PEOPLE OF MI V DEON D JACKSON

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED September 20, 2002 Plaintiff-Appellee, v No. 229097 Wayne Circuit Court LC No. 00-001759 DEON D. JACKSON, Defendant-Appellant. Before: O’Connell, P.J., and Griffin and Hoekstra, JJ. PER CURIAM. Following a bench trial, defendant was convicted of assault with intent to murder, MCL 750.83, three counts of assault with intent to do great bodily harm less than murder, MCL 750.84, and possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of seventeen to fifty years for the assault with intent to murder conviction, and three to ten years for each assault with intent to do great bodily harm conviction, plus a consecutive two-year term for the felony-firearm conviction. Defendant appeals as of right. We affirm. I Defendant first argues that his waiver of his right to a jury trial was not voluntarily, intelligently, and understandingly made. Defendant claims that his waiver was based on defense counsel’s unfulfilled promise of leniency and counsel’s indication that he had a prior professional relationship with the judge.1 Following an evidentiary hearing, the trial court denied defendant’s motion for a new trial on this basis, concluding that the waiver was voluntarily, intelligently, and understandingly made. We agree with the trial court. This Court reviews a trial court’s denial of a motion for a new trial for an abuse of discretion. People v Brown, 239 Mich App 735, 744-745; 610 NW2d 234 (2000). A trial court’s determination that a defendant validly waived his right to a jury trial is reviewed for clear error. People v Leonard, 224 Mich App 569, 595; 569 NW2d 663 (1997). A finding is clearly 1 At the evidentiary hearing, defense counsel testified that he told defendant that he knew the judge, and that defendant may have a better chance with the judge rather than a jury, but indicated that no promises were made by anyone. -1- erroneous where, after reviewing the entire record, we are “left with a definite and firm conviction that a mistake has been made.” People v Parker, 230 Mich App 337, 339; 584 NW2d 336 (1998). A defendant’s waiver of his constitutional right to trial by jury must be made voluntarily, intelligently, and knowingly. People v Godbold, 230 Mich App 508, 512; 585 NW2d 13 (1998); People v Reddick, 187 Mich App 547, 549; 468 NW2d 278 (1991). MCR 6.402(B) sets forth the procedure for securing a proper jury trial waiver: Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding. In the present case, on the first day of trial, defense counsel advised the court that defendant wished to waive his right to a jury. Defense counsel stated on the record that defendant understood his constitutional rights, and defendant had been advised that he should not expect any particular verdict because of his waiver. Thereafter, the trial court made inquiries of defendant. The record demonstrates the trial court complied with the requirements of MCR 6.402(B), and defendant unequivocally testified on the record that there had been no promises of leniency, threats, or coercion. Defendant’s claim that his waiver was based on illusory promises of leniency is contrary to the record made in open court and, therefore, must be rejected. See People v Gist, 188 Mich App 610, 611-612; 470 NW2d 475 (1991). In addition, defendant completed a waiver form, as prescribed by MCL 763.3. Despite his explicit denial that any promises were made, defendant makes much of his interrupted attempt to tell the court about “his understanding” during the waiver proceeding. However, a trial court is not required to engage in a colloquy with a defendant to determine whether a waiver of jury trial is predicated on any promise of leniency or other misleading statements. People v Shields, 200 Mich App 554, 560561; 504 NW2d 711 (1993); People v Margoes, 141 Mich App 220, 223-224; 366 NW2d 254 (1985). Accordingly, the trial court did not clearly err by accepting defendant’s waiver of jury trial, or abuse its discretion by denying his motion for a new trial on this basis. II Defendant next argues there was insufficient evidence to convict him of assault with intent to murder or disprove that he acted in self-defense. He further argues that the verdict is against the great weight of the evidence. The trial court denied defendant’s motion for new trial on this basis. Again, we agree with the trial court. We review the trial court’s findings of fact for clear error, MCR 2.613(C), and give special deference to the trial court’s resolution of factual issues involving the credibility of the witnesses. People v Cartwright, 454 Mich 550, 555; 563 NW2d 208 (1997). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and -2- determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). This Court will not interfere with the trier of fact’s role of determining the weight of evidence or the credibility of witnesses. Id. at 514. In evaluating whether a verdict is against the great weight of the evidence, the question is whether the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998); People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998). Conflicting testimony and questions regarding the credibility of witnesses are not sufficient grounds for granting a new trial. Lemmon, supra at 643. A verdict may be vacated only when it “does not find reasonable support in the evidence, but is more likely to be attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence.” People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1994). To sustain a conviction for assault with intent to murder, the prosecution must