Opinion
352620
08-10-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARLON TYRONE HARALSON, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-001872-01-FC
Before: Redford, P.J., and K. F. Kelly and Rick, JJ.
Per Curiam
Defendant appeals by right his jury trial convictions of first-degree premeditated murder, possession of a firearm during the commission of a felony ("felony-firearm"), and carrying a concealed weapon. Defendant was sentenced to life imprisonment for his first-degree murder conviction, two years' imprisonment for his felony-firearm conviction, and one to five years' imprisonment for his concealed weapons conviction. On appeal, defendant raises four ineffective assistance of counsel claims. As will be explained below, in all but one claim, we find no error; however, we remand the case to the trial court for an evidentiary hearing concerning defendant's ineffective assistance of counsel claim related to his attorney's failure to request a voluntary manslaughter instruction. We retain jurisdiction.
I. BASIC FACTS AND PROCEDURAL HISTORY
On February 17, 2019, a group of five people, including George Stokes, Anthony Hooks, and Jenna Fletcher, were driving to Hooks's house to drop him off after spending time together. During the car ride, Hooks and Fletcher-his girlfriend-got into a verbal and physical fight. When the group arrived at Hooks's house, Fletcher got out of the car and followed Hooks onto the front porch. Defendant came out of the house when the group arrived on the porch and got involved in the argument, after which defendant pushed Fletcher off the porch, causing her to fall to the ground and sustain injuries.
Stokes exited the car and began arguing with Hooks and defendant. Defendant stated "f*** you" to Stokes, who took off his coat and walked toward defendant. As Stokes was walking toward defendant, defendant took out a gun and shot Stokes, who fell to the ground. Defendant walked back to the porch, turned around, and shot Stokes again, shooting Stokes a total of five times. After defendant finished shooting, he said, "f*** him" and "I don't give a f*** about that n****." Soon after the shooting, defendant left the house and walked up the street. The police later pulled over the vehicle defendant was traveling in, found the gun stashed inside that belonged to defendant, and arrested him. Stokes was transported to a local hospital where he died from the gunshot wounds.
The jury found defendant guilty of first-degree murder, MCL 750.316, felony-firearm, MCL 750.227b, and illegally carrying a concealed weapon, MCL 750.227. Defendant was sentenced as noted earlier, and this appeal followed.
II. STANDARDS OF REVIEW
"A claim of ineffective assistance of counsel is a mixed question of law and fact." People v. Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008). "A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." Id. Clear error exists where the reviewing court is left with a "definite and firm conviction" that the lower court made a mistake. Id.
III. ANALYSIS
On appeal, defendant argues his trial attorney was ineffective for failing to (1) investigate and interview Hooks, (2) object to the exclusion of Stokes's criminal history, instead of stipulating to its exclusion; (3) object to the prosecutor's statements during closing argument about defendant's prearrest silence; and (4) request a manslaughter instruction. Defendant contends his attorney's ineffective assistance prejudiced him because, but for the alleged errors, there is a reasonable probability the outcome of his trial would have been different. We disagree with defendant's arguments except as they concern the manslaughter instruction.
A criminal defendant has the right to a fair trial which includes the right to effective assistance of counsel. People v. Isrow, 339 Mich.App. 522, 531; 984 N.W.2d 528 (2021). "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).
Defendant first argues his attorney's performance was deficient because the attorney failed to interview and present testimony from Hooks. "[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 (citation omitted) (holding that there is a "strong presumption that trial counsel's decision-making is the result of sound trial strategy."). 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.]
"[T]he failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." Id. (citation omitted).
Counsel's failure to interview Hooks and present his testimony at trial was reasonable because, despite diligent efforts by the police, Hooks could not be found prior to trial. Since Hooks was unavailable to be interviewed prior to trial, even after diligent efforts to find him, counsel's failure to interview Hooks and present his testimony did not constitute deficient performance because it was through no error on counsel's behalf that Hooks was unavailable to be interviewed or testify.
Defendant also contends his attorney's performance was deficient because the attorney did not attempt to contact Hooks. Defendant bears "the burden of establishing the factual predicate for his claim of ineffective assistance of counsel" but offers no proof for the claim that his attorney did not attempt to contact Hooks. See People v. Solloway, 316 Mich.App. 174, 189; 891 N.W.2d 255 (2016). Accordingly, the argument is rejected.
