PEOPLE OF MI V RICHARD RAYMOND JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 17, 2000
Plaintiff-Appellee,
v
No. 195891
Ingham Circuit Court
LC No. 95-069404-FC
RICHARD RAYMOND,
Defendant-Appellant.
Before: Kelly, P.J., and Whitbeck and Collins, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317;
MSA 28.549.1 He was sentenced to twenty to thirty years’ imprisonment. Defendant now
appeals as of right.
Defendant’s conviction resulted from the stabbing death of Rodney Johnson during a
drug transaction gone bad. The victim, whom witnesses testified was unarmed, suffered a nonfatal stab wound to his abdomen and a fatal stab wound to his inner right thigh.2 Additionally,
the victim had cuts on the fingers of his right hand that appeared to be defensive wounds.
During the incident, defendant was overheard to say, “I told you don’t f[uck] with me”
and, “That’ll show you.” Subsequently, defendant told a friend that during a drug transaction
with the victim, the victim attempted to steal defendant’s marijuana. Defendant told his friend
that he stabbed the victim in the stomach and leg. Defendant did not mention having to defend
himself during the incident. In fact, defendant was heard to say that he “got the nigger.”3
Another friend testified that he was with defendant when defendant threw the knife used to stab
the victim into the river.
1
Defendant was originally charged with open murder. However, he was convicted of seconddegree murder.
2
This wound caused excessive blood loss.
3
Defendant told other friends that the victim was poking him with an umbrella and that he
stabbed the victim to defend himself.
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At trial, defendant testified that he picked up the victim in order to trade some homegrown marijuana for crack cocaine. Twice the victim directed defendant to a location where the
victim left with the marijuana and returned with crack cocaine, which the two men then smoked
together. Defendant wanted more crack cocaine, so they went to defendant’s house to retrieve
more marijuana to trade with, whereupon the victim made a telephone call and said that he could
arrange another trade. The victim then directed defendant to another location and left with the
marijuana as before. Subsequently, defendant began to look for him. The victim, when spotted
by defendant, began to run. Defendant pursued the victim. The chase ended at defendant’s car.
The victim threw the marijuana to the ground near the rear bumper. Defendant testified that as
he reached to pick it up, the victim stabbed at him with an umbrella. Defendant then took out his
knife and the victim laughed, saying, “Oh, you got a knife.” The victim then tried to kick
defendant in the groin but defendant brought his arm down to defend himself, stabbing the victim
in the leg. Defendant asserted that the victim then came at him again and when defendant pushed
him away, he stabbed him in the side. Defendant then said to the victim, “[D]on’t ever come
back to my house, because I’ll fix you.” Defendant claimed that he did not intend to kill the
victim and that he threw the knife in the river because he was afraid.
As above indicated, the jury found defendant guilty of second-degree murder. Before
trial, however, an issue arose regarding whether defendant would be allowed to present evidence
of his mental disorders to show that he was very susceptible to provocation and to explain his
behavior after the stabbing. The issue of defendant’s mental condition first arose when defense
counsel requested an adjournment of trial so that defendant could receive medications in the jail
that would enable him to testify without suffering a panic attack. Defense counsel indicated that,
although defendant was not asserting an insanity or diminished capacity defense, defendant might
submit evidence of a mental condition in order to explain his behavior after the stabbing.
On the day trial was scheduled to begin, the prosecutor moved to strike defendant’s
expert witnesses, arguing that they would testify regarding defendant’s purported mental
condition and that the prosecutor should be given an opportunity to have defendant examined.
Defense counsel explained that the testimony of two psychologists would be offered to show that
defendant suffered from bipolar disorder, anxiety disorder, and panic disorder. According to
defense counsel, this testimony would be used for two purposes: (1) to explain defendant’s
behavior after the stabbing, such as his excitedness, and (2) to demonstrate that defendant was
more susceptible to provocation than a mentally healthy person. Defense counsel stressed that,
because defendant was not asserting defenses of insanity or diminished capacity, the prosecutor
was not entitled to perform a forensic psychological evaluation of defendant.
