Opinion
353458
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TYWAUN TERRILL SIMS-SCOTT, Defendant-Appellant.
UNPUBLISHED
Washtenaw Circuit Court LC No. 18-000825-FC.
Before: Cameron, P.J., and Jansen and Gleicher, JJ.
PER CURIAM.
Following a bench trial, the trial court found Tywaun Sims-Scott guilty but mentally ill of first-degree premeditated murder, MCL 750.316(1)(a). Sims-Scott contended that his trial counsel was constitutionally ineffective for failing to pursue conviction for the lesser included offense of second-degree murder. Given the overwhelming evidence that Sims-Scott had premeditated his actions, he cannot establish the prejudice necessary to warrant relief. We affirm.
I. BACKGROUND
On June 15, 2018, then 19-year-old Sims-Scott was staying with friends, Jamie Barsegian and Gabe McDowell, in their Ypsilanti apartment after his father had kicked him out. Sims-Scott had a history of psychological and psychiatric problems. He had been admitted to psychiatric hospitals on three different occasions and had attempted suicide twice. He had been diagnosed on different occasions with conduct disorder, mood disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, autism, major depressive disorder, and post-traumatic stress disorder. Hospital records described Sims-Scott as lacking impulse control and being a danger to others.
On the day in question, Sims-Scott and Barsegian were home alone. They argued about sharing breakfast food. The argument allegedly got "heated" when Barsegian caught Sims-Scott texting McDowell. Sims-Scott threatened to slap Barsegian and Barsegian threatened to retrieve a pistol. Barsegian then went into her bedroom and started rummaging through drawers. Sims-Scott asserted that he had seen a gun with a clip in that bedroom in the past. Claiming to fear for his life, Sims-Scott took a large knife from the kitchen and went into the bedroom.
Sims-Scott admitted to Ypsilanti Police Detective Jessica Lowry that when he walked into the bedroom, he intended to kill Barsegian. Sims-Scott immediately began stabbing Barsegian despite that he did not see the gun. He stabbed Barsegian 49 times in the face, neck, chest, stomach, back, and upper arms. Barsegian also sustained defensive wounds to her hands. Barsegian claimed that he "blacked out" during the attack. The pistol that Sims-Scott described was later found atop a kitchen cabinet.
After killing Barsegian, Sims-Scott called 911. Covered in blood, Sims-Scott grabbed a second knife and walked to the nearby intersection of Huron River Drive and LaForge Street. Sims-Scott shouted, "shoot me" to the responding officers. An officer shot Sims-Scott with a foam round, Sims-Scott dropped his weapons, and the officers took him into custody.
The prosecutor charged Sims-Scott with open murder. At trial, the prosecutor argued that Sims-Scott's murder of Barsegian was premeditated and deliberate. He therefore sought conviction for first-degree murder, although he reminded the court in closing argument that conviction of second-degree murder was also an option. Defense counsel presented expert testimony regarding Sims-Scott's mental illness and argued that Sims-Scott's criminal liability was negated by legal insanity. Defense counsel never addressed the specific elements of first or second-degree murder, focusing solely on his insanity defense. The prosecution presented a rebuttal expert who challenged the extent of Sims-Scott's mental illness.
The court ultimately found Sims-Scott guilty but mentally ill of first-degree murder. Sims-Scott subsequently filed a motion for a new trial or a hearing at which he could present evidence that his trial counsel was constitutionally ineffective. Sims contended that his counsel should have argued that the individual elements of first-degree murder had not been proven beyond a reasonable doubt and pursued a judgment of guilty but mentally ill on the lesser offense of second-degree murder.
At a hearing on defendant's motion, the trial court found that the outcome of the trial would not have changed if defense counsel had argued for conviction for second-degree murder. The court denied the request for an evidentiary hearing and for a new trial, explaining:
The result of the trial would not have been any different had [counsel] argued for second degree murder because I went through my analysis in the same manner as I would have instructed a jury; consider the most serious charge first. Because I was satisfied beyond a reasonable doubt on each of the necessary elements for first-degree premeditated murder it was of no consequence whether defense counsel had argued for second-degree murder.
