PEOPLE OF MI V GABRIEL EBERHARDT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 13, 2002
Plaintiff-Appellee,
v
No. 229702
Wayne Circuit Court
LC No. 00-002396
GABRIEL EBERHARDT,
Defendant-Appellant.
Before: Griffin, P.J., and White and Murray, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of assault with intent to commit
murder, MCL 750.83, and possession of a firearm during the commission of a felony, MCL
750.227b. Defendant was sentenced to fifteen to twenty-five years for the assault conviction and
a consecutive term of two years for the felony-firearm conviction. We affirm.
Defendant first1 asserts that there was insufficient evidence to support a finding that he
assaulted the victim with the intent to kill. We disagree. When reviewing a challenge to the
sufficiency of the evidence, this Court views the evidence in a light most favorable to the
prosecution. People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993). “The question
is whether the evidence presented at trial, together with all reasonable inferences therefrom, was
sufficient to allow a rational trier of fact to find each element of the crime proven beyond a
reasonable doubt.” Id.
The elements of assault with intent to commit murder are “‘(1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder.’” People v
Abraham, 234 Mich App 640, 657; 599 NW2d 736 (1999) (citation and footnote omitted).
“Circumstantial evidence and the reasonable inferences that arise from the evidence can
constitute satisfactory proof of the elements of [assault with intent to commit murder].” People v
McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
To the extent that defendant argues that the prosecution failed to prove beyond a
reasonable doubt that he was the one who shot the victim, we observe that there was evidence
1
The two other issues raised by counsel were dismissed by stipulation. The remaining issues
were raised by defendant in a supplemental brief filed in propria persona.
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that defendant and the victim exchanged words just prior to the shooting. There was testimony
that defendant had a gun in his hand just moments after the victim was shot. There was also
testimony that, as the victim lay on the ground bleeding, defendant taunted him. Thus, there was
sufficient evidence to support the conclusion that defendant was the shooter.
There was also sufficient evidence to support the conclusion that defendant shot the
victim with the intent to kill him. “The intent to kill may be proved by inference from any fact in
evidence.” McRunels, supra, at 181. “Because of the difficulty of proving an actor’s state of
mind, minimal circumstantial evidence is sufficient.” Id. While doing an act, the natural
tendency of which is to produce death, alone, is insufficient to establish a defendant’s intent to
kill, People v Taylor, 422 Mich 554, 567; 375 NW2d 1 (1985), the fact that defendant shot the
victim in the chest supports an inference that defendant intended to kill the victim.
Defendant argues that the evidence shows that he was merely trying to scare the victim,
who was threatening him. However, there was evidence that defendant shot the victim in the
chest, before the victim had even gotten out of his car, and that afterwards defendant said “Yeah,
yeah, I told you I wasn’t no hoe.” (The victim testified that he had called defendant a “hoe” a
few months before the shooting.) This evidence was sufficient to support a finding that
defendant acted with an intent to kill, rather than an intent to scare, or to do great bodily harm
less than murder.
Defendant next asserts that he was denied the effective assistance of counsel, pointing to
four examples of alleged errors committed by defense counsel. There has been no Ginther2
hearing, thus this Court’s review of this issue is limited to mistakes apparent on the record.
People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was objectively unreasonable and that counsel’s defective performance prejudiced the defendant.
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Prejudice sufficient to warrant
reversal of a defendant’s conviction has been defined as prejudice that “affect[s] the outcome of
the trial.” People v Pickens, 446 Mich 298, 332; 521 NW2d 797 (1994). Defendant has failed to
show that counsel neglected viable defense strategies, or that there is a reasonable probability
that had counsel done what defendant asserts he should have done, the outcome would have been
different.
Defendant’s final argument is that he was denied the effective assistance of counsel by
counsel’s decisions to choose a bench trial over a jury trial and to have defendant decline to
testify. Since defendant voluntarily waived his rights to a jury trial and to testify on his own
behalf, and because defendant cannot show that these decisions were the result of bad advice
from his attorney, defendant was not denied the effective assistance of counsel.
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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A defendant who waives his rights under a rule may not then seek a reversal of his
conviction based on a claimed deprivation of those rights because his waiver has extinguished
any error. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). In order for a
defendant’s waiver of the right to a jury trial to be valid, the trial court must comply with MCR
6.402. “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.” MCR 6.402(B).
In the present case, the trial court specifically asked defendant whether he “freely and
voluntarily” waived his right to a jury trial. The trial court, however, did not explicitly state on
the record that the right to a jury trial is a constitutional right. However, this Court concludes
that the requirements of MCR 6.402(B) were still met. Immediately before the trial court
questioned defendant regarding whether he was voluntarily waiving his right to a jury trial,
defense counsel stated: “I’ve advised my client of his constitutional right to proceed to trial by a
jury.” In addition, the trial court referenced, on the record, a jury trial waiver form that
defendant had signed. This waiver form states that defendant understands that he has “a
constitutional right to a trial by jury.” This form also states that defense counsel advised
defendant that he has a “constitutional right to a trial by jury.” Given that the waiver form twice
states that the right to a jury trial is a constitutional right, that the trial court specifically referred
to this form on the record, and that defense counsel stated on the record that he told defendant
that the right to a jury trial is a constitutional right, the requirements of MCR 6.402(B) were
satisfied.
Because defendant waived his right to a jury trial, he cannot claim an error based on a
deprivation of that right. Carter, supra, at 215. In addition, defendant has not shown that his
decision to waive his right to a jury trial was the result of ineffective assistance of counsel.
There is nothing on the record to shed light on the advice counsel gave defendant on the issue,
and therefore, there is nothing to indicate that defense counsel’s performance in this respect was
inadequate.
Similarly, defendant has failed to show how his decision not to testify was the result of
ineffective assistance of counsel. Defendant knowingly and voluntarily waived his right to
testify. The trial court asked defendant whether the decision not to testify was his and defendant
said “yes.” Again, there is nothing on the record to indicate how this decision was the result of
ineffective assistance of counsel. Thus, defendant would have to show that defense counsel’s
failure to present defendant as a witness deprived him of the opportunity to present a substantial
defense. As indicated above, the facts of this case would not lend themselves to the theories of
self-defense and imperfect self-defense. The victim was unarmed and shot as he was getting out
of his car. Defendant was not facing imminent harm when he shot the victim.
Lastly, defendant’s argument that he was denied a fair trial based on the cumulative
effect of numerous minor errors also fails because only actual errors are aggregated to determine
their cumulative effect, People v Rice (On Remand), 235 Mich App 429, 448; 597 NW2d 843
(1999), and we have concluded no actual errors occurred.
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Affirmed.
/s/ Richard Allen Griffin
/s/ Helene N. White
/s/ Christopher M. Murray
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