jones's behalf that the patient in Carrencejie's car was not available to be interviewed or testify.
Though it does not appear that Jones's performance was deficient, even if it was, defendant was not prejudiced thereby. On appeal, the only specific example of prejudice defendant provided was his claim that Jones's failure to interview Sherry prejudiced him because Sherry was aware of the victim's quick temper. Defendant did not make an offer of proof as to what the missing witnesses would have testified about or how their potential testimony would have benefited defendant, apart from the unsubstantiated claim that the victim had a quick temper and Sherry could have affirmed that. Therefore, defendant failed to provide the necessary factual predicate to establish the ineffective assistance of his trial counsel. See People v. Carbin, 463 Mich. 590, 601; 623 N.W.2d 884 (2001) (absent any evidence regarding the substance of the potential witness's testimony, the defendant failed to establish an ineffective assistance of counsel claim). "[T]he failure to interview witnesses does not itself establish inadequate preparation. It must be shown that the failure resulted in counsel's ignorance of valuable evidence which would have substantially benefited the accused." People v. Caballero, 184 Mich.App. 636, 642; 459 N.W.2d 80 (1990) (citation omitted). Even if Jones failed to interview the four witnesses defendant claimed he did, defendant has not shown that this failure prejudiced him because defendant has not shown there was missing information which would have substantially benefited him. The only missing information defendant points to on appeal was potential testimony about the victim's quick temper. However, defendant, Fleming, Byrd, and Sherry were all familiar with the victim and could have testified about his quick temper. Indeed, Fleming did testify that the victim "jumped" on her at a previous family party. Accordingly, even if Jones's failure to interview the missing witnesses was unreasonable, defendant has failed to show he was prejudiced thereby. See Trakhtenberg, 493 Mich. at 51 (a defendant must show a reasonable probability that, but for his counsel's deficient performance, the outcome of the trial would have been different).
III. MISTRIAL REQUEST FOR WITNESS INTIMIDATION
Defendant argues that alleged witness intimidation was an irregularity which entitled him to a mistrial "A mistrial should be granted only where the error complained of is so egregious that the prejudicial effect can be removed in no other way." People v. Caddell, 332 Mich.App. 27, 37; 955 N.W.2d 488 (2020) (quotation marks and citation omitted). "A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant . . . and impairs his ability to get a fair trial." People v. Alter, 255 Mich.App. 194, 205; 659 N.W.2d 667 (2003).
Defendant testified that shots were fired into his grandmother's home when he was staying there, and his own home was firebombed. Whether this was done in an attempt to intimidate potential witnesses is unknown. However, if it was, it failed because defendant and Fleming both testified at trial. Defendant claims the trial court acknowledged witness intimidation was taking place when it admonished the audience to refrain from intimidation. However, when the trial judge stated, "and, frankly, I've seen it," the trial judge was clearly talking about having seen prosecutors charge family members for witness intimidation, not about having seen witness intimidation in this case.
And I would expect the prosecutor's office to charge people in that regard. And I don't-- and, frankly, I've seen it. I've seen the prosecutor's office, even in a case where a defendant is charged with a homicide and a victim testifying on their defense, somebody from the victim's family were to threaten them. I've seen them charge members of the victim's family. I've seen them charge members of the
defendant's family. That would be obstruction of justice. And so understand that if that were to happen, that's what would be expected of the prosecutor's office.
Defendant was disingenuous when he argued on appeal that the trial judge observed witness intimidation by the victim's family in this case when she said, "frankly, I've seen it."
Regardless, defendant failed to show that Jones's failure to request a mistrial based on these two alleged instances of witness intimidation constituted deficient performance. Defendant has not shown any prejudicial effect the alleged intimidation had on the fairness of his trial, nor how such an effect would be cured by a mistrial. Defendant simply argues that because these two alleged instances occurred, he was entitled to a mistrial. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority." People v. Payne, 285 Mich.App. 181, 195; 774 N.W.2d 714 (2009) (quotation marks and citation omitted). Here, defendant has done both. The only part of this argument defendant cited authority for was the general proposition that a prejudicial irregularity at trial impairs a defendant's ability to get a fair trial. Defendant does not describe how the alleged witness intimidation prejudiced him, or more generally, how it affected any of the witnesses or potential witnesses. Defendant failed to show how the alleged intimidation prejudiced him, that Jones was ineffective for failing to request a mistrial, and that had Jones requested a new trial, that it probably would have affected the outcome of the trial. Therefore, defendant's argument that Jones was ineffective for failing to request a mistrial is unpersuasive. Since there is no error apparent on the record, defendant was not entitled to a mistrial for the alleged witness intimidation. See Matuszak, 263 Mich.App. at 48.
Affirmed.