PEOPLE OF MI V DEANDRE CORNELIUS GRAYSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 13, 2004
Plaintiff-Appellee,
V
No. 244909
Wayne Circuit Court
LC No. 02-000382
DEANDRE CORNELIUS GRAYSON,
Defendant-Appellant.
Before: Wilder, P.J., and Hoekstra and Kelly, JJ.
PER CURIAM.
Defendant appeals by right his convictions and sentences for first-degree home invasion,
MCL 750.110a(2), assault with intent to do great bodily harm, MCL 750.84, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b, following a jury
trial. We affirm.
I. Facts and Proceedings
Defendant’s convictions arise out of an incident that occurred at the home of Marvin
Lamb, Sr., (Lamb) on September 21, 2001, in Detroit. Lamb testified at trial that he was
romantically involved with defendant’s mother from the time defendant was approximately eight
years old until defendant was thirteen or fourteen years old and that he and defendant’s mother
had a child together. Beginning in August 2001, Lamb permitted defendant to keep three cars at
his house. After a time, however, Lamb told defendant that he needed to move the cars by a
specific date, but defendant did not comply with Lamb’s request. Lamb eventually relocated the
cars to a nearby market and informed defendant’s mother of the whereabouts of the cars. He
later saw defendant and his mother at the market discussing the status of the vehicles with a
police officer. Lamb testified that defendant became angry with him about moving the cars and
told Lamb that he was going to “get” him.
Lamb further testified that around noon on September 21, 2001, defendant, who did not
live with Lamb, came to the door of Lamb’s house and asked Lamb, through the screen door, if
he had seen Lamb’s son, Martin Lamb, Jr. (Lamb, Jr.). At the time, Lamb’s four young children,
his girlfriend, and his girlfriend’s son were in his home with him. Lamb went out on the front
porch to talk to defendant, and defendant informed him that Lamb, Jr., had stolen some “dope”
from defendant and his friends. Lamb said defendant looked like he had been smoking or
drinking and was not in his “right state of mind.” Defendant also asked Lamb what he was going
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to do about his cars that the police had impounded. Lamb testified that he smirked and
responded that he could try to get defendant another car. Defendant then pulled out a gun from
under his shirt, pointed it at Lamb from a distance of approximately three or four feet, and shot
him in the abdomen. Lamb stated that he fell off of the porch but managed to make his way to
the car in the driveway and call for his girlfriend to come outside. Lamb did not see where
defendant went after the shooting. Lamb testified that his bladder was damaged in the shooting
and that he was hospitalized for more than a month because of his injuries.
Julia McKnight, Lamb’s girlfriend, testified that she was sitting in the living room of
Lamb’s house when she saw defendant approach the front door on September 21, 2001. After
Lamb stepped out on the porch to talk to defendant, she heard their conversation grow louder.
She told her son and Lamb’s children to go to their bedrooms in the back of the home. As she
started walking to the back of the house, she saw defendant pointing a gun at Lamb. She did not
see anyone else on the porch. She then told the children to go upstairs and, as she followed them
up the stairs, she heard a gunshot and started running. Before reaching the top of the stairway,
she remembered that she did not close the door at the base of the stairwell. She testified that as
she started to go downstairs to close the door, she saw defendant coming up the stairs behind her,
holding a gun at his side. She stated that she had not given defendant permission to enter the
house. McKnight testified that defendant followed her up the stairs and into Lamb’s bedroom.
Defendant went to the corner of the bedroom, opened Lamb’s briefcase, took Lamb’s gun, and
ran downstairs. When McKnight eventually went downstairs, defendant was not in the house.
She found Lamb sitting in her car and subsequently drove him to the hospital.
Defendant testified that Lamb agreed to let him work on his cars in Lamb’s back yard and
that the cars disappeared from Lamb’s house approximately one month before September 21,
2001. After the cars disappeared, defendant talked to Lamb many times but did not discuss the
cars with him.