establish beyond a reasonable doubt that the defendant committed: “(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v Hoffman, 225 Mich App 103, 111; 570 NW2d 146 (1997); see also MCL 750.83. Circumstantial evidence and reasonable inferences arising from the evidence can constitute satisfactory proof of the elements of the crime. People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996). An intent to kill may be inferred from the facts in evidence, and because the state of an actor’s mind is difficult to prove, only minimal circumstantial evidence is required. People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). Viewed in a light most favorable to the prosecution, the evidence was sufficient to sustain defendant’s conviction for assault with intent to murder. There was evidence at trial that complainant Aaron Williams moved in with his sister, Tiffany Williams, and her boyfriend, defendant, in a house owned by defendant’s mother. After a few months, defendant and the complainant began having conflicts, and the complainant was told to leave. The complainant moved in with a different sister, Dawntra Young. Shortly thereafter, the complainant and Tiffany had an argument and physical altercation, wherein the complainant struck Tiffany, resulting in noticeable injuries. Three days later, the complainant called Tiffany and made arrangements to come to defendant and Tiffany’s home to retrieve his belongings. At Young’s request, defendant’s mother called the house and asked Tiffany to place the complainant’s belongings on the curb. Young drove the complainant to defendant’s house; an eight-year old child was seated in the front passenger seat, and the complainant and Young’s two-week-old child were seated in the back. Defendant’s mother and stepfather followed the complainant and Young to defendant’s house in a separate car to eliminate the possibility of any trouble. After the cars arrived at defendant’s home, Young parked on the street with all of her passengers, including the complainant, remaining in the car, while defendant’s mother knocked on the side door. At that point, defendant charged toward Young’s car, with a club raised in the air and a gun hidden in his waistband underneath his shirt. Defendant’s mother testified that defendant yelled, “come on out man and do what you said you was going to do to me.” At this time, the complainant was still seated in the back of the car. Once defendant was within a few feet of the car, he dropped the club, pulled the gun from his waistband, fired one shot into the back tire, and then fired numerous shots into the front and back of the car, until the weapon was -3- unloaded. Defendant, himself, testified that he shot two or three times into the back car door, “[b]ecause that’s where [the complainant] was sitting.” The complainant was shot in the arm and the spine and, as a result, was left without the use of his lower extremities. Viewed most favorably to the prosecution, this evidence was sufficient to sustain defendant’s conviction for assault with intent to commit murder. The evidence was also sufficient to disprove defendant’s claim of self-defense. Selfdefense requires that the defendant honestly and reasonably believe that he or another2 was in imminent danger of death or serious bodily harm, that the action taken appeared at the time to be immediately necessary, that the defendant was not the initial aggressor, and that the defendant did not use any more force than is necessary to defend himself. People v Kemp, 202 Mich App 318, 322; 508 NW2d 184 (1993). Proof that a defendant’s belief of imminent danger was not honest or reasonable is sufficient to defeat a claim of self-defense or defense of others. People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993). Here, defendant’s self-defense theory was based on the complainant’s prior assault of Tiffany, prior threats against defendant, and the complainant’s history of assaultive and violent behavior, coupled with defendant’s allegation that he observed Aaron reaching under the car seat. Initially, we note that the trial court found that defendant’s claim that he observed the complainant reaching under his seat was not credible, and that any belief defendant may have had that the complainant posed a threat was unreasonable under the circumstances. As previously indicated, special deference is given to a trial court's resolution of factual issues involving the credibility of the witnesses. Cartwright, supra. Further, viewed in a light most favorable to the prosecution, the evidence plainly enabled the trier of fact to find that defendant, not the complainant, was the aggressor and that defendant was not in imminent danger. Again, the complainant never exited the car and was unarmed, yet defendant left the safety of his home, rushed toward the car with a club, pulled out a gun, shot out the back tire thereby disabling the vehicle, and proceeded to fire numerous shots into the car. In addition, there is no evidence that defendant’s actions were in defense of Tiffany, who was standing on the front porch, which was more than thirty-five feet from the car. Even if defendant had reason to fear the complainant because of prior threats or assaults, that does not excuse the requirement that he be in imminent danger at the time of the use of deadly force. Truong (After Remand), supra (even in the face of previous threats, a “preemptive strike” is not any form of self-defense). Accordingly, the evidence was sufficient to disprove defendant’s claim of selfdefense. We further conclude that the verdict is not against the great weight of the evidence. The evidence does not clearly preponderate so heavily against the verdict that a miscarriage of justice would result if the verdict was allowed to stand. Lemmon, supra. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for a new trial on this basis. 2 The right to act in self-defense generally includes the right to defend another. People v Curtis, 52 Mich 616, 622; 18 NW 385 (1884); People v Wright, 25 Mich App 499, 503; 181 NW2d 649 (1970). -4- We note that, within this issue, defendant fleetingly challenges the trial court’s findings as insufficient and inconsistent with the evidence. MCR 2.517 requires a trial court sitting without a jury to find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The requirements of the court rule are satisfied as long as it appears from the court's findings that the court was aware of the factual issues and correctly applied the law. People v Wardlaw, 190 Mich App 318; 475 NW2d 387 (1991). Here, the trial court fully summarized the facts of the case and correctly focused on the elements of the charged crimes. Contrary to defendant’s claim, the trial court’s findings are not inconsistent with the evidence, and the mere fact that defendant disagrees with the outcome is insufficient to warrant reversal. III Defendant also argues that there was insufficient evidence to convict him of three counts of assault with intent to do great bodily harm less than murder, and that the verdicts for those counts are against the great weight of the evidence. The trial court denied defendant’s motion for new trial on this basis. We agree with the trial court. To sustain a conviction for assault with intent to do great bodily harm, the prosecution must establish beyond a reasonable doubt that the defendant committed: (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder. People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). The requisite specific intent may be inferred from the defendant’s conduct. Id. Here, defendant claims there was no evidence that he intended to harm Young or the two children. However, viewed in a light most favorable to the prosecution, defendant’s act of firing a handgun from close range numerous times into the car in which the three victims were seated was sufficient to infer that defendant intended to commit great bodily harm. Id. There was also evidence that, after defendant emptied the gun, Young exited the car in an attempt to take the children to a place of safety. At that point, defendant hit Young in the back of the head with the gun, knocked her to the ground, and proceeded to punch and kick her. The evidence was sufficient to sustain defendant’s convictions for three counts of assault with intent to do great bodily harm. Further, given the evidence presented, the trial court did not abuse its discretion in denying defendant’s motion for a new trial on this basis. Lemmon, supra. IV Next, defendant argues that the trial court’s questioning of witnesses deprived him of a fair trial. We disagree. Because defendant failed to raise this claim below, this Court reviews this unpreserved claim for plain error affecting defendant’s substantial rights, i.e., that it affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People v Collier, 168 Mich App 687, 697; 425 NW2d 118 (1988). A trial court has wide, but not unlimited, discretion and power in the matter of trial conduct. People v Cole, 349 Mich 175, 199-200; 84 NW2d 711 (1957). A trial court may question witnesses in order to clarify testimony or elicit additional relevant information, but the court must exercise caution and restraint to ensure that its questions are not intimidating, -5- argumentative, prejudicial, unfair, or partial. MRE 614(b); People v Conyers, 194 Mich App 395, 404; 487 NW2d 787 (1992). A court’s questioning of a witness does not deprive the defendant of a fair trial if the questions are limited in scope, material to the issues in the case, posed in a neutral manner, and neither add to nor distort the evidence. People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996). The fact that testimony elicited by a trial court’s questions damaged a defendant’s case does not demonstrate that the trial court improperly assumed the role of surrogate prosecutor. Id. at 51. “As long as the questions would be appropriate if asked by either party and, further, do not give the appearance of partiality, . . . a trial court is free to ask questions of witnesses that assist in the search for truth.” Id. at 52. Applying the above criteria, our review of the record indicates that the challenged questions by the trial court to Tiffany were not improper. During defense counsel’s direct examination of Tiffany, she testified that she saw the complainant reach for something on the floor of the car and that she turned her back and then heard shots. This testimony suggested that the complainant acted in conformance with someone reaching for a weapon and, thus, that defendant acted in self-defense. As brought out by the trial court’s questioning, the inconsistency in Tiffany’s testimony was that, after allegedly observing the complainant reach underneath his seat, she did not alert defendant, but rather walked back into the house to watch television. In response to the court’s questions, Tiffany testified that she did not believe that the complainant was reaching for a gun, did not see the complainant with a gun, and did not believe that he had a gun. We conclude that, under these circumstances, the court’s questions were proper because Tiffany’s observations were relevant to the claims in this case, particularly defendant’s claim of self-defense, and the court’s questions helped clarify ambiguities in her testimony. Moreover, the court’s questions were not intimidating, argumentative, prejudicial, unfair, or partial. Cf. Conyers, supra. We note that defendant provides transcript citations to other instances where the trial court allegedly improperly questioned witnesses. Apart from providing the transcript cites, defendant provides no explanation or argument concerning the propriety of the questions. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims.” People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). In any event, we have reviewed the court’s questions and find no judicial impropriety where the questions clarified testimony or elicited additional relevant information and were not prejudicial. Accordingly, defendant has failed to demonstrate plain error, and thus, reversal is not warranted on this basis. V Defendant argues that he was denied a fair and impartial trial because of several instances of prosecutorial misconduct. We disagree. Claims of prosecutorial misconduct are generally reviewed on a case by case basis to determine whether the defendant was denied a fair trial. People v Bahoda, 448 Mich 261, 266267; 531 NW2d 659 (1995); People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). The challenged remarks must be viewed in context. Id. In this case, however, because defendant failed to timely object to the alleged prosecutorial misconduct, this Court reviews this issue for outcome-determinative plain error. Carines, supra; People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). -6- Viewed as a whole and in context, none of the challenged conduct rises to the level of error requiring reversal. Defendant first argues that the prosecutor impermissibly asked him to comment on the credibility of other witnesses. It is improper for the prosecutor to ask a witness to comment on the credibility of another witness because credibility is a determination for the trier of fact. People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). However, we agree with the trial court’s finding that, although the questions may have been improper, they did not deny defendant a fair trial. We are not persuaded that any error in defendant’s testimony affected this bench trial verdict. “A judge, unlike a juror, possesses an understanding of the law which allows him to ignore such errors and to decide a case based solely on the evidence properly admitted at trial.” See People v Jones, 168 Mich App 191, 194; 423 NW2d 614 (1988). Moreover, our review of the record shows that the trial court found defendant guilty on the basis of properly admitted evidence. Because the trial court’s decision was not affected by the disputed testimony, defendant has failed to demonstrate outcome-determinative plain error. Defendant also argues that the prosecutor improperly elicited other acts testimony from the complainant that defendant had offered him a job selling narcotics. Here, the complainant’s reference to selling drugs was inadvertent and unsolicited. The prosecutor merely asked the witness how he came to live with defendant and Tiffany, which merely required the portion of his answer explaining that, after he got out of jail, he did not have a place to live. In general, a nonresponsive volunteered answer to a proper question is not cause for granting a mistrial. People v Kelsey, 303 Mich 715, 717; 7 NW2d 120 (1942); People v Yarbrough (On Remand), 86 Mich App 105, 108; 272 NW2d 345 (1978). Further, there were not any repeated references to defendant’s alleged offer. Accordingly, defendant has failed to demonstrate plain error, and thus, this claim does not warrant reversal. Defendant further argues that the prosecutor improperly accused him of “beating up” his girlfriend. During direct examination, defendant testified that, after the complainant moved into the house, problems arose because the complainant tried to “break up” defendant’s relationship with Tiffany. On cross-examination, the prosecutor challenged defendant by asking whether the complainant’s interference with the relationship was due to his concerns about defendant “beating up Tiffany.” We conclude that once defense counsel elicited testimony concerning the complainant’s interference in the relationship, the circumstances and explanation regarding his intrusive behavior became relevant. See MRE 401. A defendant cannot complain of the admission of testimony that he invited or instigated in an effort to support his defense. In other words, defendant opened the door to the challenged evidence. See, generally, People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995); People v Lipps, 167 Mich App 99, 108; 421 NW2d 586 (1988). Accordingly, because defendant has failed to demonstrate plain error, this issue does not warrant reversal. VI Defendant next argues that he is entitled to a new trial because defense counsel was ineffective. We disagree. