Opinion
346074
12-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee-Cross Appellant, v. MENAYETTA MICHELL YEAGER, Defendant-Appellant-Cross Appellee.
UNPUBLISHED
Wayne Circuit Court LC No. 17-008290-01-FC
Before: O'Brien, P.J., and Beckering and Cameron, JJ.
PER CURIAM
Defendant appeals as of right her jury trial convictions of first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Before plenary review, this Court remanded this case to the trial court for that court to conduct a Ginther hearing "limited to the issue of whether defendant's trial counsel rendered ineffective assistance of counsel by failing to request an instruction on voluntary manslaughter as a lesser included offense to murder." Following the Ginther hearing, the trial court granted defendant a new trial. The prosecution filed a cross-appeal to contest this ruling.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1993).
People v Ginther, 390 Mich. 436, 443-444; 212 N.W.2d 922 (1973).
People v Yeager, unpublished order of the Court of Appeals, issued November 9, 2020 (Docket No. 346074).
Defendant testified that it was her mother's car.
Addressing the issues raised in defendant's original appeal, we find no error. In the prosecution's cross-appeal, we agree with the prosecution that the trial court erred by concluding that defendant received ineffective assistance of counsel at trial, and therefore reverse the trial court's ruling granting defendant a new trial.
I. FACTUAL BACKGROUND
This action arises from the murder of defendant's boyfriend. According to defendant, on the day of the murder, she and the victim were returning to defendant's house from a local restaurant in a minivan that belonged to defendant's mother. While defendant was driving home, she told the victim she did not want to be in a relationship with him anymore. The victim responded by striking defendant in the face while she was still driving and hitting her repeatedly until she stopped the van in the middle of the street. The victim then got out of the van, pulled defendant out by her hair, and continued to hit her. Defendant managed to get away from the victim and ran down the street, but the victim got in the van and attempted to hit defendant with the vehicle. Defendant called the police, but the victim drove away before police arrived.
Labarren Borom testified that he saw the victim attempt to hit defendant with a vehicle outside of Borom's house. Borom recognized defendant as the daughter of a coworker, who lived in the area. Borom saw the victim drive the van onto Borom's front lawn and a neighbor's front lawn, and believed the victim was trying to hit defendant. Defendant appeared disheveled and looked as if someone recently punched or hit her. After Borom saw the victim drive the van down the street, Borom got in his truck and drove toward defendant to make sure she was safe. Defendant was crying and yelling on the side of the road, and when Borom spoke to her, she asked him to drive her to get the van. Borom agreed, and defendant got in his truck.
Defendant spoke to the victim on her cellphone, and the victim told her he would leave the van at the intersection of Warren Avenue and Van Dyke Street. However, the victim had not brought the minivan to that location by the time Borom and defendant arrived. Defendant continued speaking to the victim on her cellphone, demanding he give her the van. Defendant then told Borom that the victim would meet them at the intersection of Mack Avenue and Van Dyke Street, where defendant could pick up the minivan. Defendant and Borom drove to a Sunoco gas station near Mack Avenue and Van Dyke Street.
According to defendant, while she as on the phone with the victim, he began yelling that he saw her with Borom and threatened to kill them. Defendant testified that when she and Borom pulled into the Sunoco gas station, she attempted to get out of Borom's truck and run away, but Borom gave her a gun as she was getting out of the truck. According to defendant, she took the gun and fired two or three times at the victim because she feared that the victim was going to try to kill her.
Borom's account of the events somewhat differed from defendant's. Borom testified that the victim pulled into the gas station after he and defendant did, and then began verbally taunting defendant. This led to defendant and the victim arguing with each other. According to Borom, during the argument, defendant leaped out of Borom's truck, pulled out a handgun, and fired multiple times at the victim. The victim sped away, and defendant chased him on foot for a moment while still shooting at the van. Defendant then returned to Borom's truck, and Borom told her he would drive her back to his house since it seemed that she would not be getting her van from the victim.
Officers were dispatched to the scene and found the victim in the van. He had apparently lost control of the van and crashed into a brick wall in a parking lot near the gas station. When officers found the victim, he was nonresponsive and appeared to have a bullet wound in his chest. He was transported to a hospital, where he was pronounced dead on arrival. Back at the gas station, officers recovered 17 shell casings. An autopsy of the victim later determined that his death was caused by a bullet that entered through the back of his shoulder and pierced his lung. The victim's death was ruled a homicide. Defendant was identified as the shooter, and when she heard that the police were looking for her, she turned herself in.