Defendant also testified that a friend of his, “D,”1 became acquainted with Lamb, Jr., and
Lamb, Jr., began selling drugs for D. On September 21, 2001, D called defendant and gave him
information about Lamb, Jr. Based on what D said, defendant went to Lamb’s house to warn
him that D had harmed Lamb, Jr., and was going to harm Lamb as well. While defendant and
Lamb were talking on the porch, defendant heard a voice he recognized as D’s say, “move.”
Defendant turned, saw a shadow, and heard the voice again. Defendant said he saw D
approaching from around the house, told Lamb twice to go inside, and stepped off the porch. He
then heard a gunshot and saw Lamb fall. Defendant testified that D then stood over Lamb with a
gun and said, “I should shoot him again.” Defendant handed D the gun that Lamb had dropped
and D ran off toward the back of the house. Defendant stated that he was not carrying a gun that
day.
Defendant further testified that after D ran away, he went inside the house and told
McKnight to call the police. He left when McKnight took Lamb to the hospital. Defendant said
that he went to his mother’s house after the shooting, told her what happened, and then went to
1
Defendant testified that D’s first name is Donald but that he does not know D’s last name.
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the hospital with her. Defendant turned himself in to police approximately two and a half
months later, after learning about a warrant for his arrest.
On the charge of assault with intent to commit murder, the jury convicted defendant of
assault with intent to do great bodily harm. Additionally, the jury convicted defendant of firstdegree home invasion and felony-firearm, as charged. The trial court subsequently sentenced
defendant to two to ten years’ imprisonment for assault with intent to do great bodily harm, fiftyone months to twenty years’ imprisonment for first-degree home invasion, and two years’
imprisonment for felony-firearm. Defendant now appeals.
II. Standards of Review
We review a claim that the evidence was insufficient to support a defendant’s conviction
to determine whether a rational trier of fact could find that the prosecution proved all of the
essential elements of the crime beyond a reasonable doubt, viewing the evidence in a light most
favorable to the prosecution. People v Bulmer, 256 Mich App 33, 36; 662 NW2d 117 (2003),
citing People v Wolfe, 440 Mich 408, 515; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992). “‘The standard of review is deferential: a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the jury verdict.’” People v
Gonzalez, 468 Mich 636, 640-641; 664 NW2d 159 (2003), quoting People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000). The elements of a crime may be sufficiently proved by
circumstantial evidence and reasonable inferences arising from the evidence. People v Tanner,
469 Mich 437, 444 n 6; 671 NW2d 728 (2003).
When the trial court has not conducted a hearing pursuant to People v Ginther, 390 Mich
436; 212 NW2d 227 (1973), our review of the defendant’s claim of ineffective assistance of
counsel is limited to mistakes apparent on the record. People v Wilson, 257 Mich App 337, 363;
668 NW2d 371 (2003).
III. Analysis
Defendant first asserts that the prosecution presented insufficient evidence to sustain his
conviction of first-degree home invasion because it failed to present sufficient evidence of a
breaking or entry without permission.2 We disagree.
MCL 750.110a(2) states:
A person who breaks and enters a dwelling with intent to commit a felony,
larceny, or assault in the dwelling, a person who enters a dwelling without
permission with intent to commit a felony, larceny, or assault in the dwelling, or a
2
Defendant also states that the prosecution presented “insufficient evidence on the ‘breaking’
and ‘entry without permission’ elements.” (Emphasis added.) The prosecution, however, did
not have to prove both of these factors. Home invasion in the first degree is committed by a
person who, under certain circumstances, “breaks and enters a dwelling” or “enters a dwelling
without permission.” MCL 750.110a(2).
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person who breaks and enters a dwelling or enters a dwelling without permission
and, at any time while he or she is entering, present in, or exiting the dwelling,
commits a felony, larceny, or assault is guilty of home invasion in the first degree
if at any time while the person is entering, present in, or exiting the dwelling
either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
Here, the evidence was sufficient for the jury to find that defendant entered Lamb’s home
without permission. Defendant contends that because he had a “stepfather/son” relationship with
Lamb and because McKnight testified that he was generally allowed in the home, the evidence
was insufficient to show that he entered the home without permission. We disagree. McKnight
testified that defendant visited Lamb’s house once or twice during the month before the incident
and, when asked if he was “generally allowed in the house,” she responded “yes.” However, she
also testified that, on the day of the shooting, she did not hear Lamb give defendant permission
to enter the house and she did not give him permission to enter, either.
