PEOPLE OF MI V EDMOND ZOICA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 20, 2008
Plaintiff-Appellee,
v
No. 270881
Oakland Circuit Court
LC No. 2005-204361-FC
EDMOND ZOICA,
Defendant-Appellant.
Before: Talbot, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his jury conviction of conspiracy to commit first-degree
premeditated murder, MCL 750.316(1)(a), 750.157a. We affirm, but remand for the ministerial
task of correcting the judgment of sentence.
The incident giving rise to defendant’s convictions is apparently the culmination of a
rivalry between two groups of Albanian men that resulted in codefendant Ketjol Manoku
opening fire at a minivan holding five members of the rival group after the minivan drove into a
parking lot in the late night hours of July 17, 2004, where defendant and his codefendants were
standing. Four of the minivan passengers were stuck by bullets, one fatally, as the minivan was
attempting to leave the parking lot. Over the preceding couple of days, defendant, his
codefendants, and others had met together on several occasions to watch and follow members of
this same group of men, as well as to discuss and plan violent action against them.
On appeal, defendant first argues that his motion for directed verdict should have been
granted because the evidence was insufficient to establish that he had the requisite intent to
murder. We disagree.
In ruling on a motion for directed verdict, the trial court must consider the evidence
presented by the prosecutor up to the time the motion was made, in a light most favorable to the
prosecutor, to determine whether a rational trier of fact could have found the essential elements
of a crime proved beyond a reasonable doubt. See People v Schultz, 246 Mich App 695, 702;
635 NW2d 491 (2001). The trial court may not determine the credibility of witnesses in
deciding a motion for directed verdict. Id., quoting People v Mehall, 454 Mich 1, 6; 557 NW2d
110 (1997). This Court applies the same standards in reviewing the trial court’s ruling. Schultz,
supra.
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A conspiracy is a voluntary mutual agreement, express or implied, between two or more
persons to commit a criminal act. People v Blume, 443 Mich 476, 481; 505 NW2d 843 (1993).
The conspiracy statute provides punishment for the actual advance planning and agreement to
perform the substantive criminal act. People v Hammond, 187 Mich App 105, 107-108; 466
NW2d 335 (1991), quoting People v Gilbert, 183 Mich App 741, 749-750; 455 NW2d 731
(1990). There must be the intent to combine with others for an unlawful purpose. Blume, supra.
For that intent to exist, the defendant must know of the conspiracy, must know of its objective,
and must intend to participate cooperatively to further that objective. Id. at 485. A conspiracy is
complete upon formation of the agreement; no overt act in furtherance of the conspiracy must be
shown to support a conviction. People v Cotton, 191 Mich App 377, 393; 478 NW2d 681
(1991). Proof of conspiracy may be derived from the circumstances, acts, and conduct of the
parties during the crime, and inferences are permissible. People v Justice (After Remand), 454
Mich 334, 347; 562 NW2d 652 (1997). Minimal circumstantial evidence is sufficient to prove
intent. People v Fennell, 260 Mich App 261, 270-271; 677 NW2d 66 (2004).
The substantive criminal act in this case is first-degree premeditated murder, which is the
intentional killing of a victim where the act of killing was premeditated and deliberate. MCL
750.316(1)(a); People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). Thus, to
sustain a conviction for conspiracy to commit first-degree murder, the prosecution must prove
that (1) the defendant possessed the specific intent to murder, (2) his coconspirators possessed
the specific intent to murder, (3) defendant and his coconspirators possessed the specific intent to
combine for the purpose of deliberating and planning the crime with the intent to kill. See
Blume, supra; Anderson, supra; People v Hamp, 110 Mich App 92, 103; 312 NW2d 175 (1981).
Defendant’s specific intent may be inferred from all of the facts and circumstances surrounding
the crime. People v Lugo, 214 Mich App 699, 709-710; 542 NW2d 921 (1995).