As previously stated, defendant was convicted by a jury of first-degree premeditated murder and felony-firearm. Defendant appealed, and this Court remanded for the trial court to conduct a Ginther hearing on the issue of whether defendant's trial counsel rendered ineffective assistance of counsel by failing to request an instruction on voluntary manslaughter as a lesser included offense to murder. Following the Ginther hearing, the trial court concluded that the testimony given by defendant at the Ginther hearing supported that a voluntary-manslaughter instruction would have been appropriate, that defendant's trial counsel performed deficiently by failing to communicate to defendant that voluntary manslaughter was a possible mitigation defense and to otherwise request an instruction for voluntary manslaughter, and that this deficient performance prejudiced defendant.
Defendant appealed issues related to her trial, and the prosecution cross-appealed the trial court's ruling following the Ginther hearing.
II. DEFENDANT'S APPEAL
A. EVIDENCE OF OTHER ACTS
Defendant argues the trial court erred by declining to allow her to introduce evidence of the victim's past acts of domestic violence under MCL 768.27b and MRE 404(b). We disagree.
"The decision whether to admit evidence falls within a trial court's discretion and will be reversed only when there is an abuse of that discretion." People v Duncan, 494 Mich. 713, 722; 835 N.W.2d 399 (2013). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Swain, 288 Mich.App. 609, 628-629; 794 N.W.2d 92 (2010). Underlying questions of law are reviewed de novo. People v Pattison, 276 Mich.App. 613, 615; 741 N.W.2d 558 (2007).
Initially, we note that the trial court allowed defendant to present evidence showing that the victim was physically and verbally abusive to defendant and had a character for aggression, see MRE 404(a)(2), and defendant's contention on appeal is that the trial court should have allowed her to present evidence of specific instances where the victim abused her. Yet defendant does not identify any specific acts of domestic violence committed by the victim that the trial court should have allowed into evidence. She instead asserts without specificity that the victim's "prior acts of domestic violence" should have been admitted. By failing to specify what evidence was erroneously excluded, defendant has failed to adequately present this issue for our review. Despite this failure, we briefly address defendant's arguments and conclude that they have no merit.
MRE 404(a)(2) states:
(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
* * *
(2) Character of alleged victim of homicide. When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused[.]
As explained in the majority opinion, defense counsel made an error of law because self-defense and voluntary manslaughter are not mutually exclusive mitigating circumstances, and self-defense also requires that the defendant act with deliberation. Similarly, although not raised by defendant in this appeal, defense counsel may have also provided ineffective assistance during the plea negotiation phase of the proceedings. During his Ginther hearing testimony, defense counsel explained that if he requested a voluntary manslaughter instruction, defendant might as well have taken the plea deal offered by the prosecution because defendant would then have to admit that she exited the truck with the intent to shoot and kill Brooks.
Defendant first argues that the victim's acts of domestic violence towards defendant should have been admitted under MCL 768.27b(1), which states:
Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under [MRE] 403.
Fatal to defendant's argument is the simple fact that, by its terms, MCL 768.27b(1) is only applicable to "evidence of the defendant's commission of other acts of domestic violence"; the statute says nothing about the admission of a victim's other acts of domestic violence. Because MCL 768.27b(1) does not allow for the admission of a victim's commission of other acts of domestic violence, the trial court did not err by not admitting evidence of the victim's past acts of domestic violence under this statute.
Defendant alternatively argues that the trial court erred by not admitting evidence of the victim's past acts of domestic violence under the res gestae exception to MRE 404(b). MRE 404(b) allows for the admission of other-acts evidence for non-propensity purposes such as to prove motive, opportunity, or intent. Our Supreme Court has plainly stated, however, that "there is no 'res gestae exception' to MRE 404(b)," People v Jackson, 498 Mich. 246, 274; 869 N.W.2d 253 (2015), so defendant's contention that the victims past acts of domestic violence should have been admitted "under the res gestae exception to MRE 404(b)" is without merit.
In the same argument, defendant more generally asserts that she should have been permitted to introduce evidence of the victim's past acts of domestic violence to provide context for why she feared for her life when she shot the victim "five minutes" after he attacked her. Yet the trial court allowed defendant to present evidence showing that the victim was physically and verbally abusive to defendant and had a character for aggression. Defendant does not explain why, in light of this evidence, it was necessary for the trial court to admit evidence of specific instances where the victim abused defendant.
Lastly, defendant contends that the trial court's exclusion of evidence of the victim's past acts of domestic violence deprived defendant of evidence necessary to prove "battered woman syndrome." "The 'battered woman syndrome' generally refers to common characteristics appearing in women who are physically and psychologically abused by their mates." People v Wilson, 194 Mich.App. 599, 603; 487 N.W.2d 822 (1992) (quotation marks and citation omitted). Defendant claims that battered woman syndrome is an affirmative defense, but that is incorrect. Evidence of battered woman syndrome is typically offered to support a claim of self-defense. People v Christel, 449 Mich. 578, 589; 537 N.W.2d 194 (1995). As our Supreme Court explained:
Defendant attributes her assertion that battered woman syndrome is an affirmative defense to People v Kurr, 253 Mich.App. 317, 326; 654 N.W.2d 651 (2002)-a case dealing with a defense of others theory. Kurr makes no mention of battered woman syndrome.