Defendant’s reliance on People v Brownfield, 216 Mich App 429; 548 NW2d 248 (1996),
is misplaced. In that case, the defendant and his friends entered the home of one of the friends,
Nutt, intending to steal certain property. Id. at 430-431. This Court stated that because Nutt had
general permission to enter his own residence, the defendant had not committed breaking and
entering premised on an aiding and abetting theory. Id. at 432. In the present case, however,
defendant did not live with Lamb. Although he was “generally allowed” entry into the house
when he visited, the evidence permitted the jury to find that he did not have permission to enter
on the date in question.
Defendant next asserts that his trial counsel rendered ineffective assistance in several
ways. We disagree.
To sustain a claim of ineffective assistance of counsel,
“[f]irst, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
performing as the counsel guaranteed by the Sixth Amendment. In so doing, the
defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy. Second the defendant must show that the
deficient performance prejudiced the defense. To demonstrate prejudice, the
defendant must show the existence of a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim.” [Wilson, supra at 362, quoting
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (internal citations
and quotations omitted).]
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Defendant first asserts that he was denied effective assistance of counsel because his trial
counsel failed to impeach Lamb’s testimony with his Lamb’s conviction of receiving and
concealing stolen property, a crime which defendant claims would have been probative of
Lamb’s credibility and admissible under MRE 609. We disagree. Defendant fails to
demonstrate that his counsel’s performance was deficient. The document defendant presents on
appeal to verify Lamb’s conviction is not part of the lower court record.3 “This Court’s review is
limited to the record established by the trial court, and a party may not expand the record on
appeal.” Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002), citing
Reeves v Kmart Corp, 229 Mich App 466, 481 n 7; 582 NW2d 841 (1998); see also Wilson,
supra at 363. Additionally, the document, an offender profile from the Department of
Corrections website, at most shows that a man named Marvin Lamb was convicted of receiving
and concealing stolen property. The document does not establish authoritatively, however, that
the Marvin Lamb named in the document is the same Marvin Lamb who was the victim in this
case. This lack of authentication is problematic where the document appears to indicate that the
offender listed was incarcerated at the time the victim in the instant case was shot.
Moreover, even assuming the victim and the offender shown in the profile are the same
person, defendant has not demonstrated that the failure to impeach Lamb did not constitute
sound trial strategy. As stated in People v Nickson, 120 Mich App 681; 327 NW2d 333 (1982),
on which defendant relies, “the failure to attack the credibility of a witness could be sound trial
strategy where it is perceived that the jurors empathize with the witness.” Id. at 686 n 2. Here,
although defendant’s trial attorney impeached Lamb with the inconsistencies between his
testimony at the preliminary examination and at trial, he may have chosen not to impeach Lamb
with a prior conviction because he believed that the jury empathized with him. Additionally,
because McKnight’s testimony substantially corroborated Lamb’s testimony, defendant has not
demonstrated that but for counsel’s failure to impeach Lamb, there was a reasonable probability
that the outcome of the proceedings would have been different. Wilson, supra at 362. Therefore,
defendant’s first claim of ineffective assistance of counsel fails.
Defendant also contends that he was deprived of the effective assistance of counsel
because his trial attorney did not assert the defense of voluntary intoxication.4 We disagree.
Defendant fails to demonstrate that his trial counsel’s decision did not constitute sound trial
strategy, particularly in light of the fact that defendant’s position throughout trial was that he did
not commit the crimes alleged. Additionally, defense counsel may have decided that presenting
an alternate defense of voluntary intoxication would have damaged defendant’s credibility with
the jury. Accordingly, defendant fails to establish that his counsel’s performance was deficient.
Defendant also fails to present any argument beyond mere conclusory statements concerning the
3
Defendant previously moved to remand this case to the trial court pursuant to MCR 7.211(C)(1)
for an evidentiary hearing. This Court denied defendant’s motion in an order dated September
12, 2003.