II. ANALYSIS
Sims-Scott continues to challenge his trial counsel's performance on appeal. It is important to note that Sims-Scott does not contend that the trial court would have found him not guilty by reason of insanity had defense counsel taken different actions. Rather, Sims-Scott contends that had his attorney argued the case differently, the court may have found him guilty by mentally ill of the lesser charge of second-degree murder.
We also note that Sims-Scott requested in his appellate brief that this Court remand for a hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). As determined by the trial court, a Ginther hearing is unnecessary in this case as Sims-Scott's challenges to counsel's performance can be adequately reviewed on the existing record.
To establish the right to a new trial based on the ineffective assistance of counsel, a defendant must satisfy two components: "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). To establish that counsel's performance was deficient, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. People v Solmonson, 261 Mich.App. 657, 663; 683 N.W.2d 761 (2004). To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceedings would have differed. Id. at 663-664.
Even assuming that defense counsel's performance was deficient, Sims-Scott cannot establish the prejudice necessary to warrant relief. The court stated at the post-trial hearing that it had found the elements of first-degree murder satisfied. Given this finding, the court specifically indicated that no amount of argument on defense counsel's part would have convinced it to find Sims-Scott guilty but mentally ill of a lesser charge. The court's ruling supports that had defense counsel argued in favor of a second-degree murder conviction, the outcome of the proceedings would not have changed. No prejudice arose in this regard.
Deeper argument on the elements of first-degree murder also would not have changed the trial's outcome. "A murder is committed deliberately if done without adequate provocation-that is to say while undisturbed by hot blood, and it is premeditated if the perpetrator had the opportunity to consider his or her actions for some length of time before completing the murder[.]" People v Clark, 330 Mich.App. 392, 436-437; 948 N.W.2d 604 (2019) (citations omitted). "Premeditation and deliberation may be established by an interval of time between the initial homicidal thought and ultimate action, which would allow a reasonable person time to subject the nature of his or her action to a 'second look.'" People v Oros, 502 Mich. 229, 242; 917 N.W.2d 559 (2018).
Sims-Scott essentially argues that his mental illness left him with diminished capacity to form the intent of premeditation and deliberation. Defense counsel did pursue the defense of legal insanity. This affirmative defense is provided by MCL 768.21a(1), which states:
An individual is legally insane if, as a result of mental illness as defined in . . . 1974 PA 258, MCL 330.1400, or as a result of having an intellectual disability as defined in . . . MCL 330.1100b, that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity. [Emphasis added.]
Despite MCL 768.21a(1), this Court once permitted defendants to raise the diminished-capacity defense, which "allows a defendant, even though legally sane, to offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime." People v Carpenter, 464 Mich. 223, 232; 627 N.W.2d 276 (2001). The Supreme Court ended this practice in Carpenter, 464 Mich. at 237, holding that "the Legislature has demonstrated its policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent."
Based on Carpenter, Sims-Scott could not negate specific intent based on mental incapacity short of legal insanity. Accordingly, defense counsel had no legal ground to pursue some lesser version of the legal insanity defense he actually raised to negate the intent element of first-degree murder to support a conviction of the lesser offense of second-degree murder.
And the court properly found the intent element of first-degree murder established. Sims-Scott could have easily left the apartment instead of killing Barsegian. Even if Barsegian went into the bedroom to retrieve a pistol, Sims-Scott had easy access to the exterior door for a quick escape. Instead, he chose to go into the kitchen, secure a knife, and go into the bedroom, a place from which Barsegian could not escape. Sims-Scott admitted that he went into the bedroom for the express purpose of killing Barsegian. And he did not stab Barsegian once or even twice; he stabbed Barsegian 49 times as she tried to stop him.
At trial, the court heard extensive evidence about Sims-Scott's mental illness and the factors that he now argues reduced his level of intent. Further argument that Sims-Scott acted in the heat of passion after an argument over breakfast food or that he acted in self-defense when he was in no immediate danger could not negate the clear evidence of premeditation and deliberation presented at trial.
We affirm.