Next, defendant argues his attorney's performance was deficient because his attorney agreed to stipulate to the exclusion at trial of Stokes's criminal history and because he failed to seek admission of Stokes's prior bad acts. Defendant claims this evidence would have bolstered his self-defense argument because it would have supported defendant's claim that he had a reasonable belief that Stokes was going to harm or kill him. The evidence would have also shown, according to defendant, that Stokes was a violent person who was likely going to cause bodily harm if defendant did not defend himself. Defendant's argument is factually unfounded because his attorney did not stipulate to the exclusion of Stokes's criminal history and sought to admit some of Stokes's prior bad acts at a motion hearing before trial. Accordingly, we reject defendant's argument that trial counsel's performance was deficient because it is unsupported by the record. See Solloway, 316 Mich.App. at 189 (holding defendants have the burden of establishing the factual predicate underlying a claim of ineffective assistance of counsel).
Defendant also contends his attorney's performance was deficient because he failed to object to the prosecutor's closing argument in which defendant's prearrest silence was used as substantive evidence of his guilt. During closing argument, the prosecutor made the following statements about what defendant did after the shooting:
[Defendant] didn't stay and call the police and say, hey, I just shot somebody because I thought he was going to kill me. He fled the scene, got into a vehicle and by the grace of God that vehicle was pulled over by the police within minutes or we might not be here today, we might not have caught him. But when that vehicle is stopped what does the Defendant do? He hides that gun up under the passenger seat.
The prosecutor did not engage in misconduct during her closing argument. "Generally, prosecutors are accorded great latitude regarding their arguments and conduct." People v. Cooper, 309 Mich.App. 74, 90; 867 N.W.2d 452 (2015) (citation omitted). "A prosecutor's remarks are examined in context and evaluated in light of defense arguments and their relation to the trial evidence." People v. Chapo, 283 Mich.App. 360, 370; 770 N.W.2d 68 (2009). The prosecutor is "free to argue the evidence and all reasonable inferences arising from it as they relate to the theory of the case." Id. However, "where it would not have been natural for the defendant to contact the police-where doing so may have resulted in the defendant incriminating himself-the prosecution cannot properly comment on the defendant's failure to contact the police." People v. Gibbs, 299 Mich.App. 473, 483-484; 830 N.W.2d 821 (2013) (quotation marks and citation omitted; cleaned up).
At trial, the jury heard testimony that defendant left and walked up the street after he shot Stokes. The jury heard testimony that defendant did not contact the police or remain at the scene of the shooting. Instead, the police had to track down defendant in a vehicle leaving the area. During closing argument, the prosecutor argued that this evidence showed that defendant did not turn himself in after the shooting or contact the police. The prosecutor asserted that the reasonable inference arising from this evidence was that defendant had a consciousness of guilt and did not act justifiably in self-defense. See id. The prosecutor's statements about defendant's prearrest conduct fell within her "great latitude" to argue her theory of the case. See Cooper, 309 Mich.App. at 90. And there being nothing improper about the prosecutor's closing argument, trial counsel's performance was not deficient because of his failure to object to the prosecutor's comments. See Putman, 309 Mich.App. at 245 ("[C]ounsel is not ineffective for failing to raise meritless or futile objections.").
Because we conclude that defendant failed to show his trial attorney's performance was deficient for failing to object to the prosecutor's remarks, we likewise reject plaintiff's other argument that he was denied a fair trial as a result of the remarks.
Lastly, defendant argues his attorney's performance was deficient because his attorney did not request a manslaughter jury instruction. Under MCL 768.32(1), a jury may find a defendant guilty of a lesser degree of the offense the defendant is charged with. People v. Jackson, 313 Mich.App. 409, 421; 884 N.W.2d 297 (2015). Defendant was charged with first-degree murder, and "[m]anslaughter is a necessarily included lesser offense of murder." People v. Pennington, 323 Mich.App. 452, 464; 917 N.W.2d 720 (2018). "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." People v. Mitchell, 301 Mich.App. 282, 286; 835 N.W.2d 615 (2013).