The Court notes that after Michigan's robbery statute was amended in 2004, larceny from a person was no longer a necessarily included lesser offense of robbery. Smith-Anthony, 494 Mich. 687 n 53.
[E]xpert scientific evidence concerning "battered-woman's syndrome" does not aid a jury in determining whether a defendant had or had not behaved in a given manner on a particular occasion; rather, the evidence enables the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer. Thus, the evidence helps the jury to understand the battered woman's state of mind. [Id. (quotation marks and citation omitted).]
Put simply, evidence that a defendant suffered from battered woman syndrome could help a jury evaluate a self-defense claim-such as aiding the jury in assessing whether the defendant reasonably believed her life was in danger-but battered woman syndrome is not, itself, a defense.
With this understanding of battered woman syndrome in mind, it is clear that defendant's argument is without merit. Battered woman syndrome is established through expert testimony, not through the admission of specific instances of domestic violence. Thus, the trial court's decision to exclude evidence of the victim's past acts of domestic violence did not deprive defendant of the opportunity to present evidence of battered woman syndrome to aid her claim of self-defense.
Defendant also argues that defense counsel at trial provided ineffective assistance by not calling an expert to testify about battered woman syndrome. It is well established that the defendant has the burden of establishing the factual predicate for her claim of ineffective assistance of counsel. People v Dendel, 481 Mich. 114, 125; 748 N.W.2d 859 (2008). Defendant never presented any affidavits or other proof in either the trial court or on appeal suggesting what an expert witness on battered woman syndrome would have testified to at trial. Our Supreme Court has recognized that not all women in abusive relationships necessarily suffer from battered woman syndrome, see Christel, 449 Mich. at 588, and defendant has not presented proof that she suffered from the syndrome other than the fact that the victim was abusive. Thus, defendant failed to establish the factual predicate of her ineffective assistance claim, and that claim does not warrant appellate relief.
B. JURY INSTRUCTIONS
Defendant argues the trial court erred by failing to instruct the jury regarding the crimes of voluntary manslaughter, involuntary manslaughter, and reckless discharge of a firearm. We disagree.
Defendant did not request jury instructions for voluntary and involuntary manslaughter or reckless discharge of a firearm. In fact, defendant expressed satisfaction with the jury instructions as given after they were read to the jury. It is well settled that "an affirmative statement that there are no objections to the jury instructions constitutes express approval of the instructions, thereby waiving review of any error on appeal.' People v Kowalski, 489 Mich. 488, 505 n 28; 803 N.W.2d 200 (2011). Accordingly, defendant has waived any claim of error, and this Court need not further analyze this issue on appeal.
In a supplemental brief, defendant argued that her trial counsel was ineffective for failing to request instructions for voluntary manslaughter. This was the issue that this Court remanded to the trial court for a Ginther hearing, and is discussed in Section III.
C. STANDARD 4
In a Standard 4 brief, defendant raises several claims of ineffective assistance.
To prevail on an ineffective assistance claim, "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). "Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim." People v Dendel, 481 Mich. 114, 125; 748 N.W.2d 859 (2008).
Defendant first argues that her trial counsel was ineffective because he did not communicate with her enough and failed to adequately prepare her to testify. Assuming that this allegation is true and that her trial counsel's performance was objectively unreasonable, defendant does not explain how the outcome of her trial would have been different but for this performance. For instance, defendant does not explain how her trial testimony would have differed had her counsel better prepared her to testify. Because defendant has not alleged that anything about her trial would have been different but for her trial counsel's performance, she has necessarily failed to establish a claim of ineffective assistance warranting appellate relief. See Trakhtenberg, 493 Mich. at 51.
At the Ginther hearing unrelated to this issue, the trial court found that defendant's trial counsel communication with defendant was "very poor."
Next, defendant argues that her trial counsel failed to adequately investigate her case and, consequently, failed to secure witnesses and evidence that would have been favorable to her defense. Defendant contends that had her trial counsel investigated her medical records and obtained reports from various police departments, he would have discovered evidence showing that the victim had abused defendant in the past. Defendant also contends that had her trial counsel investigated her case more thoroughly, he could have located an unidentified witness that would have testified about the victim's past abuse of defendant. Initially, we note that (1) evidence that the victim was aggressive to the victim and physically abused her was already before the jury, and (2) defendant has failed to explain how specific instances of the victim's past abuse were admissible, as explained in Section II.A. Regardless, defendant has not presented any of the medical records or police reports that she claims would have established that the victim abused her, nor has she identified the witness that could have testified about the victim's abuse of defendant or what that witness would have said. Thus, defendant has failed to establish the factual predicate of her ineffective assistance claim. Dendel, 481 Mich. at 125.
