Opinion
No. 340932
03-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL DWAYNE MILLER, 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 UNPUBLISHED Wayne Circuit Court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. 16-009912-01-FC Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ. PER CURIAM.
A jury convicted defendant of assault with intent to commit murder, MCL 750.83, felonious assault, MCL 750.82, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 15 to 30 years for the assault with intent to commit murder conviction, and one to four years for the felonious assault conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of right, and for the reasons set forth in this opinion, we affirm defendant's convictions and sentences.
I. BACKGROUND
Defendant's convictions arise from the October 28, 2016 shooting assault of Brian Flaggs, who was providing assistance at an accident scene outside his place of employment in Detroit. Before the assault, defendant was involved in an argument with his former boyfriend, TJ Pritchett, which led to a high-speed car chase. The chase ended with defendant crashing his vehicle into a telephone pole across the street from ABC Student Transportation ("ABC"), where the prosecution's two primary witnesses, Flaggs and Charles Grant, were employed. The prosecution presented evidence that defendant got out of his car and collapsed on the ground. Pritchett and his two occupants stopped their car nearby. The three men briefly approached defendant as he was on the ground, but then walked back to their car. At the time, Grant and other ABC employees were assisting defendant. After being informed that the three men may have been with defendant, Flaggs walked to Pritchett's car to ask the three men about the accident. In the meantime, defendant got up from the ground, retrieved a nine-millimeter semiautomatic gun from his car, and fired his gun as he walked toward the location of Flaggs and the three other men. Flaggs testified that as he was standing in front of Pritchett, he heard a bang (the first shot), turned, and then saw defendant aim and fire a second shot at him. Flaggs left the area and sought cover as defendant fired two additional shots, which Flaggs agreed were not aimed at him.
Surveillance video from ABC captured defendant walking and shooting, but the men and Pritchett's car were just outside the camera's range. Flaggs testified that as he was standing in front of Pritchett, he heard a bang (the first shot), turned, and then saw defendant aim and fire a second shot at him. Flaggs left the area and sought cover as defendant fired two additional shots, which Flaggs agreed were not aimed at him.
At trial, defendant testified he and Pritchett got into an argument which resulted in defendant leaving their apartment, allegedly with Pritchett following defendant at a high rate of speed. Ultimately, defendant turned around at a dead-end, and he saw Pritchett "flying down the road." There were busses on the right side, and Pritchett was driving "straight at" defendant and swerved into his lane. To avoid colliding with Pritchett, defendant crashed his car into a telephone pole.
Defendant testified that he initially lost consciousness. When he woke up, he was face down on the ground, in pain, his eye was injured, and he was crying hysterically. He heard voices that he did not recognize, but then, he heard Pritchett's voice, which caused him to fear for his safety. As depicted in the surveillance video, Pritchett and their two roommates came to where defendant was on the ground before walking away until they were outside of the camera's range. However, even with other people around, defendant believed that Pritchett would harm him and thought he was armed "in some way." Defendant testified that further that based on his fear of Pritchett, he retrieved his firearm and fired at shot at Pritchett's vehicle. When defendant fired his gun, he was aiming at Pritchett's car because he wanted to scare Pritchett, not kill him. Defendant testified that he fired a second shot because he believed that Pritchett was reaching in his car for a gun. After defendant fired the second shot and was "closing the distance," he noticed that Pritchett had "come up and he had something in his hand" and defendant "fired the other two shots." Defendant then heard Pritchett state, "come on, let's go," and Pritchett and their two roommates, as well as Flaggs, "ran off." However, defendant stated, it was not his intent to injure anyone.
The jury found defendant guilty and the trial court sentenced defendant as stated above. This appeal then ensued.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, defendant first argues that the prosecution failed to present sufficient evidence to support his conviction for assault with intent to commit murder. We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine 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). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Assault with intent to commit murder requires proof that the defendant committed "(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010) (citation omitted). Defendant argues only that the prosecution failed to prove beyond a reasonable doubt that he possessed the requisite intent. "An actor's intent may be inferred from all of the facts and circumstances, and because of the difficulty in proving an actor's state of mind, minimal circumstantial evidence is sufficient." People v Harverson, 291 Mich App 171, 178; 804 NW2d 757 (2010). A jury may infer an intent to kill from the use of a dangerous weapon and a motive to kill. People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014). The prosecution need not show that a defendant's intent to kill was directed toward a specific person or eventual victim. People v Abraham, 256 Mich App 265, 270; 662 NW2d 836 (2003); People v Lawton, 196 Mich App 341, 350-351; 492 NW2d 810 (1992).