In People v. Yeager,___ Mich___;___ N.W.2d___ (2023) (Docket No. 164055), the Michigan Supreme Court recently considered the question "whether defendant was denied the effective assistance of counsel by trial counsel's failure to request a voluntary manslaughter instruction at defendant's jury trial for the murder of her boyfriend." Yeager,___ Mich. at___; slip op at 1. The defendant was convicted of first-degree murder and felony-firearm after shooting her boyfriend following multiple instances of domestic violence perpetrated by the victim. Id. at___; slip op. at 2-3. The jury was instructed on first- and second-degree murder, but defense counsel did not request an instruction for manslaughter. Id. at___; slip op. at 3.
On appeal, this Court remanded the case for a Ginther hearing after which the trial court concluded that "had trial counsel requested a voluntary manslaughter instruction, a reasonable juror could have found that defendant was guilty of voluntary manslaughter rather than first-degree murder." Id. at___; slip op. at 4. The prosecutor appealed, and this Court reversed, concluding that because the jury rejected the second-degree murder charge in exchange for the first-degree murder charge, the defendant could not show she was prejudiced by her attorney's failure to request a manslaughter instruction. Id. at___; slip op. at 12-13.
People v. Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
The Michigan Supreme Court reversed, concluding that the defendant's attorney provided ineffective assistance of counsel and that counsel's errors prejudiced the defendant. Discussing the deficient performance prong, the Court framed the issue of performance as a misunderstanding by trial counsel of the law:
"[T]rial counsel appears to have believed that arguing self-defense to a murder charge would render defendant's actions unintentional and that a manslaughter instruction would not be applicable because only manslaughter would require an intentional act. However, this reasoning is inconsistent or based on a misunderstanding of the law. Murder as mitigated by self-defense and voluntary manslaughter are not distinguished by the element of intent because both contemplate an intentional action." Id. at___; slip op. at 8.
The Court concluded, therefore, that "[b]ecause trial counsel failed to appreciate the meaningful difference between the two charges, his explanation for why he failed to pursue a manslaughter instruction is legally incorrect." Id. at___; slip op. at 8. Thus, because trial counsel's "misunderstanding of the law led to the absence of a voluntary manslaughter instruction to which defendant was entitled, we conclude that trial counsel's performance fell below the objective standard of reasonableness required by Strickland [v. Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984)]." Yeager,___ Mich. at___; slip op. at 11.
Turning to prejudice, the Court instructed that the "reviewing court must consider the specific circumstances of the case in concert with the relevant offenses and ask whether the distinctions between the particular charges suggest that a jury's rejection of an intermediate charge demonstrates that the jury would have been unlikely to select a lesser charge." Id. at; slip op. at 14. "[W]hen considering whether a jury should have been instructed on a lesser included offense, appellate courts must consider whether, in light of the proposed defense theory and the factual elements of the relevant offense, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Id. at___; slip op. at 15-16 (quotation marks and citation omitted; emphasis added).
In explaining why defense counsel's error prejudiced the defendant, the Court stated:
In the instant case, the jury was instructed on first- and second-degree murder but not on voluntary manslaughter. First- and second-degree murder both include the element of malice aforethought. As noted in Part III(B) of this opinion, the distinction between murder and voluntary manslaughter is whether an intentional killing was provoked in a manner that explains or justifies the killing so as to mitigate criminal responsibility. We agree with defendant that the voluntary manslaughter instruction would have assisted the jury in considering defendant's state of mind at the time of the shooting in a manner not contemplated by instructions on first- and second-degree murder alone. As already discussed in reference to trial counsel's performance, defendant shot Brooks in the culmination of a prolonged series of events in which defendant was physically and verbally threatened, including when Brooks attempted to run defendant down with her own vehicle. A jury could reasonably conclude that defendant's actions were the result of provocation to a state of emotional excitement, but the jury here was not made aware of the lesser included offense of voluntary manslaughter. The jury instructions regarding first- and second-degree murder and self-defense do not encompass the distinct state of mind required for a voluntary manslaughter conviction. In the absence of instruction on the particular state of mind required for voluntary manslaughter, we cannot definitively conclude whether the jury would have determined that defendant's actions were provoked by inflamed passions or emotional excitement. Therefore, the absence of the lesser included-offense instruction does not "necessarily . . . indicate a lack of likelihood that the jury would have adopted the lesser requested charge." Because the instructions given here did not present to the jury the differing states of mind required for murder and voluntary manslaughter, and because a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter, we conclude that this gap in information provided to the jury is "sufficient to undermine confidence in the outcome" of defendant's trial. [Id. at___; slip op. at 16-17 (citations omitted).]
