PEOPLE OF MI V LONNELL V HAYWOOD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 16, 2001
Plaintiff-Appellee,
v
No. 214690
Wayne Circuit Court
LC No. 97-500792
LONNELL V. HAYWOOD,
Defendant-Appellant.
Before: Neff, P.J., and Talbot and J.B. Sullivan,* J.J.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree murder, MCL
750.316(1)(a); MSA 28.548(1)(a), and possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life in prison for the firstdegree murder conviction and two years in prison for the felony-firearm conviction. Defendant
appeals as of right. We affirm.
Defendant’s convictions arose from the shooting death of Robert Hill, whom defendant
followed into a store, fought with and then shot seven times, the last shots as Hill’s body lay on
the floor. Defendant first claims that the trial court erred in failing to sua sponte instruct the jury
on involuntary manslaughter. We disagree. This Court reviews jury instructions in their entirety
to determine whether the trial court committed error requiring reversal. People v Crawford, 232
Mich App 608, 619; 591 NW2d 669 (1998). Jury instructions must include all the elements of
the charged offense and must not exclude material issues, defenses, and theories that are
supported by the evidence. Id. Involuntary manslaughter is defined as 1) the killing of another
without malice and unintentionally, 2) in doing some unlawful act not amounting to a felony nor
naturally intending to cause death or great bodily harm, or 3) in negligently doing some act
lawful in itself, or 4) by the negligent omission to perform a legal duty. People v Clark, 453
Mich 572, 578; 556 NW2d 820 (1996). The kind of negligence required for manslaughter is
more than simple or ordinary negligence, and is often described as criminal negligence, gross
negligence or willful wantonness and recklessness. Id.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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In this case, defendant neither requested an involuntary manslaughter instruction, nor
objected to the jury instructions as given. The issue is therefore not preserved for appeal. People
v Snider, 239 Mich App 393, 420; 608 NW2d 502 (2000). Further, the evidence does not
support a conviction of involuntary manslaughter. See People v Bailey, 451 Mich 657, 671; 549
NW2d 325, amended 453 Mich 1204; 551 NW2d 163 (1996). In any event, involuntary
manslaughter is a cognate lesser included offense of murder, id., at 672-673, and refusal by the
court to give the instruction is subject to a harmless error analysis. People v Mosko, 441 Mich
496, 501-502; 495 NW2d 534 (1992); People v Beach, 429 Mich 450, 491; 418 NW2d 861
(1988). Here, the jury rejected lesser charges of second-degree murder and voluntary
manslaughter, rendering any error harmless.
Defendant next argues that the trial court erred in failing to grant his attorney’s motion to
withdraw prior to sentencing. We again disagree. This Court reviews for an abuse of discretion
a trial court’s denial of counsel’s motion to withdraw and defendant’s motion for adjournment to
obtain new counsel. People v Echavarria, 233 Mich App 356, 368-369; 592 NW2d 737 (1999).
The factors to be considered are: (1) whether the defendant is asserting a constitutional right, (2)
whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute
with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the
defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated
prejudice resulting from the trial court's decision. Id., at 369. Here, while defendant is asserting
his constitutional right to counsel, the only reason offered was that he was not comfortable with
his attorney. Moreover, defendant was convicted on April 30, 1998, but negligently waited until
July 17, 1998, the day of sentencing, to request substitute counsel. Finally, defendant cannot
establish prejudice because, in accordance with MCL 769.1(1); MSA 28.1072 (1), defendant was
sentenced as an adult, and the statutorily mandated sentences for first-degree murder and felonyfirearm preclude the use of discretion by the sentencing court.
Defendant’s next two claims of error concern the sentencing dispositional hearing on an
unrelated case, and therefore are not properly before this Court.
Finally, in a supplemental brief in propria persona, defendant claims that he was denied
the effective assistance of counsel because counsel did not call him to testify; advanced a theory
of misidentification when the evidence, that the shooting was accidental or provoked, supported
a finding of manslaughter; failed to call an expert witness; and ineffectively cross-examined the
prosecution’s medical witness. Because defendant failed to preserve this issue by an evidentiary
hearing or a motion for new trial, this Court’s review of defendant’s claim is limited to errors
apparent from the record. Snider, supra, at 423. To establish a claim of ineffective assistance of
counsel, the defendant must show that counsel’s performance was deficient and that there is a
reasonable probability that, but for the deficiency, the factfinder would not have convicted the
defendant. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). Defendant must
overcome the strong presumption that his counsel’s action constituted sound trial strategy, and
bears the burden of proving otherwise as measured by an objective standard of reasonableness.
Id.
We note initially that defendant agreed on the record with counsel’s recommendation that
he not testify, stating to the court, “I don’t want to take the stand.” Additionally, he fails to
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indicate either the substance of his testimony or how it would have affected the outcome of the
case. In any event, all of defendant’s claims of ineffective assistance of counsel are matters of
trial strategy which this Court will not assess with the benefit of hindsight. People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999). Finally, considering the overwhelming evidence of
defendant’s guilt, we conclude that counsel’s representation was neither deficient nor prejudicial.
Toma, supra.
Affirmed.
/s/ Janet T. Neff
/s/ Michael J. Talbot
/s/ Joseph B. Sullivan
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