PEOPLE OF MI V OLANDER DONTREYL CALBERT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 27, 2004
Plaintiff-Appellee,
V
No. 243875
Saginaw Circuit Court
LC No. 01-019528-FC
OLANDER DONTREYL CALBERT,
Defendant-Appellant.
Before: O’Connell, P.J., and Wilder and Murray, JJ.
PER CURIAM.
Defendant appeals as of right his jury conviction of first-degree felony murder, MCL
750.316(1)(b); armed robbery, MCL 750.529; carrying a concealed weapon, MCL 750.227(2);
and two counts of felony-firearm, MCL 750.227b(1). He was sentenced to concurrent sentences
of 2 years each for the felony-firearm counts, consecutive to concurrent sentences of life
imprisonment for felony murder, 10 to 20 years for armed robbery, and 2 to 5 years for carrying
a concealed weapon. We affirm.
Defendant first claims on appeal that because defense counsel failed to impeach a
prosecution witness with his prior conviction for making a false police report, he was denied his
constitutional right to effective assistance of counsel. Defendant argues that the impeachment of
the witness would have negatively reflected on the witness’ credibility and substantially
benefited defendant’s case. We disagree. Because no evidentiary hearing was held in this case,
defendant’s claim is considered only to the extent that counsel’s claimed mistakes are apparent
on the record. People v Johnson, 144 Mich App 125, 129-130; 373 NW2d 263 (1985).
In reviewing claims of ineffective assistance of counsel, Michigan courts use the standard
set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
People v Pickens, 446 Mich 298, 302-303, 318; 521 NW2d 797 (1994). Under the Strickland
test, a defendant must show: (1) that counsel’s performance was deficient to the extent that it fell
below an objective standard of reasonableness under prevailing professional norms; and (2) that
counsel’s deficient performance so prejudiced the defendant that it deprived him of a fair trial;
that is, there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. at 303; People v Riley, 468 Mich 135, 140; 659
NW2d 611 (2003); Strickland, supra at 694.
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In proving the Strickland elements, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy. Riley, supra. Defendant argues that
there was no conceivable strategic reason for defense counsel not to impeach one of the
prosecution’s witnesses with his prior conviction. See MRE 609(a)(1). However, “[d]ecisions
concerning which witnesses to call, what evidence to present, or the questioning of witnesses are
considered part of trial strategy.” People v Bass (On Rehearing), 223 Mich App 241, 252; 565
NW2d 897 (1997), vacated in part on other grounds 457 Mich 866 (1998). Further, defense
counsel’s strategy will not be second-guessed. People v Carr, 141 Mich App 442, 452; 367
NW2d 407 (1985). Thus, “[i]n order to overcome the presumption of sound trial strategy, the
defendant must show that his counsel’s failure to prepare for trial resulted in counsel’s ignorance
of, and hence failure to present, valuable evidence that would have substantially benefited the
defendant.” Bass, supra at 253, citing People v Caballero, 184 Mich App 636, 640, 642; 459
NW2d 80 (1990).
The record fails to show either that Roby was actually convicted of making a false report
or that defense counsel knew about the alleged conviction; thus, defendant’s claim that he was
denied effective assistance of counsel because his attorney failed to investigate Roby’s criminal
history or impeach him with his prior conviction is not supported by the evidence. See People v
Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
Furthermore, defense counsel made a strategic decision to argue to the jury that Roby’s
credibility was destroyed by his admission he lied under oath in his affidavit. We do not secondguess trial counsel concerning matters of trial strategy. Pickens, supra at 330.
Defendant next argues on appeal that the trial judge plainly erred by not properly
instructing the jury on the intent element of felony murder or that, in the alternative, defense
counsel was ineffective for failing to request the instruction. We disagree.