The trial court compared defendant’s provocation argument to a diminished capacity
defense, in that defendant was arguing that the jury should take his mental disorders into account.
The court stated that if defendant was offering the testimony only to explain his post-incident
behavior, then the prosecutor could simply respond with rebuttal testimony. However, where the
proffered testimony went to the heart of the incident itself, the court considered it to be evidence
of diminished capacity and required that the prosecutor be given an opportunity to evaluate
defendant’s mental condition. The court signed a standard form order for a criminal
responsibility evaluation. It ordered defendant to undergo an evaluation, relating to a claim of
insanity or diminished capacity, at the Center for Forensic Psychiatry.
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Defendant moved for reconsideration, arguing that he was not raising either an insanity or
a diminished capacity defense and, therefore, should not be required to undergo an evaluation.
Defendant also moved for a protective order to exempt him from answering any questions about
the specific facts of the case during the evaluation. The court held that if defendant put his
mental condition at issue, the prosecutor must be given an opportunity to evaluate defendant in
order to challenge the assertion that he suffered from a mental disorder. Defense counsel asked
for a different order than the standard criminal responsibility evaluation order. The court
indicated that it did not “have a big problem with that.” Defendant’s motion for reconsideration
was denied. No alternative order was ever prepared by or presented to the trial court.
On the first day of trial, the prosecutor moved to exclude any evidence of defendant’s
mental condition because defendant had refused to comply with the court’s order to undergo an
evaluation. In response, defense counsel listed the reasons for which the evidence would be
offered: (1) to explain defendant’s excited state when he discussed the event, (2) to explain
defendant’s failure to surrender, (3) to explain defendant’s demeanor while testifying, and (4) to
justify an argument that the standard for adequate provocation should be based on defendant’s
subjective mental state, not an objective reasonable-person standard. The prosecutor argued that
all these purposes assumed that defendant, in fact, suffered from a mental condition, which
assertion the prosecutor indicated he was unable to rebut effectively without an evaluation. The
court agreed with the prosecutor, noting that defendant’s witnesses would testify based on a fact
that the prosecutor would be unable to impeach. The court stated that the prosecutor should be
allowed to challenge whether defendant even suffered from a mental disorder. Therefore, the
court precluded defendant from introducing any evidence that he suffered from a mental disorder.
However, the court held that defendant would be allowed to introduce evidence from family
members or friends that defendant was an excitable person who was easily provoked, as long as
they did not “pin any labels on him.”
After defendant’s conviction and appeal to this Court, he requested that this Court remand
the matter to the trial court for an evidentiary hearing to expand the record. Defendant sought to
refute assertions in the prosecutor’s brief on appeal that he “sandbagged” the trial court and the
Forensic Center by refusing to undergo an evaluation. This Court granted defendant’s motion to
remand. Thereafter, an evidentiary hearing was held. At the evidentiary hearing, the trial court
noted that it had been agreeable or at least unopposed to defendant submitting to an evaluation
which was more focused than a criminal responsibility evaluation. Dr. Stephen Norris, a clinical
psychologist at the Center for Forensic Psychiatry, testified that he received the court’s order that
defendant be evaluated for criminal responsibility.4 When defendant arrived, however, he
advised Dr. Norris that his attorney told him not to submit to the evaluation. Dr. Norris
contacted defense counsel who explained that the defense was not insanity or diminished
capacity and that he did not want the criminal responsibility evaluation performed. Dr. Norris
also testified that defense counsel did not specifically ask for a more limited evaluation.
4
According to Dr. Norris, he would have been required to ask defendant questions about the
facts of the case in order to conduct a criminal responsibility evaluation.
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The trial court made written findings on remand. The court found that, although it had
signed a standard form order that referred to a criminal responsibility evaluation, the pretrial
hearings “make clear that everyone understood that the Court’s order was not intended to
determine criminal responsibility in the traditional sense.” The court also noted that, had
defendant requested, the court would have signed an alternative order, but “[n]o such order was
ever requested on the record or presented.” The court noted that it was never its intention to
require defendant to answer questions about the facts of the case. Defense counsel, however,
never offered to draft an alternate order and did not inform the forensic examiner that defendant
would be willing to undergo an evaluation that did not include questions about the facts of the
case. The court made the following conclusions based on its factual findings:
1) That [the court] never imposed any requirement that Defendant must
discuss the facts of the case in the course of a mental evaluation. This Court
would have signed an alternative order which would not have required Defendant
to discuss the facts of the case.