Defendant argues that the evidence was insufficient to sustain his conviction of assault with intent to commit murder because (1) there was conflicting testimony regarding whether he acted with an intent to kill, as opposed to intending only to scare Pritchett, (2) Flaggs admitted that defendant was not aiming at him when he fired the last two shots, (3) Grant testified that defendant was firing at Pritchett's car, and (4) there were mitigating circumstances related to his relationship with Pritchett and the accident.
Viewed in the light most favorable to the prosecution, Reese, 491 Mich at 139, the evidence was sufficient to establish that defendant had an intent to kill. The surveillance video and witness testimony indicated that defendant retrieved a nine-millimeter semiautomatic firearm from his car and deliberately walked toward the area where Flaggs was talking to Pritchett near Pritchett's car. With an outstretched arm, defendant pointed and fired his weapon. As defendant walked toward the car, an eyewitness heard defendant state two or three times: "You caused this, you caused me to crash, you caused this." A jury could have reasonably inferred from defendant's actions and statements that he was intentionally shooting at the person whom he thought "caused [him] to crash" and not simply shooting at the car, as defendant claimed. Additionally, Flaggs testified that, after hearing the first shot, he turned and "realized [defendant] was shooting at [him]." When defendant fired the second shot, Flaggs testified that he: "was looking dead into [defendant's] face" and did not take his eyes off defendant because defendant was "walking very deliberately and was firing a gun." There was "no doubt in [Flaggs's] mind" that defendant was aiming at him when, at the very least, he fired the second shot. Considering this evidence in the light most favorable to the prosecution, a jury could have rationally inferred that defendant acted with an intent to kill.
Additionally, the fact that Flaggs testified that defendant was not shooting at him when he fired the last two (out of four) shots does not negate that defendant may have acted with an intent to kill when firing the first two shots. Further, contrary to what defendant argues, our review of the record evidence leads us to conclude that Grant's testimony was not simply that defendant was shooting at a car. Rather, Grant testified that the first shot went "towards the vehicle that was parked there" and that Flaggs was in the area of the vehicle at the time. Hence, defendant appears to ignore that when evaluating the sufficiency of evidence, this Court is required to resolve all conflicts in the evidence in favor of the prosecution, People v Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012), that this deferential standard of review is the same whether the evidence is direct or circumstantial, Nowack, 462 Mich at 400, and that it is well established that "circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Id. (citation omitted). Defendant's challenges are related to the weight of the evidence rather than its sufficiency. People v Scotts, 80 Mich App 1, 9; 263 NW2d 272 (1977). Indeed, these same challenges were presented to the jury during trial, and we will not interfere with the trier of fact's role of determining issues of weight and credibility. People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). The evidence was sufficient to sustain defendant's conviction of assault with intent to commit murder and accordingly, defendant is not entitled to relief on this issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues on appeal that his trial counsel was ineffective for failing to investigate and call Sophia Vick as a defense witness. Our review of this issue is limited to mistakes apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id. Defendant has the burden of establishing the factual predicate of his ineffective assistance claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).
Defendant filed a motion to remand to seek a new trial based on his claim of ineffective assistance of counsel. This Court denied the motion for "failure to persuade the Court of the necessity of a remand at this time." People v Miller, unpublished order of the Court of Appeals, entered April 27, 2018 (Docket No. 340932).
"Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy." People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Defense counsel's failure to a call a witness is considered ineffective assistance only if it deprived the defendant of a substantial defense. Id. "A substantial defense is one that might have made a difference in the outcome of the trial." People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Similarly, "[t]he failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome." Russell, 297 Mich App at 716 (citation omitted).