4
Effective September 1, 2002, voluntary intoxication does not constitute a defense to any crime,
except in limited circumstances. MCL 768.37. The instant offense predated the effective date of
this statute.
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prejudice prong of the ineffective assistance inquiry. He has, therefore, abandoned further
review of this issue. People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001).
Next, defendant contends that his trial counsel rendered ineffective assistance because he
failed to argue that defendant had permission to enter the house. We disagree. Defendant fails
to show that his trial counsel’s decision was not a matter of sound trial strategy. Because
defendant asserted at trial that he entered the home only to tell McKnight to call the police,
argument by defense counsel that the prosecution did not prove first-degree home invasion
merely because defendant had permission to enter the home could have diminished defendant’s
credibility. Defendant also fails to sufficiently brief the prejudice prong of the ineffective
assistance inquiry and has, therefore, abandoned this issue. Kevorkian, supra.
Defendant next asserts that his trial counsel rendered ineffective assistance by failing to
request jury instructions on lesser-included offenses of first-degree home invasion. Defendant
has failed to demonstrate that his counsel performed deficiently. Instructions on necessarily
included lesser offenses are proper “if the charged greater offense requires the jury to find a
disputed factual element that is not part of the lesser included offense and it is supported by a
rational view of the evidence.” People v Reese, 466 Mich 440, 446-447; 647 NW2d 498 (2002),
citing People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). Defendant fails to articulate any
offenses for which defense counsel should have requested instructions and presents no argument
concerning whether a rational view of the evidence would have supported giving the instructions.
It is not enough for an appellant in his brief simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the
basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position. . . . . Failure to brief a
question on appeal is tantamount to abandoning it. [Kevorkian, supra at 389
(internal quotations omitted).]
Moreover, we disagree with defendant’s assertion that, because the trial court instructed
the jury on the offense of assault with intent to do great bodily harm less than murder as a lesserincluded offense of assault with intent to murder, we must conclude that his trial attorney did not
strategically decide to refrain from requesting instructions on lesser-included offenses of firstdegree home invasion. The record does not establish whether the lesser assault instruction was
given at the request of defense counsel or the prosecution, or if the instruction was instead given
sua sponte by the trial court. Thus, defendant’s assertion on this issue amounts to nothing more
than speculation. Furthermore, defendant fails to present more than a conclusory assertion that
he was prejudiced because of his trial counsel’s conduct and has, therefore, abandoned this issue
in any event. Kevorkian, supra at 389.
Finally, defendant argues that his attorney rendered ineffective assistance by failing to
request an adjournment of the sentencing proceedings in order to confirm that Lamb wanted the
trial court to depart downward from the recommended minimum sentence range. We disagree.
At sentencing, the attorney substituting for defendant’s trial counsel stated that that it was
“[defendant’s] understanding that the victim in this case wishes a downward departure for
[defendant].” In his statement to the trial court at sentencing, defendant requested that the trial
court “postpone the court date until you [the trial court] talk to the complainant person.” The
trial court did not grant defendant’s request.
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Defendant has not demonstrated that his attorney was ineffective because he fails to
establish that had his counsel requested an adjournment, the request would have been granted.
The fact that the trial court did not grant defendant’s request for an adjournment shows that a
request by his attorney likely would have been futile. A defendant’s attorney does not render
ineffective assistance by failing to make a futile or meritless motion. People v Riley, 468 Mich
135, 142; 659 NW2d 611 (2003) (citations omitted). Moreover, defendant fails to establish a
reasonable probability that if the proceedings had been adjourned, the trial court would have
learned that Lamb requested a downward departure and would have departed according to
Lamb’s request. Defendant, therefore, has not established that he was denied the effective
assistance of counsel at sentencing.
In light of our conclusion that defendant has failed to demonstrate that prejudice resulted
from any of the asserted instances of ineffective assistance of counsel, we also deny defendant’s
request that we remand this case to the trial court for a hearing pursuant to Ginther, supra.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Kirsten Frank Kelly
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