2) That defense counsel did not discuss with the forensic examiner how
his client could undergo a psychological evaluation to determine whether he
suffered from mental illness where the facts of the case were not discussed. More
importantly, counsel never tendered an order which would have allowed such an
evaluation because his client was opposed to any mental examination.
3) Neither the testimony on remand nor the argument at the pretrial
hearings of January, 1996 supports a reading of this Court’s ruling on the Motion
for Reconsideration that would foreclose substitution of an order different than the
one calling for the standard forensic evaluation.
On appeal, defendant first argues that the trial court lacked authority to order defendant to
undergo a criminal responsibility evaluation and that the trial court abused its discretion by
excluding evidence of defendant’s mental disorders from trial. Defendant claims that evidence
of his mental disorders would have been offered to explain defendant’s behavior after the
stabbing, as well as to demonstrate that he was more susceptible to provocation than an average
person. With regard to defendant’s claim that the trial court lacked authority to order him to
undergo an evaluation, we disagree. By seeking to have the jury consider his mental condition at
the time the crime was committed in deciding whether there was sufficient provocation from
defendant’s perspective, the defendant was, in essence, seeking to present a back-door
diminished capacity defense. Therefore, the court had authority to order defendant to undergo an
evaluation. People v Mangiapane, 85 Mich App 379, 395; 271 NW2d 240 (1978). Furthermore,
because defendant refused to submit to the examination, the court properly barred defendant’s
experts’ testimony regarding his alleged mental disorders.
MCL 768.20a(4); MSA
28.1043(1)(4).
In any event, even if the trial court erred in excluding the evidence, the error was
harmless. Defendant’s main purpose for introducing evidence of his alleged mental disorders
was improper. Defendant argues that, because of his mental disorders, he was more susceptible
to provocation than an ordinary person and that the jury should have been instructed to evaluate
the adequacy of the provocation by a subjective standard. Defendant is mistaken. In People v
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Sullivan, 231 Mich App 510, 519-520; 586 NW2d 578 (1998), aff’d 461 Mich 986; 609 NW2d
193 (2000), this Court held that a defendant’s special traits, including mental disorders, may not
be considered in determining the adequacy of the provocation. Rather, a reasonable person
standard governs. Id. Additionally, as defendant acknowledges, the defense presented at trial
was self-defense, not diminished capacity. Moreover, the other purposed for which defendant
offered the mental disorder evidence was to explain his behavior after the stabbing. This is not a
defense, but rather an issue of the weight and effect of defendant’s post-homicide behavior.
Under these circumstances, we hold defendant was not prejudiced by the trial court’s decision to
disallow the evidence.5
Next, defendant claims that the trial court erred in refusing to give a special jury
instruction indicating that the prosecutor had the burden of proving, beyond a reasonable doubt,
that defendant did not act out of passion or anger. This instruction was necessary, according to
defendant, because the instructions given to the jury on the definition of voluntary manslaughter
might have allowed the jury to conclude that it was defendant who bore the burden of proving
that he acted out of the heat of passion.6 Claims of instructional error are reviewed de novo.
People v Reid, 233 Mich App 457, 466; 592 NW2d 767 (1999). The instructions are reviewed as
a whole to determine whether any error requiring reversal exists. People v Bartlett, 231 Mich
App 139, 143; 585 NW2d 341 (1998). “Even if somewhat imperfect, instructions do not create
error if they fairly present to the jury the issues tried and sufficiently protect the defendant’s
rights.” Id at 143-144. Here, the instructions given sufficiently protected defendant’s rights.
The substance of defendant’s special instruction was covered by the trial court’s instruction to
the jury that, in order to convict defendant of murder, the prosecutor must prove that the killing
did not occur under circumstances that would reduce it to a lesser offense. The court also
instructed the jury that murder could be reduced to manslaughter under certain circumstances.