Defendant lastly argues that she was prejudiced by the cumulative effect of her trial counsel's errors. However, having identified no errors, defendant's cumulative-error claim fails. See People v Dobek, 274 Mich.App. 58, 107; 732 N.W.2d 546 (2007).
III. PROSECUTION'S CROSS-APPEAL
In its cross-appeal, the prosecution argues that the trial court erred by ruling that defendant's trial counsel rendered ineffective assistance of counsel by failing to request a voluntary manslaughter instruction. We agree.
Claims of ineffective assistance of counsel present mixed questions of fact and law. People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018). Factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. Id. As previously stated, to prevail on an ineffective assistance claim, "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." Trakhtenberg, 493 Mich. at 51. Counsel is presumed effective, and defendant carries a heavy burden to overcome this presumption. Head, 323 Mich.App. at 539.
"[W]hen a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence." People v Mendoza, 468 Mich. 527, 541; 664 N.W.2d 685 (2003). Voluntary manslaughter is a mitigation defense and "requires a showing that (1) defendant killed in the heat of passion, (2) this passion was caused by an adequate provocation, and (3) there was no lapse of time during which a reasonable person could have controlled his passions." People v Roper, 286 Mich.App. 77, 87; 777 N.W.2d 483 (2009).
In finding that defendant's trial counsel was ineffective for not requesting a voluntary-manslaughter instruction, the trial court first walked through the evidence presented at the Ginther hearing as it related to the incident that led to the charges against defendant, made factual findings related to that evidence, and concluded that a voluntary-manslaughter instruction was supported by those factual findings. The court then addressed defendant's trial counsel's performance and determined that her counsel failed to request a voluntary-manslaughter instruction "based on his serious misunderstanding of the law," which led to defendant's trial counsel failing to inform defendant that voluntary manslaughter was a possible mitigation defense. This, the court determined, amounted to "deficient representation." Turning to the prejudice prong, the trial court ruled that this deficient performance prejudiced defendant because "the record establishes that any reasonable juror could find, based upon the evidence, that, uhm, [defendant] was guilty of voluntary manslaughter, and not first degree murder."
We agree with the trial court that defendant has established that her trial counsel's performance fell below an objective standard of reasonableness. On appeal, the prosecution argues that it was trial strategy for defendant's trial counsel to not request a voluntary manslaughter instruction. It is true that defendant's trial counsel testified that he did not request a voluntary-manslaughter instruction because that "would have been inconsistent" and "totally against . . . what we were saying. . . . That was not in our defense." It is also true that "[f]ailing to request a particular jury instruction can be a matter of trial strategy," People v Dunigan, 299 Mich.App. 579, 584; 831 N.W.2d 243 (2013), and "counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." People v Unger, 278 Mich.App. 210, 242; 749 N.W.2d 272 (2008). However, any strategy used by counsel must, in fact, be sound, and "a court cannot insulate the review of counsel's performance by calling it trial strategy." People v Douglas, 496 Mich. 557, 585; 852 N.W.2d 587 (2014) (quotation marks and citation omitted).
The prosecution contends on appeal that defendant's trial counsel was "seeking an all or nothing verdict," but that contention is not borne out by the record. Defendant's trial counsel never testified that he did not request a voluntary-manslaughter instruction because defendant's strategy was "all or nothing." Rather, as will be explained, he repeatedly testified that he did not seek a voluntary-manslaughter instruction because he did not believe that the killing in this case was intentional.
Defendant's trial counsel's strategy here was not, in fact, sound. At the Ginther hearing, defendant's trial counsel repeatedly explained that he did not believe that a voluntary-manslaughter instruction was appropriate in this case because he did not believe that defendant intended to kill or seriously harm the victim. Defendant's trial counsel's understanding of the law in this sense was arguably correct; for a defendant to be guilty of voluntary manslaughter, the killing must be intentional. See People v Pouncey, 437 Mich. 382, 388; 471 N.W.2d 346 (1991) (explaining that murder and voluntary manslaughter "are both homicides and share the element of being intentional killings," but "the element of provocation which characterizes the offense of manslaughter separates it from murder"). Yet defendant's trial strategy was that she acted in self-defense, and our Supreme Court has repeatedly explained that" '[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 Dupree, 486 Mich. 693, 707; 788 N.W.2d 399 (2010), quoting People v Heflin, 434 Mich. 482, 503; 456 N.W.2d 10 (1990). That is to say, the jury needed to find that defendant acted intentionally for the strategy used by defendant's trial counsel to be successful. Defendant's trial counsel's decision to not request a voluntary-manslaughter instruction because voluntary manslaughter requires that the killing be intentional, while pursuing a defense that "necessarily requires a finding that the defendant acted intentionally," id., was not sound trial strategy, and was otherwise objectively unreasonable.
