PEOPLE OF MI V AMEER JACOBS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 2002
Plaintiff-Appellee,
v
No. 232004
Wayne Circuit Court
LC No. 99-006419
AMEER JACOBS,
Defendant-Appellant.
AFTER REMAND
Before: Neff, P.J., and Griffin and Talbot, JJ.
PER CURIAM.
Defendant appealed as of right his bench-trial conviction of second-degree murder, MCL
750.317, for which he was sentenced to fifteen to twenty-five years’ imprisonment. We
determined that further findings of fact were necessary to facilitate full review, and we remanded
for that purpose. People v Ameer Jacobs, unpublished opinion per curiam of the Court of
Appeals, issued June 28, 2002 (Docket No. 232004) Having retained jurisdiction, the case is
now before us to review the record as supplemented. We affirm.
Defendant was charged with first-degree murder for the death of his infant son, Jameel
Jacobs. At the conclusion of the proofs, the trial court made the following findings of fact:
On June 8th, 1999, Jameel Jacobs was an infant of approximately one
month old, having been born May 12th, 1999. The defendant, Ameer Jacobs was
the father of Jameel Jacobs and the custodial parent, along with Soo Kim, the
mother of the infant.
On June 8th, 1999, Jameel Jacobs was in good health. During the early
morning hours of June 8th, 1999 Ameer Jacobs removed Jameel from the crib and
took the infant into the living room of the apartment number 304 located at 741
Seward Street in the City of Detroit, County of Wayne, State of Michigan.
While in the living room at the Seward location, the defendant knowingly
or intentionally inflicted multiple blunt force trauma to the head of Jameel Jacobs.
After the infant stopped breathing, a call was placed by the defendant to EMS.
An EMS team arrived at the apartment and attempted to recessitate [sic] the
infant. Following the attempts the infant was conveyed immediately to Henry
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Ford Hospital in Detroit by the EMS personal [sic] in the mobile unit. On June
11th, 1999, Jameel Jacobs died from the blunt force trauma.
Jameel Jacobs brain has [sic] swollen and he had retinal hemorrhage. The
manner of death was homicide. The cause of Jameel Jacobs death was blunt force
trauma.
The court did hear testimony about two prior allege [sic] falls of Jameel on
the stairs and in the kitchen of the apartment. However the court does not find
that testimony credible and also find [sic] even if it were credible, those falls did
not contribute to the death of Jameel Jacobs.
The defendant on June 9th, 1999 made a statement to the Detroit Police
and admitted that he intentionally struck Jameel in the head on June 8th, 1999.
When the defendant struck Jameel Jacobs he acted in a wanton and willful
disregard for the likelihood that the natural tendency of his conduct was to cause
death or great bodily harm.
As a conclusion of law in view of the forgoing finding of fact, the
defendant is guilty of the lesser included offense of second degree murder and
violation of MCLA 750.317. And that conclusion is in accordance with the
People versus Woods, 416 Mich 581 at page 627, a 1982 decision of the Michigan
Supreme Court. [Emphasis added.]
Defendant argued that the trial court erred in finding that he admitted to striking Jameel
on June 8, 1999, and in concluding that his striking of the child was the direct cause of his death.
We agreed with defendant that the trial court clearly erred in finding that defendant admitted to
striking Jameel on June 8, 1999, because the record indicates that defendant admitted to police
that he struck him on June 4, 1999. In our prior opinion, we stated that it was unclear from the
record whether the court’s conclusion was based on its erroneous finding that defendant admitted
to striking Jameel on June 8, or whether it was based on other evidence. Accordingly, we
remanded for further findings of fact. On remand, the trial court made the following additional
findings of fact:
In the Defendant’s June 9, 1999, statement given the Detroit Police, the
Defendant Jacobs admitted striking his infant son on June 4, 1999, and not June 8,
1999. The Court does not find that this striking was one of the fatal blows which
caused the death of Jameel Jacobs on June 8, 1999.
However, the admission about the June 4th, 1999, striking, along with the
admissions made by the Defendant concerning two alleged accidental falls of
June 6th, 1999, caused this Court to find that the Defendant was attempting to
cover up the real cause of Jameel Jacobs’ death.
Medical testimony from the pediatric expert and Medical Examiner both
indicate that Jameel Jacobs was injured on June 8, 1999, the date that the infant
lost consciousness. The injuries to Jameel Jacobs were so serious that he could
not have remained conscious for long after infliction of those injuries.
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On June 8, 1999, prior to receiving those injuries, Jameel Jacobs was in
good health.
During the early morning hours of June 8, 1999, the Defendant, Ameer
Jacobs, removed Jameel from the crib and took the infant into the living room of
the apartment number 304, located at 741 Seward Street in the City of Detroit,
Wayne County, Michigan. And while in the living room, alone at that location
with the infant, the Defendant knowingly or intentionally inflicted multiple blunt
force trauma to the head of Jameel Jacobs. After the infant stopped breathing, a
call was placed by the Defendant to E.M.S.
An E.M.S. team arrived at the apartment and attempted to resuscitate the
infant. Following the resuscitation, the infant was conveyed immediately to
Henry Ford in Detroit by E.M.S. personnel in a mobile unit.
On June 11, 1999, Jameel Jacobs died from blunt force trauma injuries, his
brain was swollen and he had retinal hemorrhage. The manner of death was
homicide, and the cause of Jameel Jacobs’ death was blunt force trauma
administered by the Defendant.