The court then set forth those mitigating circumstances for the jury. Therefore, viewed as a
whole, the instructions informed the jury that it was the prosecutor, not defendant, who was
required to prove that the mitigating circumstances did not occur. Under these circumstances,
defendant’s special instruction was unnecessary.
Next, defendant claims that the trial court erred by failing to instruct the jury on the
definition of great bodily harm. Defendant failed to request that such an instruction be given to
5
Moreover, although defendant now claims that he would have submitted to a psychological
evaluation if a more narrow order had been entered which did not require him to discuss the facts
of the case, defendant never requested that such an order be entered even though it is clear from
the record that the trial court was willing to enter the more restrictive order. Nor can we say that
defense counsel’s failure to present a more restrictive order constituted ineffective assistance of
counsel. Defendant has not overcome the strong presumption that defense counsel’s refusal to
allow defendant to submit to a mental health evaluation was a matter of trial strategy. People v
Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999).
6
Because defendant objected to the instruction given and requested a supplemental instruction,
this issue is preserved for appellate review. People v Gomez, 229 Mich App 329, 332; 581
NW2d 289 (1998); People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996).
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the jury. Therefore, this issue is forfeited unless defendant demonstrates plain error that affected
defendant’s substantial rights. People v Carines, 460 Mich 750, 763, 767; 597 NW2d 130
(1999). Defendant does not cite any authority to support his argument that the term “great bodily
harm” is a term of art that must be specifically defined for a jury. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). In any event, the term
“great bodily harm” is not obscure or difficult to understand, and defendant does not indicate
how the proceedings would have been affected had the jury been given a specific definition of
“great bodily harm.” He has not demonstrated plain error that would have affected the outcome
of the proceedings. This issue, therefore, is forfeited. Carines, supra, 460 Mich at 763.
Defendant also argues that the trial court’s instruction to the jury on the defense of
accident constitutes error requiring reversal. Defendant did object to the jury instruction
regarding the defense of accident. Therefore, this claim is preserved for appellate review.
People v Gomez, 229 Mich App 329, 332; 581 NW2d 289 (1998). However, we find that it is
without merit. The trial court instructed the jury that “[i]f the Defendant did not mean to kill, or
did not realize that what he did would probably cause the death or cause great bodily harm then
he is not guilty of murder.” Defendant states in his brief on appeal that “this instruction permitted
the jury to find malice from the mere fact of a stab wound to [the victim’s] leg, if it found that
that amounted to great bodily harm, without finding that [the] resulting death must have been
foreseeable to [defendant].” Thus, defendant seems to argue that, even if defendant knew that
great bodily harm would result, the murder was accidental because he did not know that death
would result. Defendant provides no authority to support this proposition. Kelly, supra, 231
Mich App 641. In any event, it is legally incorrect. To accept defendant’s argument would
vitiate the elements of second-degree murder. One who, with malice and without justification or
excuse, causes the death of another person is guilty of second-degree murder. People v Goecke,
457 Mich 442, 463-464; 579 NW2d 868 (1998). “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.,
p 464. A specific intent to kill or harm is not required. Id., p 466. Rather, ”[t]he intent to do an
act in obvious disregard of life-endangering consequences is a malicious intent.” Id. Thus, it
would be improper to excuse homicide as accidental where the defendant disregarded the
likelihood of great bodily harm, merely because the defendant did not foresee or intend that death
would result.
Defendant also claims that the trial court erred by denying his motion for a directed
verdict on the charge of first-degree murder. We disagree. First-degree premeditated murder is
defined in MCL 750.316(1)(a); MSA 28.548(1)(a) as a “willful, deliberate, and premeditated
killing.” A conviction of first-degree, premeditated murder thus requires proof “that the
defendant intentionally killed the victim and that the act of killing was premeditated and
deliberate.” Kelly, supra, 231 Mich App at 642. These elements may be inferred from the
circumstances surrounding the killing. People v Ortiz-Kehoe, 237 Mich App 508, 520; 603
NW2d 802 (1999). “Premeditation and deliberation require sufficient time to allow the
defendant to take a ‘second look.’” Kelly, supra, 231 Mich App at 642. However, “[o]ne cannot
instantaneously premeditate a murder.” People v Plummer, 229 Mich App 293, 305; 581 NW2d
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753 (1998). Rather, there must be “substantially more reflection on and comprehension of the
nature of the act than the mere amount of thought necessary to form the intent to kill.” Id. at 301.
