PEOPLE OF MI V BRANDON L MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 31, 2004
Plaintiff-Appellee,
v
No. 242185
Wayne Circuit Court
LC No. 01-007915-01
BRANDON L. MOORE,
Defendant-Appellant.
Before: Neff, P.J., and Smolenski and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316, and possession of a firearm during the commission of a felony, MCL 750.227b.
Defendant was sentenced to life imprisonment for the first-degree murder conviction and two
years’ imprisonment for the felony-firearm conviction. We affirm.
I
This case stems from the June 26, 2001, shooting death of Darrell Scott outside a Detroit
home that Scott shared with defendant’s brother. Defendant had recently been forced to move
out of the home by his brother, but had returned in an attempt to again stay there. According to
defendant’s statement to police, he had an altercation with Scott at the home and left. Defendant
later returned with a gun to retrieve his portable radio from the porch of the home. Scott
approached defendant on the sidewalk as defendant neared the home and began harassing
defendant. Defendant also claimed that he shot Scott because that was the only way he could get
Scott off him. Defendant later claimed that the statement to police was incorrect and was
coerced.
II
Defendant first asserts that trial counsel was ineffective for failing to file a motion to
suppress his custodial statement. On appeal, defendant asserted that he informed his trial counsel
that his statement was coerced, that the sentence stating that he retrieved a gun from a friend’s
home at 48 Louise Street and shot Scott in the side was incorrect, and that he only signed the
statement out of fear because the officer slapped him in the face.
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This Court granted defendant’s motion to remand for a Ginther1 hearing. The trial court
conducted a four-day hearing. The trial court denied defendant’s motion for a new trial on the
basis of ineffective assistance of counsel. The court found defendant was not a credible witness
and that his version of the events was not supported by the evidence. Further, defense counsel’s
failure to seek suppression of defendant’s statement was a matter of trial strategy because the
statement supported defendant’s claim of self-defense. In addition, because defendant’s
statement provided evidentiary support for the argument that defendant was provoked by the
victim, the trial court instructed the jury on the lesser offense of manslaughter. Accordingly, the
court concluded that defendant failed to establish that trial counsel’s performance was deficient
or that defendant was prejudiced by trial counsel’s performance.
A
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “A
judge must first find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” Id. This Court reviews a
trial court’s findings of fact for clear error. Id. We review de novo questions of constitutional
law. Id.
To establish a denial of effective assistance of counsel, a defendant must show that his
counsel’s performance was deficient, under an objective standard of reasonableness, and that the
deficient performance prejudiced defendant so as to deprive him of a fair trial. People v Carbin,
463 Mich 590, 599-600; 623 NW2d 884 (2001); People v Garza, 246 Mich App 251, 255; 631
NW2d 764 (2001). To demonstrate prejudice, a defendant must establish a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different.
Carbin, supra at 600. Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. Garza, supra at 255. “This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s
competence with the benefit of hindsight.” Id.
B
We first note that although defendant claims on appeal that he was dissatisfied with
counsel’s performance during the trial because his counsel refused to file a motion to suppress
defendant’s statement, this assertion is not supported by the record. Defendant did express
dissatisfaction with trial counsel at the pretrial hearing because counsel did not file a motion to
suppress the statement. However, by the next hearing, defendant stated on the record that he had
an opportunity to speak with counsel and had resolved any issue concerning the motion.
Regardless, we conclude that defendant was not denied the effective assistance of counsel.
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Trial counsel’s testimony at the Ginther hearing established that his main strategy was to
obtain an acquittal or, alternatively, to convince the jury that defendant was not guilty of firstdegree murder, but merely manslaughter, on a theory of self-defense. As the trial court noted in
its opinion, trial counsel maintained that defendant did not indicate that his statement was
coerced. Counsel testified that defendant did not claim that the statement was incorrect, but only
that the statement was obtained through trickery, which was not a basis for suppression. In
counsel’s view, defendant’s custodial statement was essential to his defense because it showed
that the shooting was not premeditated and it established his theory of imperfect self-defense by
showing that the victim was a bully who was much larger than defendant and threatened him,
and thus defendant fired the gun in self-defense.
We concur with the trial court’s conclusion that defense counsel’s decision not to seek
suppression of the statement was a matter of trial strategy. This Court will not attempt to
second-guess decisions concerning trial strategy. People v Stewart (On Remand), 219 Mich App
38, 42; 555 NW2d 715 (1996). The fact that counsel’s strategy was unsuccessful does not
constitute ineffective assistance. Id.