Although the court did hear testimony about the two prior alleged falls of
Jameel on the stairs and in the kitchen of the apartment, the Court does not find
that testimony credible and also finds that even if it were credible those falls did
not contribute [to] the death of Jameel Jacobs based on the medical testimony
given by the Medical Examiner and the pediatric expert.
When the Defendant struck Jameel Jacobs on June 8th, 1999, he acted in a
manner which demonstrated a wanton and willful disregard for the likelihood that
the natural tendency of his conduct was to cause death or great bodily harm.
And my conclusion remains the same, that based on those foregoing
findings of fact, the Defendant is guilty of the lesser included offense of second
degree murder in violation of M.C.L. 750.317. . . .
A trial court’s findings of fact in a bench trial are reviewed for clear error and its
conclusions of law are reviewed de novo. People v Swirles (After Remand), 218 Mich App 133,
136; 553 NW2d 357 (1996); People v Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995).
A finding is clearly erroneous when, although there is evidence to support it, the reviewing court
on the entire record is left with the definite and firm conviction that a mistake was made. Swirles
(After Remand), supra. This Court must give due regard to the trial court’s special opportunity
to judge the credibility of the witnesses who appeared before it. MCR 2.613(C). Further, when
there is conflicting testimony, it is for the trial court to resolve the facts. People v Shields, 200
Mich App 554, 558; 504 NW2d 711 (1993). The trial court’s resolutions are given deference by
an appellate court. Id.
We conclude that the trial court’s findings were not clearly erroneous. Defendant and
Kim stated that Jameel’s falls occurred when he was approximately one or two weeks old, which
was days before his admittance to Henry Ford Hospital on June 8, 1999. Defendant’s version of
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events was contradicted by the medical examiner’s finding that Jameel’s five areas of injury to
the head were sustained at the same time, either on the date he was admitted to the hospital, or
shortly before his admittance to Henry Ford Hospital on June 8, 1999. Further, the finding that
the falls did not cause Jameel’s injuries was supported by the pediatric expert’s conclusion that
the sheering or retinal hemorrhaging injuries could not have been sustained by a fall down stairs,
even if defendant had held Jameel over his head as he walked up the stairs. We find no error in
the trial court’s finding that a fall did not cause Jameel’s injuries. Accordingly, in light of the
medical evidence, as well as defendant’s admission to striking the child on another occasion, we
find no error in the trial court’s conclusion that defendant fatally abused Jameel in the early
morning hours of June 8, 1999. The record supports the trial court’s findings, and based on our
review of the entire record, we are not left with a definite and firm conviction that a mistake has
been made. Swirles (After Remand), supra at 136.
Defendant also argues that his trial counsel was ineffective for failing to raise an
intervening cause of death defense. Defendant argues that the EMS unit that treated Jameel
wrongly intubated him by inserting the tube into his esophagus instead of his trachea. Defendant
failed to move for a new trial or Ginther1 hearing; therefore, our review is limited to errors
apparent on the record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). To
establish a denial of effective assistance of counsel, a defendant must prove that his counsel’s
performance was deficient and that, under an objective standard of reasonableness, defendant
was denied his Sixth Amendment right to counsel. People v Carbin, 463 Mich 590, 599-600;
623 NW2d 884 (2001). The deficiency must be prejudicial to defendant to the extent that, but
for counsel’s error, the result of the proceedings would have been different. Id. Effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.
People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001).
The decisions regarding what evidence to present and which witnesses to call are
presumed to be matters of trial strategy. Garza, supra at 255. This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy, nor will it assess trial counsel’s
competence with the benefit of hindsight. Id.; People v Williams, 240 Mich App 316, 332; 614
NW2d 647 (2000). The failure to call witnesses or present certain evidence can constitute
ineffective assistance of counsel only when it deprives the defendant of a substantial defense.
People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). A substantial defense is one that
might have made a difference in the outcome of the trial. Id.. See People v LaVearn, 448 Mich
207, 212; 528 NW2d 721 (1995).
In light of the record evidence that (1) Jameel’s health improved after he was intubated at
the scene, and (2) Jameel’s official cause of death was homicide as a result of intentional blunt
force trauma, we cannot conclude that the record supports an intervening cause of death defense
on the basis of the EMS personnel’s treatment of Jameel. Defendant has not affirmatively
established that Jameel was improperly intubated at the scene, or more importantly, that he was
detrimentally affected by the EMS unit’s treatment. Therefore, defendant’s argument amounts to
mere conjecture. Further, we cannot conclude that defendant would have been acquitted even if
defendant had established that Jameel was improperly intubated in light of (1) the evidence that
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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his vitals had stopped before the EMS team arrived at the scene, (2) the evidence that he had
been without oxygen for some time before the EMS unit arrived, (3) evidence that his condition
and color improved after he was intubated at the scene, (4) the ability of the medical staff at
Henry Ford Hospital to resuscitate Jameel, and (5) his serious head injuries, which ultimately
were determined to be the cause of his death. In sum, the evidence did not support an
intervening cause of death defense based on the improper intubation of Jameel by the EMS unit.
Accordingly, defendant’s claim that trial counsel failed to adequately investigate, research, and
present this defense is without merit.
Affirmed.
/s/ Janet T. Neff
/s/ Richard Allen Griffin
/s/ Michael J. Talbot
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