A non-exhaustive list of factors which may be considered to establish premeditation includes:
“(1) the previous relationship between the defendant and the victim; (2) the defendant’s actions
before and after the crime; and (3) the circumstances of the killing itself, including the weapon
used and the location of the wounds inflicted.” Id. at 300.
In this case, viewing the evidence presented by the prosecutor up to the time the motion
for a directed verdict was made in the light most favorable to the prosecution, as we are required
to do, People v Crawford, 232 Mich App 608, 615-616; 591 NW2d 669 (1998), we find that a
rational trier of fact could have found that the essential elements of first-degree murder were
proven beyond a reasonable doubt. There was sufficient evidence from which a reasonable jury
could conclude that defendant had an opportunity to take a “second look” before carrying out his
intention to kill the victim. The prosecutor presented evidence that defendant looked for and
chased down the unarmed victim. He then stabbed the victim at least twice and told him “That’ll
show you,” and “I told you don’t f[uck] with me.” After the stabbing, defendant told a friend that
he “got the nigger.” Thus, defendant’s actions before and after the crime indicate that the killing
was premeditated. Plummer, supra, 229 Mich App at 300. Moreover, the circumstances of the
killing itself, including the location of the wounds inflicted, demonstrates premeditation. Id.
Although the use of a knife, alone, does not raise an inference of premeditation, People v Oster,
67 Mich App 490, 497; 241 NW2d 260 (1976), the victim suffered defensive wounds. This can
be evidence of premeditation. People v Johnson, 460 Mich 720, 733; 597 NW2d 73 (1999). In
sum, viewing the evidence presented up to the time of defendant’s motion in the light most
favorable to the prosecutor, we conclude that the trial court did not err by denying defendant’s
motion for a directed verdict.
Furthermore, contrary to defendant’s contention on appeal, the evidence presented at trial
was clearly sufficient to support defendant’s conviction for second-degree murder. Seconddegree murder is defined by statute as all kinds of murder other than first-degree murder. MCL
750.317; MSA 28.549. “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.” Goecke, supra,
457 Mich at 463-464. Malice means “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. at 464. In this case, defendant
admitted causing the victim’s death, so the first and second elements were met. The third
element, malice, may be inferred from defendant’s use of a knife—a deadly weapon. Carines,
supra, 460 Mich at 760; People v Turner, 213 Mich App 558, 567; 540 NW2d 728 (1995).
Moreover, viewing the evidence in the light most favorable to the prosecutor, defendant’s claim
of self-defense is overcome by the evidence that instead of just leaving the scene, defendant
looked for the unarmed victim, chased him down, and stabbed him at least twice. The evidence
was sufficient to support the second-degree murder conviction.7
7
Having found that the evidence was sufficient to support defendant’s conviction of seconddegree murder, we need not address defendant’s claim that the verdict was against the great
weight of the evidence.
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Next, we reject defendant’s claim that the trial court erred by refusing to instruct the jury
on imperfect self-defense under an excessive force theory. Such an instruction is simply not
warranted under Michigan case law. People v Butler, 193 Mich App 63, 67; 483 NW2d 430
(1992); People v Amos, 163 Mich App 50, 56-57; 414 NW2d 147 (1987). Defendant also asserts
that the trial court should have instructed the jury on imperfect self-defense. However, defendant
failed to request this instruction and has not demonstrated outcome-determinative plain error;
therefore defendant has forfeited review of this issue on appeal. Carines, supra, 460 Mich at
763.