Objections to jury instructions must be timely; before the jury retires to consider the
verdict, the objecting party must object on the record by specifically stating the matter being
objected to and the ground for the objection. Tringali v Lal, 164 Mich App 299, 306; 416 NW2d
117 (1987); MCR 2.516(C). Defendant did not properly object below; thus, our review is limited
to plain error affecting defendant’s substantial rights. People v Knapp, 244 Mich App 361, 375;
624 NW2d 227 (2001). To avoid forfeiture under the plain error rule, the defendant bears the
burden to show that: 1) an error occurred, 2) the error was plain, i.e. clear or obvious, 3) and the
plain error prejudiced substantial rights, i.e. that the error affected the outcome of the lower court
proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
We generally review jury instructions in their entirety, i.e. read as a whole rather than
extracted piecemeal, to determine whether the trial court committed error requiring reversal.
People v Davis, 199 Mich App 502, 515; 503 NW2d 457 (1993); People v Dabish, 181 Mich
App 469, 478; 450 NW2d 44 (1989). Jury instructions must include all the elements of the
charged offense and must not exclude material issues, defenses, and theories if the evidence
supports them. People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975); People v Harris,
190 Mich App 652, 664; 476 NW2d 767 (1991). Even if somewhat imperfect, instructions do
not create error if they fairly presented the issues for trial and sufficiently protected the
defendant's rights. People v Wolford, 189 Mich App 478, 481; 473 NW2d 767 (1991). Error
does not result from the omission of an instruction if the charge as a whole covers the substance
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of the omitted instruction. Harris, supra at 664. A trial court need not give requested
instructions that the facts do not warrant. People v Dalton, 155 Mich App 591, 599; 400 NW2d
689 (1986).
Defendant argues that when read together with the instructions for armed robbery, the
felony murder instructions could have permitted the jury to improperly find defendant guilty of
felony murder even if it determined that he did not form the intent to steal until after the murder.
See People v Brannon, 194 Mich App 121, 125; 486 NW2d 83 (1992).
We disagree. The trial court’s instructions were essentially verbatim to the Michigan
Criminal Jury Instructions, and although those standard instructions are not officially sanctioned
by our Supreme Court, People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985), they are
useful in determining the sufficiency of the instructions given. We find that the instructions as
given were sufficient to convey to the jury that defendant must have held the intent to steal at
time of the murder in order to be convicted of felony murder. See People v Goss, 446 Mich 587,
638 n 22; 521 NW2d 312 (1994) (Riley, J., dissenting).
Defendant argues in the alternative that even if this Court finds that the trial court did not
plainly err in instructing the jury on the intent element of felony murder, defense counsel was
ineffective for not requesting a clarified instruction. We reject this argument because it was clear
that defense counsel’s strategy was to seek an acquittal by reason of self-defense. A request for a
clarification of the intent element of the felony-murder instruction would have been inconsistent
with that strategy by suggesting that a conviction for second-degree murder was an acceptable
alternative. Importantly, defendant does not argue that defense counsel was ineffective for
failing to argue second-degree murder. Instead, defendant claims that defense counsel was
ineffective only for failing to seek an instruction that would have advocated that position.
As stated by our Supreme Court:
Every criminal defense attorney must make strategic and tactical decisions
that affect the defense undertaken at trial. Most criminal defense attorneys have a
variety of options from which to choose that affect, if not determine, how the jury
understands and comprehends the case. . . . The role of defense counsel is to
choose the best defense for the defendant under the circumstances. . . . Defense
counsel must be afforded “broad discretion” in the handling of cases, which often
results in “taking the calculated risks which still do sometimes, at least, pluck
legal victory out of legal defeat.” [Pickens, supra at 324-325, quoting People v
Lundberg, 364 Mich 596, 600, 601; 111 NW2d 809 (1961).]
We adopt this well-known principle and decline defendant’s invitation to second-guess counsel’s
strategic decisions. See People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291
(2001); People v Rockey, 237 Mich App 74, 76, 77; 601 NW2d 887 (1999).
There was no plain error in the trial court’s jury instructions, and defense counsel was not
ineffective for failing to seek clarification on an instruction that would be inconsistent with the
defense strategy.
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Affirmed.
/s/ Peter D. O’Connell
/s/ Kurtis T. Wilder
/s/ Christopher M. Murray
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