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of counsel, a -7- defendant must show that counsel’s performance was below an objective standard of reasonableness under prevailing norms and that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. Id. Defendant first claims that defense counsel was ineffective by failing to present two additional witnesses who observed the complainant’s assault of Tiffany three days before the shooting and the corresponding police report and pictures of Tiffany’s injuries, and by failing to present evidence concerning the complainant’s criminal history and reputation for violence. Defendant claims that this evidence would have bolstered his testimony and his claim of selfdefense.3 Following the evidentiary hearing, the trial court found that, but for these alleged omissions, the outcome of the trial would not have been different and, thus, defendant is not entitled to a new trial. Ineffective assistance of counsel can take the form of a failure to call witnesses or present other evidence only if the failure deprives the defendant of a substantial defense. People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990); People v Julian, 171 Mich App 153, 158159; 429 NW2d 615 (1988); People v Wilson, 159 Mich App 345, 354; 406 NW2d 294 (1987). A defense is substantial if it might have made a difference in the outcome of the trial. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). Here, defendant has not established that counsel’s failure to present the additional evidence prejudiced his defense, i.e., that he was deprived of a substantial defense. First, it is clear from the record that the proposed testimony of the two witnesses would have been cumulative to the testimony offered by Tiffany and that of an additional witness who was present during the assault. Further, there was substantial testimony, including the complainant’s own testimony, that Tiffany was indeed assaulted and injured by the complainant. Accordingly, as the trial court concluded, the additional witnesses and photographs would have been cumulative. More compelling, however, is that in light of the evidence presented at trial, the proposed evidence would have been insignificant to defendant’s self-defense claim. As discussed in part II, defendant’s reason to fear the complainant because of prior threats and assaults did not excuse the requirement that he be in imminent danger at the time he used deadly force. Truong (After Remand), supra. Therefore, defendant has failed to demonstrate that there is a reasonable probability that, but for counsel’s alleged failure to present the additional evidence, the result of the proceedings would have been different. Effinger, supra. Accordingly, defendant is not entitled to a new trial on this basis. Defendant also argues that defense counsel was ineffective for failing to make certain objections. We disagree. Defendant claims that defense counsel was ineffective by failing to object to a police witness’ testimony regarding witnesses’ identifying defendant as the shooter because it was hearsay. However, “[t]hird-party identification testimony by a police officer, including 3 At the hearing, defendant testified that he and Tiffany advised defense counsel of the additional evidence. -8- repetition of the statements of identification, is not hearsay, and the admission of such testimony is within the discretion of the trial court.” MRE 801(d)(1); People v Legrone, 205 Mich App 77, 83; 517 NW2d 270 (1994). Further, it was undisputed that defendant was the shooter. With regard to the remaining claims, as discussed in part V, defendant failed to show that the prosecutor’s conduct denied him a fair trial and, therefore, defense counsel’s failure to object did not prejudice defendant. Further, as discussed in part IV, the trial court’s questioning of certain witnesses was not improper and, therefore, defense counsel was not required to make futile objections. People v Darden, 230 Mich App 597, 604-605; 585 NW2d 27 (1998). Accordingly, because defendant has failed to establish that defense counsel was ineffective during trial, he is not entitled to a new trial on this basis. Pickens, supra; Effinger, supra. VII Defendant’s final claim is that he was denied due process when the trial court sentenced him as a second-offense habitual offender because the prosecutor had not proved he was guilty of the offense, and the court made no such finding. We disagree.4 MCL 769.13(5) provides that the trial court must determine the existence of the defendant’s prior convictions at sentencing or at a separate hearing for that purpose before sentencing. People v Zinn, 217 Mich App 340, 345; 551 NW2d 704 (1996). The existence of a defendant’s prior convictions may be established, as it was in this case, by information contained in the presentence report. MCL 769.13(5); People v Green, 228 Mich App 684, 700; 580 NW2d 444 (1998). Further, due process is satisfied if the sentence is based on accurate information and the defendant had a reasonable opportunity to challenge the information at sentencing. Zinn, supra at 347-348; see also People v Williams, 215 Mich App 234, 236; 544 NW2d 480 (1996). Here, defendant was arraigned on an information that included a notice of enhancement for habitual offender, second offense. The presentence report listed defendant as an habitual offender, and included details of defendant’s prior felony conviction. Moreover, at defendant’s sentencing hearing, the prosecutor and the trial court explicitly recognized defendant as an habitual offender. In discussing the guidelines, defense counsel likewise acknowledged that defendant was an habitual offender. Defendant has never challenged the accuracy of the information concerning his prior conviction, and he had ample opportunity to do so at sentencing. Accordingly, the trial court properly relied on the uncontested information to sentence defendant as an habitual offender, and defendant is not entitled to resentencing. Affirmed. /s/ Peter D. O’Connell /s/ Richard Allen Griffin /s/ Joel P. Hoekstra 4 Following the evidentiary hearing, the trial court denied defendant’s motion for a new trial on this basis, relying on Zinn, supra. -9-

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