We also reject defendant’s claim that the trial court erred by refusing to give defendant’s
special jury instruction on reasonable doubt. “To pass scrutiny, a reasonable doubt instruction,
when read in its entirety, must leave no doubt in the mind of the reviewing court that the jury
understood the burden that was placed upon the prosecutor and what constituted a reasonable
doubt.” People v Hubbard (After Remand), 217 Mich App 459, 487; 552 NW2d 493 (1996).
“[T]he instruction must convey to the jurors that a reasonable doubt is an honest doubt based
upon reason.” People v Jackson, 167 Mich App 388, 391; 421 NW2d 697 (1988). This Court
has repeatedly held that CJI2d 3.2(3), the instruction given in this case, is an adequate
reasonable-doubt instruction. People v Snider, 239 Mich App 393, 420-421; 608 NW2d 502
(2000); People v Cooper, 236 Mich App 643, 656; 601 NW2d 409 (1999); Hubbard, supra, 217
Mich App 487-488. Indeed, the standard jury instruction is almost identical to the instruction
requested by defendant. It merely lacks the “moral certainty” language. The failure to
incorporate such language in a reasonable-doubt instruction, however, is not error. Jackson,
supra, 167 Mich App at 390-391. The jury was adequately instructed that a reasonable doubt is
an honest doubt based on reason. Id. at 391.8
Next, defendant argues that the prosecutor impermissibly injected race into the trial. We
disagree. This Court reviews claims of prosecutorial misconduct case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial. People
v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). However, because defendant failed
to object to the alleged impropriety, this issue is reviewed for plain error. Carines, supra, 460
Mich at 752-753, 764; People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). Thus,
to avoid forfeiture of the issue, defendant must demonstrate plain error that affected his
substantial rights, i.e., that affected the outcome of the proceedings. Carines, supra, 460 Mich at
763-764; Schutte, supra, 240 Mich App at 720. Defendant has failed to show plain error.
Prosecutors are free to argue all reasonable inferences from the evidence. Bahoda, supra, 448
Mich at 282; People v Fisher, 220 Mich App 133, 156; 559 NW2d 318 (1996). The prosecutor’s
8
Additionally, we note that, contrary to defendant’s claim on appeal, the prosecutor did not
denigrate the burden of proof, but merely responded to defense counsel’s characterization of the
concept of reasonable doubt. A prosecutor’s comments must be considered in light of defense
arguments. People v Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997). The
prosecutor did not attempt to give the jury a definition of reasonable doubt, but simply asked the
jury to listen to the judge’s definition. This was not improper and did not constitute prosecutorial
misconduct.
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comments about the role racism played in the murder were permissible in light of the evidence
presented at trial, including defendant’s comments to his friend that “he got the nigger.”
Defendant also claims that the prosecutor improperly vouched for the credibility of
prosecution witnesses. Again, defendant failed to object to the alleged impropriety; therefore,
this issue is reviewed for outcome-determinative plain error. Carines, supra, 460 Mich at 752753, 764; Schutte, supra, 240 Mich App at 720. Although a prosecutor may not vouch for the
credibility of a witness nor imply that the prosecutor has some special knowledge that the witness
is testifying truthfully, a prosecutor may argue from the facts that the witness is credible. People
v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). Some of the complained of
comments may properly be characterized as argument relating to witness credibility; hence, these
remarks were not improper. Id. As to the comments that arguably seem to imply some special
knowledge on the part of the prosecutor, those comments were brief. Moreover, the trial court
instructed the jury that the attorneys’ statements and arguments were not evidence. This
instruction dispelled any prejudice under the circumstances of this case. Bahoda, supra, 448
Mich at 281. Defendant has not demonstrated outcome-determinative plain error. Carines,
supra, 460 Mich at 763.
Defendant next asserts that his twenty-year minimum sentence, which exceeded the
sentencing guidelines range of four to fifteen years’ imprisonment, was disproportionate and
constituted an abuse of discretion. We disagree. Sentencing issues are reviewed by this Court
for an abuse of discretion by the trial court. People v Coles, 417 Mich 523, 550; 339 NW2d 440
(1983); People v Sabin (On Second Remand), ___ Mich App ___; ___ NW2d ___ (Docket No.