Defendant attempts to establish the factual predicate for his claim with an affidavit from Vick, which is attached to his brief. It is, however, "impermissible to expand the record on appeal." People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). But even considering Vick's affidavit, defendant's ineffective-assistance claim fails.
Defendant also submits an affidavit from his appellate counsel, who avers that she gathered the information from a telephone conversation with trial counsel. According to appellate counsel, trial counsel indicated that he never spoke to Vick, was not aware that there were any other available witnesses, and, had he known about Vick, he would have called her to testify at trial. However, appellate counsel's affidavit is not a part of the record and defendant has failed to produce an affidavit from trial counsel himself. Accordingly, there is no competent evidence that trial counsel would actually testify favorably on defendant's behalf. See People v Lewis, 305 Mich 75, 78; 8 NW2d 917 (1943).
In her affidavit, Vick, an employee of ABC, averred that she heard the accident as she was parking her school bus, and she saw the injured defendant stagger out of his car. She called 911 and spoke to the operator, who advised her how to assist defendant; she stayed on the phone with the 911 operator while her coworkers assisted defendant. While she and her coworkers were assisting defendant, someone else at the scene informed Vick that men in another car had been chasing defendant and their vehicle was parked in the area. After defendant was on the ground for one or two minutes, he got up, retrieved a gun from the backseat of his vehicle, and began to shoot at the vehicle that had been chasing him. The men from that vehicle "began ducking down behind the vehicle." Vick believed that defendant fired four shots. Vick avers that she is "certain" that defendant "did not want to hurt any of the strangers at the scene" and "did not express any anger toward them." Vick avers that she is also "certain" that defendant was not shooting at Flaggs, who "happened to be in the same area as the men from the other vehicle." Vick was willing to testify, but was not called as a witness by trial counsel.
Vick's 911 call was admitted as an exhibit at trial. In the 911 call, Vick described the accident, as Vick avers in her affidavit. The 911 operator advised Vick on how to assist defendant and Vick, in turn, can be heard instructing her coworkers. Although not detailed in her affidavit, during the call Vick informed the 911 operator that defendant was "screaming and hollering" and "wouldn't relax." Vick further informed the 911 operator that after defendant got up and began shooting, he was "shooting at a guy in another car." Vick then stated: "He's shooting at everybody."
On this record, it is not reasonably probable that the outcome of the trial would have been different had Vick testified at trial. Defendant contends that Vick's proposed testimony could have proven that he did not have the intent to kill when he fired his weapon. According to Vick's affidavit, she would have testified that, as defendant was shooting at (Pritchett's) car, the men from that car "began ducking down behind the vehicle." Thus, clearly, the men were close enough to the car to be harmed. In addition, it is not reasonably probable that Vick's proposed testimony that defendant "did not want to hurt any of the strangers" and that Flaggs just "happened to be in the same area as the men from the other vehicle" would have altered the outcome of the trial. As previously referenced, the prosecution need not show that a defendant's intent to kill was directed toward a specific person or eventual victim, Abraham, 256 Mich App at 270, only that the state of mind exists. Lawton, 196 Mich App at 351. By all accounts, including Vick's proposed testimony, Flaggs was in close proximity to the men; that defendant's actions were not specifically directed at Flaggs, or any other stranger, is inconsequential in proving that defendant possessed the requisite intent for assault with intent to commit murder when he fired his weapon in Flaggs's direction.
It is also significant that, although Vick states in her affidavit that defendant was shooting at the car, when relaying her observations to the 911 operator, she stated that defendant was "shooting at a guy in another car" and was "shooting at everybody." (Emphasis added.) Given that her affidavit on this crucial point is inconsistent with the statements she made during the 911 call, as she was actually observing the shooting, it is improbable that Vick's testimony would have made a difference in the outcome of defendant's trial. Indeed, given Vick's statements during her 911 call, it would have been objectively reasonable for defense counsel not to call her as a witness.
Moreover, defendant does not address the admissibility of Vick's proposed testimony regarding defendant's intent. In her affidavit, Vick concludes, with certainty, that defendant did not want to hurt anyone at the scene, but without providing any foundation for inferring that she had personal knowledge of defendant's state of mind at the time he was shooting. See, generally, MRE 602. It is also unlikely that Vick's testimony could serve as a foundation for offering an opinion regarding defendant's state of mind, see MRE 701.