Here, defendant claims that there is “no evidence to support the conclusion that [he] had
the ‘intent required for murder.’” In fact, defendant claims that “all of the evidence adduced at
trial indicates that [he] did not want anyone to be killed.” We disagree. In brief, considered in a
light most favorable to the prosecution, the evidence revealed that defendant and his
coconspirators met together on July 15, 2004, near a coffee shop in Royal Oak where members
of the rival group were patronizing, for the purpose of shooting Markiol Jaku and Martin Vucaj,
members of that rival group. Defendant did not want the shooting to occur, but only because the
shop was too crowded with people. Instead, later that night or the next evening, defendant and
his coconspirators proceeded to watch the coffee shop the rival group members were fixing up to
open which was called Goodfellows. Defendant and his coconspirators were dressed in dark
clothing and were in vehicles with tinted windows. When one of the members of the rival group
left the shop, defendant and some of his friends followed in their vehicle. Defendant rolled his
window down and had a handgun but did not shoot at the rival group member possibly because
of heavy traffic or because they could not tail him close enough to get off a shot.
The day before the shooting, July 16, 2004, defendant and his coconspirators met at a
coney island to discuss shooting members of the rival group at Goodfellows. Later that day, they
also met at Manoku’s apartment to discuss the shooting. They developed a plan to return to
Goodfellows and “shoot up the people,” meaning shoot members of the rival group. Defendant
suggested that the shooter—Manoku—be on the back of a motorcycle just like he had seen in an
action movie and defendant would follow behind to conceal the motorcycle, which was covered
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in blue painters tape. The shooting would occur the next night, July 17, 2004, the night before
coconspirator Oliger Merko’s wedding.
The next day—the day of the planned shooting—one of the coconspirators, Florjon
Carcani, expressed reservations about going through with the shooting. Defendant became angry
and said “You’re going to go along with this.” Preparing for the shooting, defendant and his
coconspirators retrieved weapons, including an AK-47 assault rifle that defendant had purchased
a couple months before. The assault rifle was placed in Merko’s vehicle, the vehicle in which
defendant was riding. After the motorcycle was in position for the shooting, the plan was
changed and defendant and his coconspirators went to an apartment complex. While in the
parking lot, where defendant and his coconspirators were standing by their vehicle that held the
AK-47, a minivan carrying rival group members pulled into the parking lot. Shortly thereafter,
Manoku, pulled his nine millimeter handgun and opened fire, shooting four of the five people in
the minivan as it was attempting to leave. After disposing of evidence and agreeing to an alibi,
defendant and his coconspirators went to defendant’s apartment and pretended to be having a
party. During the police investigation of the shooting, defendant kept in close contact with
Carcani, telling him to “keep the alibi and nothing’s going to happen to you.”
Considering all of the facts and circumstances surrounding the crime, we conclude that
the evidence at trial enabled the jury to find beyond a reasonable doubt that defendant and his
coconspirators possessed the specific intent to murder and defendant and his coconspirators
possessed the specific intent to combine for the purpose of deliberating and planning the murder
with the intent to kill. Thus, the evidence was sufficient to support defendant’s conviction and
his motion for directed verdict was properly denied.
Next, defendant argues that evidence of other bad acts was improperly admitted as MRE
404(b) evidence. We disagree. We review the trial court’s decision for an abuse of discretion.
People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). A trial court abuses its
discretion when it chooses an outcome that is outside the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
The evidence defendant claims was inadmissible was testimony related to purported
actions before the shooting against Kutjim Karapici, a man who was friends with members of the
rival group. In the first incident, which occurred in June of 2004, defendant and Manoku
confronted Karapici after a fist fight between Karapici and defendant’s friend Drini Brahimilari.
Manoku was alleged to have called a meeting with Karapici at which meeting defendant pulled a
knife and pointed it at Karapici. Manoku pulled a gun, pointed it at Karapici, and fired, but
Karapici was not struck by a bullet. In early July of 2004, Manoku again called a meeting with
Karapici, at which meeting Manoku and Merko led him past a table full of knives into a plasticcovered room and told him to kneel. Merko placed a pillow and gun to Karapici’s head and
threatened to kill him because of the disrespect he showed their friend Brahimilari. Karapici
pleaded for his life and agreed to pay a sum of money in exchange for his release.