187226, issued 9/26/00), slip op at 3. “A trial court abuses its discretion when it imposes a
sentence that is not proportional to the seriousness of the circumstances surrounding the offense
and the offender.” Sabin, supra, ___ Mich App ___, slip op at 3. See also People v
Merriweather, 447 Mich 799, 806; 527 NW2d 460 (1994); People v Milbourn, 435 Mich 630,
635-636, 654; 461 NW2d 1 (1990). A trial court may sentence outside the guidelines when it
finds that the range imposed by the guidelines is disproportionate to a defendant’s prior record
and the seriousness of the crime. MCR 6.425(D)(1); Milbourn, supra, 435 Mich at 657.
However, the test is not whether a sentence is within the guidelines range, but whether the
sentence reflects the seriousness of the matter. People v Houston, 448 Mich 312, 320; 532
NW2d 508 (1995); Milbourn, supra, 435 Mich at 661.
In this case, the trial court sentenced defendant to a term of imprisonment of twenty to
thirty years. The statutory penalty for second-degree murder is life or any term of years. MCL
750.317; MSA 28.549. Thus, defendant was not sentenced to the most severe penalty allowed
under the law. Moreover, although defendant’s twenty-year minimum sentence exceeds the
sentencing guidelines recommended range, defendant committed a very serious offense; he
caused the death of another person. Additionally, as the trial court voted, defendant had ample
opportunity to walk away from this situation but chose instead to pursue the victim, defendant
inflicted serious wounds on the victim, but did nothing to assist the victim or to bring the
situation to the attention of someone who might render aid, and defendant purposefully attempted
to cover-up his involvement in this matter. In light of these circumstances, we cannot conclude
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that the sentence constituted an abuse of discretion.9 The sentence was commensurate with the
seriousness of the offense defendant committed.
Defendant also makes various claims of alleged instances of ineffective assistance of
counsel. Effective assistance of counsel is presumed, and defendant’s burden to prove otherwise
is a heavy one. People v Eloby (After Remand), 215 Mich App 472, 476; 547 NW2d 48 (1996).
To justify reversal, “a defendant must show that counsel’s performance fell below an objective
standard of reasonableness, and that the representation so prejudiced the defendant as to deprive
him of a fair trial.” People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). Because no
evidentiary hearing was held regarding defendant’s claims of ineffective assistance of counsel,
our review is limited to mistakes apparent on the record. People v Ginther, 390 Mich 436, 443;
212 NW2d 922 (1973); People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998). We
have reviewed the record and conclude that defendant has failed to show that counsel’s
performance was objectively unreasonable and that he was prejudiced by counsel’s defective
performance. People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997).
We also reject defendant’s claim that the trial court abused its discretion by excluding
evidence of the victim’s prior convictions and reputation for stealing. The evidence of the
victim’s reputation for theft would not tend to show that the victim was the aggressor. Rather, it
would only demonstrate that the victim was attempting to steal defendant’s marijuana, a fact not
disputed by the prosecutor at trial. As to the evidence of the victim’s prior convictions, including
a conviction for armed robbery, they would tend to show that he had a violent character and was
the aggressor. Thus, the convictions would be admissible under MRE 404(a)(2). People v
Harris, 458 Mich 310, 315; 583 NW2d 680 (1998). However, where a character trait is
admissible, proof of that character trait is limited to reputation or opinion evidence—evidence of
specific instances of conduct is not allowed. MRE 405(a). The only proffered evidence of the
victim’s alleged violent character was the victim’s prior convictions. These were specific
instances of conduct; therefore, the trial court did not abuse its discretion by excluding evidence
of the victim’s prior convictions.