For the reasons previously discussed, it is not reasonably probable that Vick's supposition that defendant did not have an intent to kill, based on her observations, would have made a difference in the outcome of trial, particularly when contrasting her proposed testimony with her actual statements during the 911 call that defendant was "shooting at a guy in another car" and was "shooting at everybody." See Abraham, 256 Mich App at 270; Lawton, 196 Mich App at 351. Accordingly, defendant has not established that he was prejudiced by trial counsel's failure to call Vick at trial. Consequently, defendant is not entitled to a new trial on the basis of ineffective assistance of counsel.
We also reject defendant's alternative argument that he is entitled to a new trial because Vick's proposed testimony is newly discovered evidence. We review this unpreserved claim for plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Because the proposed witness was known before trial and could have been discovered and produced with reasonable diligence, her testimony cannot be considered newly discovered, but rather, at best, newly available. People v Terrell, 289 Mich App 553, 567; 797 NW2d 684 (2010). We have held that newly available evidence does not authorize the granting of a new trial. Id. Here, Vick could have been discovered before and produced at trial. Vick, one of several bystanders, was an employee of the same company, ABC, as the two prosecution witnesses, Flaggs and Grant. Moreover, Vick called 911 and conversed with the 911 operator about the accident as well as how to treat defendant and her 911 call was admitted as an exhibit and played at trial. Consequently, defendant is not entitled to a new trial on the basis of newly available evidence. See, Terrell, 289 Mich App at 570.
IV. DOUBLE JEPORADY
The day prior to oral argument, defendant, through counsel, filed a motion to add an additional defense, double jeopardy. Though nothing in defendant's filings convinced this Court that there existed an emergency rather than an oversight by appellate counsel, this Court granted the motion.
Defendant contends that his convictions for assault with intent to murder (MCL 750.83) and felonious assault (MCL 750.82) are mutually exclusive; therefore punishment for both offenses constitutes double jeopardy.
The elements of felonious assault are: (1) an assault; (2) with a dangerous weapon; and (3) with the intent to place the victim in reasonable apprehension of an immediate battery. People v Davis, 216 Mich App 47, 53; 549 NW2d 1 (1996). Hence, the two offenses, felonious assault and assault with intent to commit murder, require proof of at least one distinctly different element. Felonious assault contains an element, i.e., the use of a dangerous weapon, MCL 750.82, that is not present in assault with intent to commit murder, MCL 750. 83. Further, MCL 750. 83 contains an intent requirement not present in MCL 750.82.
The elements of assault with intent to murder, MCL 750.83 are identified earlier in this opinion. --------
In People v Miller, 498 Mich 13, 18-19; 869 NW2d 204 (2015), our Supreme Court instructed:
The Legislature, however, does not always clearly indicate its intent with regard to the permissibility of multiple punishments. When legislative intent is not clear, Michigan courts apply the "abstract legal elements" test articulated in Ream to ascertain whether the Legislature intended to classify two offenses as the "same offense" for double jeopardy purposes. This test focuses on the statutory elements of the offense to determine whether the Legislature intended for multiple punishments. Under the abstract legal elements test, it is not a violation of double jeopardy to convict a defendant of multiple offenses if "each of the offenses for which defendant was convicted has an element that the other does not . . . ." This means that, under the Ream test, two offenses will only be considered the "same offense" where it is impossible to commit the greater offense without also committing the lesser offense. In sum, when considering whether two offenses are the "same offense" in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to discern legislative intent. (Citations omitted.)
The evidence established that defendant aimed and fired his gun at three people and shot four times. Reasonable jurors could conclude that defendant was guilty of two separate offenses, assault with intent to murder and felonious assault based on the evidence presented at trial. Based on the differing elements in the two charges as previously highlighted, it is clear that the Legislature intended multiple punishments for conduct constituting the two separate offenses of assault with intent to commit murder and felonious assault. Accordingly, defendant's convictions and the trial court's separate sentencing of defendant for both offenses did not violate the constitutional prohibition against double jeopardy.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ James Robert Redford