We agree with the prosecution, however, that the trial court erred when it concluded that defendant's trial counsel's deficient performance prejudiced defendant. As stated previously, the trial court reasoned that trial counsel's deficient performance prejudiced defendant because "the record establishes that any reasonable juror could find, based upon the evidence, that, uhm, [defendant] was guilty of voluntary manslaughter, and not first degree murder." Yet the mere fact that a juror could find defendant guilty of voluntary manslaughter, not first-degree murder, is not determinative. The question is whether "but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich. at 51. The outcome here was that the jury found defendant guilty of first-degree murder, and in so doing rejected the lesser charge of second-degree murder. As pointed out by the prosecution, this is identical to the situation in People v Raper, 222 Mich.App. 475, 483-484; 563 N.W.2d 709 (1997), wherein this Court explained why counsel's failure to request a voluntary-manslaughter instruction in this situation did not amount to ineffective assistance of counsel:
Lastly, defendant argues that he was denied effective assistance of counsel because his trial attorney failed to submit jury instructions regarding the lesser included offenses of voluntary and involuntary manslaughter. We find no merit in this argument. In this case, defendant was charged with first-degree murder. The jury was instructed on first-degree murder and second-degree murder, and found defendant guilty of first-degree murder. The jury's rejection of second-degree murder in favor of first-degree murder reflected an unwillingness to convict on a lesser included offense such as manslaughter. People v Zak, 184 Mich.App. 1, 16; 457 N.W.2d 59 (1990). Thus, even if defendant's trial counsel had requested a manslaughter instruction and the trial court had failed to give such an instruction, such error would have been harmless. For the same reason, defendant cannot show that his counsel's failure to request a manslaughter instruction caused him prejudice. Accordingly, defendant cannot sustain his claim of ineffective assistance of counsel. People v Launsburry, 217 Mich.App. 358, 362; 551 N.W.2d 460 (1996).
As a published decision, we are bound by the reasoning in Raper under the rule of stare decisis. MCR 7.215(C)(2) ("A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis."). We therefore reverse the trial court insofar as it held that defendant established a claim of ineffective assistance of counsel and awarded her a new trial.
Defendant urges us to convene a conflict panel with Raper under MCR 7.215(J), but we decline to do so because we are not convinced that Raper was wrongly decided. Defendant was convicted of first-degree murder. "The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation," People v Bass, 317 Mich.App. 241, 265-266; 893 N.W.2d 140 (2016) (quotation marks and citation omitted; emphasis added); see also MCL 750.316(1)(a) (defining first-degree murder as "any willful, deliberate, and premediated killing"), whereas "[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," People v Townes, 391 Mich. 578, 590; 218 N.W.2d 136 (1974) (emphasis added). See also People v Younger, 380 Mich. 678, 681-682; 158 N.W.2d 493 (1968) ("If there be actions manifesting deliberation, it cannot be said, legally, that the homicide was the product of provocation which unseated reason and allowed passion free reign."). That is, a finding of deliberation would seem to necessarily preclude a finding that the defendant killed in of the heat of passion, i.e., committed voluntary manslaughter. Here, when instructing the jury on the elements of first-degree murder, the trial court stated that in order to convict defendant of first-degree murder, it had to find "that the killing was deliberate, which means that the defendant considered the pros and cons of the killing, and thought about, and chose her actions before she did it." The jury's conviction of first-degree murder demonstrates that it found that defendant "considered the pros and cons of the killing, and thought about, and chose her actions before she did it," which would seem to necessarily preclude a finding that defendant killed in the heat of passion in this case.
IV. CONCLUSION
In defendant's appeal, we affirm. In the prosecution's cross-appeal, we reverse the trial court's order awarding defendant a new trial.
Beckering, J. (concurring).