III
Next, defendant invites this Court to adopt a requirement that custodial statements must
be electronically recorded to be admissible as evidence. However, as defendant notes, this Court
has rejected this argument. People v Geno, 261 Mich App 624, 626-628; 683 NW2d 687 (2004).
We are bound to follow this Court’s precedent, and we decline defendant’s invitation to again
consider a legal requirement for recording custodial interrogations. MCR 7.215(J)(1).
IV
In defendant’s next claim of error, he asserts that the trial court erred by refusing to give a
self-defense instruction concerning “perfect” or “imperfect” self-defense. We disagree. This
Court generally reviews de novo claims of instructional error. People v Lowery, 258 Mich App
167, 173; 673 NW2d 107 (2003). “Jury instructions are to be read as a whole rather than
extracted piecemeal to establish error.” People v Kurr, 253 Mich App 317, 327; 654 NW2d 651
(2002). “Even if somewhat imperfect, instructions do not warrant reversal if they fairly
presented the issues to be tried and sufficiently protected the defendant’s rights.” Id.
“A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). Jury instructions must
include the charged offense elements and must not exclude material issues, defenses, and
theories if supported by the evidence. Kurr, supra at 327; People v Canales, 243 Mich App 571,
574; 624 NW2d 439 (2000).
The first requirement of a claim of self-defense or defense of others is that a defendant
act in response to an assault. Detroit v Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999).
A “perfect” self defense instruction is warranted if there is evidence that the killing of another
person was justifiable homicide, i.e., if the defendant honestly and reasonably believes his life is
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in imminent danger or that there is a threat of serious bodily harm and that it was necessary to
exercise deadly force to prevent such harm. Riddle, supra at 119, 127; People v Kemp, 202 Mich
App 318, 322-323; 508 NW2d 184 (1993). To satisfy the necessity element of self-defense, the
actor must normally try to avoid the use of deadly force if he can safely and reasonably do so, for
example, by applying nondeadly force or by utilizing an obvious and safe avenue of retreat.
Riddle, supra at 119.
“Imperfect” self-defense is a qualified defense that can mitigate murder to voluntary
manslaughter. People v Kemp, 202 Mich App 318, 323; 508 NW2d 184 (1993). Where the
defense is applicable, it serves as a method of negating the malice element of a murder charge.
Id. The doctrine is usually invoked when the defendant would have had a claim of self-defense
had he not been the initial aggressor. Id.
After a review of the record, we conclude that the evidence did not support a self-defense
instruction. Defendant’s statement, if believed, arguably is evidence that defendant acted in
response to an assault by the victim, who was advancing on defendant. However, the evidence
did not support a finding that defendant honestly and reasonably believed his life was in
imminent danger or that there was a threat of serious bodily harm and that it was necessary to
exercise deadly force to prevent such harm. Defendant stated:
Then he swung on me. He hit me with his fist in the face and chest. I tried to
keep walking and ignore him, but he came after me again and tried to grab me. I
pulled out the gun and shot him once in the side. (Emphasis added.)
The victim’s attempt to “grab” defendant does not support a conclusion that defendant honestly
and reasonably believed that deadly force was necessary to prevent harm to himself. More
importantly, if defendant feared the victim, he had the option of not returning to the area or of
fleeing when he saw the victim approaching on the sidewalk. “[T]he touchstone of any claim of
self-defense, as a justification for homicide, is necessity.” Riddle, supra at 127 (emphasis in
original). Accordingly, the trial court did not err in denying the request for a self-defense
instruction. Canales, supra at 574.
V
In defendant’s last claim of error, he argues that he is entitled to a new trial because the
police violated his due process rights by failing to preserve a key trial exhibit during the
pendency of his direct appeal. Again, we disagree. This issue was not raised before the trial
court or in defendant’s original brief on appeal. Instead, defendant raises the issue following
remand for the Ginther hearing. Defendant claims that he was denied his right of due process on
remand because a photograph of him following his arrest, and admitted as evidence at trial, could
not be located for the Ginther hearing.
We find no plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 763, 774; 597 NW2d 130 (1999). Defendant asserts that the photograph would have
objectively disclosed whether he had a mark on his cheek before the police interview, and thus
was relevant to his claim that he was slapped by the police to coerce his statement. However, the
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record from the Ginther hearing indicates that defendant did not plan to introduce the photograph
as an exhibit. In any event, the trial court recollected the photograph as described, and there is
no indication that the missing photograph affected the outcome of the hearing. Carines, supra.
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Brian K. Zahra
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