Next, defendant argues that the trial court, through a preliminary instruction to the jury
before trial began, expressly foreclosed the possibility of having testimony reread during
deliberations. Jury instructions of any sort must be objected to in order to preserve claims of
instructional error. Carines, supra, 460 Mich at 767. Defendant’s failure to object to the trial
court’s instruction forfeits this claim unless defendant demonstrates outcome-determinative plain
error. Id. at 763. He has failed to do so. A trial court may not foreclose all possibility of having
9
As to defendant’s claim that the trial court erred in scoring the guidelines, defendant argued
below that offense variable three should be reduced from twenty-five points to ten points, which
would result in a guidelines’ range of four to fifteen years. The trial court agreed, although not
for the reasons asserted on appeal, scored the offense variable at ten, and accepted defendant’s
guidelines range of four to fifteen years. Therefore, defendant’s alternate grounds for reducing
offense variable three from twenty-five to ten points is moot. The trial court accepted
defendant’s recommended scoring of the guidelines and this Court would be unable to grant any
relief because defendant already received what he sought – a guidelines range of four to fifteen
years.
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testimony reread to the jury. MCR 6.414(H); People v Smith, 396 Mich 109, 110-111; 240
NW2d 202 (1976).
This case does not involve a decision whether to grant the jury’s request to have certain
testimony reread, since the jury never made such a request. Rather, defendant claims that the
trial court effectively prevented the jury from requesting to have testimony reread. We disagree.
The trial court’s instruction did not completely foreclose the rereading of testimony.10 Rather, it
simply conveyed to the jurors the importance of paying close attention to the evidence presented
at trial. This was not improper.11 Moreover, the comment was made before trial began, not at
the time of final jury instructions or following a request to have certain testimony reread. Under
these circumstances, defendant has failed to demonstrate outcome-determinative plain error.
Carines, supra, 460 Mich at 767.
Defendant also claims that the prosecutor purchased the testimony of Jeffrey Hayward.
Again, unpreserved claims of prosecutorial misconduct are reviewed for outcome-determinative
plain error. Carines, supra, 460 Mich at 752-753, 764; Schutte, supra, 240 Mich App at 720.
Defendant’s claim that the prosecutor purchased Hayward’s testimony is a mischaracterization of
the record. There is no indication in the record that the prosecutor paid Hayward in exchange for
his testimony. In fact, Hayward specifically testified that Crime Stoppers paid him two hundred
dollars for “coming forward” with information, not for his testimony. Therefore, we reject
defendant’s claim of prosecutorial misconduct in this regard. Without any record support for his
charges of impropriety, defendant has also failed to demonstrate that defense counsel was
ineffective for failing to raise this claim in the trial court.
Lastly, defendant claims that he was denied a fair trial by cumulative error. We disagree.
The test to determine whether reversal is required for cumulative error is not whether there are
some irregularities but whether defendant was denied a fair trial. People v Duff, 165 Mich App
530, 539; 419 NW2d 600 (1987). The cumulative effect of a number of errors may in some
cases require reversal, even where no single error, standing alone, would warrant reversal.
People v Cooper, 236 Mich App 643, 659-660; 601 NW2d 409 (1999). However, “only actual
errors are aggregated to determine their cumulative effect.” Bahoda, supra, 448 Mich at 292, n
64. Where, as here, no actual errors occurred, or where any arguable errors were of little
10
In its preliminary jury instructions before trial began, the trial court made the following
remarks: “I do not believe that it is desirable or helpful for you to take notes during this trial. If
you take notes you may not be able to direct your full attention to the evidence, so please do not
take any notes while you’re in the courtroom. I would also indicate that while we’re taking down
these proceedings it is virtually impossible for us to have a transcript available for you to read at
the end of this trial, so it is imperative that you all pay very close attention to the evidence as it is
presented, to the arguments of counsel, and the Court’s instructions; although, at the end of the
trial you will receive a copy of the Court’s instructions in this matter.”
11
Because the trial court’s preliminary instruction was not improper, defense counsel was not
ineffective for failing to object to it. Counsel need not make meritless objections. People v
Torres, 222 Mich App 411, 425; 564 NW2d 149 (1997).
-11-
consequence, reversal is not warranted. Cooper, supra, 236 Mich App at 660; People v Mayhew,
236 Mich App 112, 128; 600 NW2d 370 (1999).
Affirmed.
/s/ Michael J. Kelly
/s/ William C. Whitbeck
/s/ Jeffrey G. Collins
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