In this case, which has recently been returned to this Court following a Ginther 1 hearing, I agree with the trial court's and the majority's conclusion that defendant Menayetta Yeager was deprived of effective assistance when her trial counsel chose not to ask for a voluntary manslaughter jury instruction, among other very poor advocacy strategies. If ever there were a heat of passion case, this is it. Defendant shot and killed her boyfriend in the throes of an episode where he beat her up, yanked her out of her car by the hair, carjacked her, drove over people's lawns in an attempt mow her down, and taunted and threatened to kill her when she tried to get her car back.2 Defendant's counsel decided to argue only self-defense. But as the trial court correctly concluded, it was substandard not to also ask for a voluntary manslaughter instruction in light of the presenting record evidence and defendant deserves a new trial. To deprive her of that opportunity would be a serious deprivation of justice. But in its cross appeal after remand, the prosecution cited for the very first time People v Raper, 222 Mich.App. 475; 563 N.W.2d 709 (1997), proclaiming correctly that we are bound by it on the issue of prejudice. I agree with defendant's appellate counsel that Raper was wrongly decided, and I would convene a conflict panel under MCR 7.215(J) because I believe defendant was prejudiced by her counsel's unacceptably bad representation. Before she spends the rest of her life in prison, she deserves a new trial.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant's convictions arose out of the shooting death of Jonte Brooks. According to defendant's trial testimony, she was driving her mother's van with Brooks as a passenger. She told Brooks that she no longer wanted to be in a relationship and he became angry. He punched defendant. Defendant stopped the van and Brooks pulled her out of the van by her hair. He then beat defendant on the side of the road. Brooks got back into the van and attempted to run over defendant. Defendant called the police while evading Brooks. Witness Labarren Borom stopped his truck beside defendant and told her to get in before Brooks returned. She got into the truck. During these events, defendant was speaking to Brooks on the phone in an attempt to get him to stay in the area so that he could be apprehended by the police. Brooks told defendant he would leave the van at a nearby gas station. However, when Borom and defendant arrived at that gas station, Brooks was not there. Brooks evidently saw defendant in the truck with Borom. He threatened to kill them both. Borom pulled out of the gas station and continued driving down the road while defendant and Brooks argued over the phone. Brooks screamed at Borom to pull into a nearby gas station. Borom complied. Brooks also pulled into the gas station. Defendant claimed that she exited Borom's car in order to run away, but Borom handed her a gun, and she shot at Brooks because she was scared. Video surveillance at the gas station captured the incident and showed defendant shooting at the van as Brooks drove away in it. Brooks later lost control of the van and crashed into a brick wall. He was pronounced dead upon arrival at the hospital. An autopsy showed that he was killed by a bullet that entered through the back of his shoulder and pierced his lung. Toxicology testing showed that Brooks's blood alcohol concentration was .135, which is slightly less than twice the legal intoxication limit. There was also marijuana in his system.
Defendant claimed she shot at Brooks two or three times, while the on-duty gas station clerk testified that he heard 10 shots. Evidence technicians discovered 17 shell casings in the gas station's parking lot.
During closing arguments, the prosecution emphasized defendant's frustration and anger illustrated by her 911 call and statements to Borom. According to Borom, defendant expressed her frustration with Brooks and indicated that she was tired of him playing games with her. After Brooks pulled the van into the gas station, he taunted defendant. She then exited the truck and shot at the van. Moreover, Borom stated that after defendant shot at Brooks, she got back into his truck and demanded that he "follow that bitch."
Defense counsel decided to pursue only a claim of self-defense and chose not to ask for a voluntary manslaughter jury instruction based on his understanding that self-defense is mutually exclusive of voluntary manslaughter. The prosecution asked the trial court to add a lesser included instruction for second-degree murder. The jury deliberated for multiple hours over the course of two days, requesting multiple exhibits including video footage of the shooting and 911 calls, before eventually finding defendant guilty of first-degree murder and possession of a firearm during the commission of a felony.
The trial court sentenced defendant to the mandatory sentence of life imprisonment without the possibility of parole. Defendant appealed her convictions and sentence to this Court. After oral argument, this Court remanded the case to the trial court to conduct a Ginther hearing to address whether defendant was denied the effective assistance of counsel as the result of defense counsel's failure to request a voluntary manslaughter jury instruction. After hearing testimony and considering the parties' arguments, the trial court granted defendant's motion for a new trial, finding that defense counsel provided ineffective assistance on this basis. The prosecution filed a cross-appeal, arguing that the trial court erred by granting defendant's request for a new trial because this Court's holding in Raper requires us to conclude that trial counsel's ineffectiveness was harmless.
II. ANALYSIS
Defendant asserted, and the trial court agreed, that she was denied the effective assistance of counsel at trial. I agree. I believe that this Court's holding in Raper inappropriately precludes relief to defendants for the failure to provide a voluntary manslaughter instruction in cases in which the jury chooses first-degree murder instead of second-degree murder.
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, Mich. 575, 579; 640 N.W.2d 246 (2002). "The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo." People v Cline, 276 Mich.App. 634, 637; 741 N.W.2d 563 (2007).