The Court concluded its prejudice analysis concerning the failure to request an instruction on a lesser-included charge, stating:
It will always be the case that conviction of a greater offense requires rejection of lesser included offenses. If conviction of a greater offense alone were sufficient to render an instructional error harmless, failure to instruct on a lesser included offense would never result in error requiring reversal. But that is not the
case. See People v. Phillips, 385 Mich. 30, 36; 187 N.W.2d 211 (1971) ("If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error . . . ."). The reason a failure to instruct on a lesser included offense results in error requiring reversal is because it is impossible to know what a jury would do if it had been properly apprised of the lesser included offense. [Yeager,___ Mich. at___; slip op. at 19.]
Turning to the present case and beginning with the performance prong, we cannot say from this record that defendant's trial counsel suffered the same mistake of law as the defendant's attorney in Yeager. Defendant submitted an affidavit stating that he requested a lesser-included instruction for voluntary manslaughter and was told by his attorney that "a manslaughter instruction would not be necessary because a jury could not possibly find me guilty. He did not ask for a manslaughter instruction." If true as stated, defendant may have a valid claim for showing deficient performance under Yeager. However, without trial counsel's testimony as to why he did not request an instruction on voluntary manslaughter, there can be no finding here, as there was in Yeager, that counsel's reasoning was "legally incorrect" and, therefore, deficient. It may be that trial counsel's decision to not request a manslaughter instruction was based on a mistake of law, or it may be that trial counsel had other strategic and legally valid reasons to forgo such a strategy.
Decisions of trial strategy are normally afforded great deference in ineffective assistance claims. See People v. Isrow, 339 Mich.App. 522, 532; 984 N.W.2d 528 (2021) ("There is a strong presumption that trial counsel's decision-making is the result of sound trial strategy.").
Turning to prejudice, the Court in Yeager instructed that this Court is to review the prejudice prong in light of the "proposed defense theory" to determine whether the jury would have adopted the lesser requested charge. Id. at___; slip op at 16. Without factual findings from the trial court as to what the "proposed defense theory" was, this Court would only be left to speculate as to what it could have been. Quite obviously defendant's theory at trial was self-defense. But the record does not contain evidence as to why defense counsel rejected the idea of a manslaughter instruction. It could be that defense counsel believed strategically that a self-defense theory was stronger and inconsistent with manslaughter, not because of a mistake about the element of intent, but about evidence of defendant's state of mind. Or perhaps defense counsel suffered from the same or similar mistake of law and thereby rendered ineffective assistance. We cannot say and, therefore, an evidentiary hearing is appropriate to address these questions.
Accordingly, we remand the case to the trial court for an evidentiary hearing to assess defendant's ineffective assistance claim concerning the failure to request a manslaughter instruction. In all other respects we affirm defendant's convictions. We retain jurisdiction.
ORDER
This case is REMANDED to the trial court for an evidentiary hearing and decision whether defendant was denied the effective assistance of counsel. People v. Ginther, 390 Mich. 436 (1973). Proceedings on remand are limited to whether trial counsel provided defendant ineffective assistance by failing to request a manslaughter instruction. People v. Yeager,___Mich___;___N.W.2d___(2023) (Docket No. 164055). This Court retains jurisdiction.
Defendant shall initiate the proceedings on remand within 14 days of the date of this order. The time for further proceedings in this appeal shall begin to run on the issuance of an order in the trial court that concludes the remand proceedings. However, if defendant fails to file a motion to initiate the proceedings within the time provided, the time for further proceedings in this appeal shall begin to run at the conclusion of that 14-day period. Defendant shall file with this Court a copy of any motion and supporting brief filed in the trial court, and defendant shall file a copy of any order entered within 14 days after entry.
The trial court shall hear and decide the matter within 56 days of the date of this order and shall make an appropriate determination on the record. The trial court shall order a transcript of any hearing on remand to be prepared at public expense and filed within 21 days after completion of the proceedings.
Defendant may file a supplemental brief addressing the issues raised on remand within 21 days after the date of entry of the trial court's order deciding the matter or the date the transcript is filed, whichever is later. Plaintiff may file a supplemental brief in response within 21 days after service of defendant's supplemental brief. Each party's supplemental brief shall be limited to twenty (20) pages.