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that "(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different." People v Sabin (On Second Remand), 242 Mich.App. 656, 659; 620 N.W.2d 19 (2000).
"Manslaughter is an inferior offense of murder because manslaughter is a necessarily included lesser offense of murder." People v Mendoza, 468 Mich. 527, 533; 662 N.W.2d 685 (2003). "[A]n inferior-offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense, meaning, all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction." Id. (footnote omitted). "To prove voluntary manslaughter, the prosecution must prove that: (1) the defendant killed in the heat of passion; (2) the passion was caused by adequate provocation; and (3) there was no lapse of time during which a reasonable person could have controlled his passions." People v Tierney, 266 Mich.App. 687, 714; 703 N.W.2d 204 (2005). However, "provocation is not an element of voluntary manslaughter . . . [r]ather, provocation is the circumstance that negates the presence of malice." Mendoza, 468 Mich. at 536 (citation omitted). In a case in which "a defendant is charged with murder, instructions for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence." Tierney, 266 Mich.App. at 714. "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." Id. at 714-715 (quotation marks and citation omitted). "The determination of what is reasonable provocation is a question of fact for the fact-finder." Id. at 715 (quotation marks and citation omitted).
In this case, a rational view of the evidence supports an instruction on voluntary manslaughter. Testimony at trial showed that Brooks physically assaulted defendant by punching, kicking, and pulling her hair. He forcibly removed defendant from the driver's seat of her mother's van and attempted to hit her with the van several times. He then taunted and threatened defendant over the phone as she attempted to retrieve the van. According to testimony elicited by the prosecution, defendant was angry and frustrated with Brooks. She indicated that she was tired of him. After Brooks pulled into the gas station, he continued to taunt defendant. She then exited the truck and shot at the van 17 times as Brooks drove away. When she returned to the truck, she told Borom to follow Brooks. A reasonable jury could accept the evidence that indicated that defendant was stoked into a heat of passion and shot defendant before there was a lapse of time during which a reasonable person could control her passions and apply reason to the situation. Although defendant's taunts over the phone could not serve as adequate provocation, Brooks also physically assaulted defendant and attempted to run her over multiple times, including driving over people's lawns in an attempt to hit her, followed by carjacking and threats to kill her which kept her passions inflamed. See People v Mitchell, 301 Mich.App. 282, 288; 835 N.W.2d 615 (2013) (concluding that the trial court erred by failing to provide voluntary manslaughter instruction because the defendant killed the victim after the victim struck the defendant with a baseball bat and hit him several times in the face). Therefore, defendant was entitled to a voluntary manslaughter instruction, and defense counsel was deficient for failing to request such an instruction.3 See Tierney, 266 Mich.App. at 714. See also People v Dupree, 486 Mich. 693, 712; 788 N.W.2d 399 (2010) ("A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.") (Quotation marks and citation omitted).
However, defendant must also show that she was prejudiced by defense counsel's error. In other words, she is required to establish that if defense counsel had asked for a voluntary manslaughter jury instruction, there exists a reasonable probability of a different outcome. See Sabin (On Second Remand), 242 Mich.App. at 659. In Raper, 222 Mich.App. at 483, the defendant, who was charged with first-degree murder, argued that he was denied the effective assistance of counsel because his attorney failed to request that the jury be instructed on the lesser included offenses of voluntary and involuntary manslaughter. This Court disagreed, observing that the jury was instructed in regard to first-degree murder and second-degree murder, and the jury found the defendant guilty of first-degree murder. Id. This Court concluded that "[t]he jury's rejection of second-degree murder in favor of first-degree murder reflected an unwillingness to convict on a lesser included offense such as manslaughter." Id. Thus, any error was ultimately harmless, and therefore, the defendant could not establish that he was prejudiced by defense counsel's failure to request an instruction on manslaughter. Id. at 483-484.
The opinion in Raper, 222 Mich.App. at 483, cites this Court's earlier opinion in People v Zak, 184 Mich.App. 1, 16; 457 N.W.2d 59 (1990), for the proposition that failure to instruct the jury on manslaughter constitutes harmless error if the jury was instructed on both first- and second-degree murder, and finds the defendant guilty of first-degree murder. In the Zak case, two codefendants went to trial for murder; defendant John Zak was convicted of second-degree murder and defendant Harry Anderson was convicted of first-degree murder. Zak, 184 Mich.App. at 1. On appeal, Anderson argued that the trial court erred by refusing to instruct the jury in regard to manslaughter. Id. However, this Court concluded that
Where the trial court instructs on a lesser included offense which is intermediate between the greater offense and a second lesser included offense, for which instructions were requested by the defendant and refused by the trial court, and the jury convicts on the greater offense, the failure to instruct on that requested lesser included offense is harmless if the jury's verdict reflects an unwillingness to have convicted on the offense for which instructions were not given. [Id., citing People v Beach, 429 Mich. 450, 491; 418 N.W.2d 861 (1988), superseded by statute as stated in People v Smith-Anthony, 494 Mich. 669, 687 n 53;837 N.W.2d 415 (2013)4.]
Because "the jury was instructed on both first- and second-degree murder and convicted defendant Anderson of first-degree murder[, ]" this Court determined "that their rejection of second-degree murder reflects an unwillingness by the jury to convict on manslaughter and, therefore, the failure to so instruct constitutes harmless error." Zak, 184 Mich.App. at 16.
In Beach, 429 Mich. at 490, a Michigan Supreme Court case that preceded Raper and Zak, our Supreme Court held that the failure to instruct the jury in regard to conspiracy to commit larceny in a building constituted error; however, because the jury rejected the lesser included offense of conspiracy to commit unarmed robbery and convicted the defendant of the greater offense of conspiracy to commit armed robbery, the error was ultimately harmless. In regard to the harmless error analysis, the Court explained that "[t]he existence of an intermediate charge that was rejected by the jury does not, of course, automatically result in an application of the [harmless error] analysis." Id. at 491. Rather, "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. The Court further explained that implicit in the jury's verdict in that case was a finding concerning the use of a weapon. Id. at 492. The Court observed that "if [the jury] concluded that the defendant was not planning to use force, it could have and undoubtedly would have, found her guilty of the instructed lesser included offense of conspiracy to commit unarmed robbery." Id. at 490. As a result, the Court believed that the jury's verdict showed that the failure to provide an instruction concerning the conspiracy to commit larceny in a building was not prejudicial to the defendant because the jury had no reasonable doubt concerning the intended use of force. Id.
I conclude that Raper impermissibly limits relief in cases involving instructional error, especially considering the reasoning and analysis employed by the Supreme Court in Beach. I believe that this case exemplifies the situation described in Beach, 429 Mich. 491, in which an instructional error is not harmless because the jury's rejection of second-degree murder does not necessarily "indicate a lack of likelihood that the jury would have adopted" a verdict of voluntary manslaughter.
In this case, defendant was charged with first-degree murder. "The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation." People v Bass, 317 Mich.App. 241, 256-266; 893 N.W.2d 140 (2016) (quotation marks and citation omitted). The jury was also instructed in regard to second-degree murder. The elements of second-degree murder are "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." People v Werner, 254 Mich.App. 528, 531; 659 N.W.2d 688 (2002) (quotation marks and citation omitted). "Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." Id. (quotation marks and citation omitted). "Murder and manslaughter are both homicides and share the element of being intentional killings. However, the element of provocation which characterizes the offense of manslaughter separates it from murder." People v Pouncey, 437 Mich. 382, 388; 471 N.W.2d 346 (1991). As noted earlier in this opinion, the provocation required for a manslaughter charge "is that which causes the defendant to act out of passion rather than reason." Tierney, 266 Mich.App. at 714.
As a result, considering the elements of the aforementioned offenses, I do not believe that the jury's decision to convict defendant of first-degree murder instead of second-degree murder automatically proves that the jury would not have been inclined to convict defendant of voluntary manslaughter if given the opportunity. A reasonable jury could have accepted the prosecution's theory of the case that defendant deliberately shot and killed Brooks, but concluded that she did so out of uncontrollable anger as a result of the events that occurred in the moments before the shooting. There is a reasonable probability that even though the jury would not find self-defense, if given the option it would have found defendant guilty of voluntary manslaughter rather than first-degree murder. See Sabin (On Second Remand), 242 Mich.App. at 659. See also People v Ackley, 497 Mich. 381, 389; 870 N.W.2d 858 (2015) ("A reasonable probability is a probability sufficient to undermine confidence in the outcome.").
Moreover, claims of ineffective assistance of counsel are reviewed on the basis of the facts in each individual case. People v Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004) ("The trial court must first find the facts and then decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." On the other hand, this Court's holding in Raper acts as an absolute bar to relief in circumstances such as those present in this case. I believe such a strict, bright line rule contradicts the proper analysis necessary to address a claim that a criminal defendant was denied the effective assistance of counsel. As such, if it were not for this Court's binding opinion in Raper, I would affirm the trial court's order granting defendant a new trial on the basis that defense counsel's performance fell below an objective standard of reasonableness and defendant was prejudiced by it. In light of Raper, I would declare a conflicts panel under MCR 7.215(J) so this Court can revisit the ruling in that case. Barring that, I hope the Michigan Supreme Court takes this case and examines the legal integrity of the bright line rule in Raper.