MRE 404(b) is inclusionary rather than exclusionary. People v VanderVliet, 444 Mich
52, 64; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). “Relevant other acts evidence
does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an
individual to establish that he acted in conformity therewith.” Id. at 65. Therefore, to be
admissible under MRE 404(b), generally bad acts evidence (1) must be offered for a proper
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purpose, (2) must be relevant, and (3) must not have a probative value substantially outweighed
by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004);
VanderVliet, supra at 74-75.
Defendant’s argument on appeal is that “the evidence provided by Karapici was never
linked to any ‘proper purpose’ under MCR 404(b).” But, the prosecution sought admission of
the disputed testimony for the purpose of proving defendant’s intent, preparation, knowledge,
opportunity, or absence of mistake. MRE 404(b). Specifically, the prosecution argued that the
evidence showed knowledge of the defendants working together to commit violent acts with
handguns against other Albanians during the same time period as the shooting and knowledge of
prior conspiracies. On appeal, the prosecution also argues that the disputed testimony was
admissible to establish motive. See People v Sabin (After Remand), 463 Mich 43, 59 n 6; 614
NW2d 888 (2000) (“The prosecution’s recitation of purposes at trial does not restrict appellate
courts in reviewing a trial court’s decision to admit the evidence.”) Nevertheless, defendant’s
argument on appeal fails because clearly the evidence was offered for a proper purpose. See
Knox, supra.
And, to the extent that defendant is arguing that the testimony was not relevant, we
disagree. Evidence is considered “relevant” if it makes the existence of any fact at issue more or
less probable. VanderVliet, supra at 60, quoting MRE 401. “The relationship of the elements of
the charge, the theories of admissibility, and the defenses asserted governs what is relevant and
material.” VanderVliet, supra at 75. Defendant was charged with conspiracy to commit firstdegree murder. The evidence was relevant (1) to establish defendant’s intent to kill members or
friends of the rival group following his threats to kill using a deadly weapon—acts of the same
general category, see id. at 80; (2) to establish defendant’s coconspirators’ intent to kill members
or friends of the rival group following their threats to kill using a handgun; (3) to the
conspiracy’s existence arising from this escalating rivalry that involved prior agreements to act
in a violent manner against members or friends of the rival group; and (4) to the issue of
defendant’s knowledge of the conspiracy, including the objective to kill members or friends of
the rival group and defendant’s intent to participate cooperatively to further that objective.
Finally, we reject defendant’s claim that the probative value of the evidence regarding the
July incident involving Karapici was substantially outweighed by the danger of unfair prejudice
because defendant was not present. Even if the admissibility of the evidence presented a close
question, we would not conclude that the trial court abused its discretion. See People v Bahoda,
448 Mich 261, 289; 531 NW2d 659 (1995). But, if this particular evidence was improperly
admitted, considering the strength of the untainted evidence, defendant cannot demonstrate that it
is more probable than not that the error was outcome determinative. See People v Lukity, 460
Mich 484, 495; 596 NW2d 607 (1999).
Next, defendant argues that he was denied the effective assistance of counsel because
“his attorney neither called witnesses on his behalf nor even contacted any of the potential
witnesses that he identified for his attorney.” Defendant raised his concerns regarding his
counsel in the trial court and the matter was addressed by the court. On appeal, defendant
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requested remand for a Ginther1 hearing and submitted an affidavit in that regard on the grounds
stated above, including that these unnamed witnesses would have testified that he was threatened
by his codefendants and did not take part in some of the events discussed at trial. Pursuant to
MCR 7.211(C)(1)(a)(ii), this Court denied the request.2 Thus, our review is for mistakes
apparent on the existing record. See People v Sabin (On Second Remand), 242 Mich App 656,
658-659; 620 NW2d 19 (2000).
To establish a claim of ineffective assistance of counsel a defendant must show that
counsel’s performance was deficient and a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different. Id. at 659. In showing that counsel’s
representation was deficient, a defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. People v Stanaway, 446 Mich 643, 688; 521
NW2d 557 (1994).
Before the trial commenced and at his sentencing defendant raised his concerns regarding
his counsel’s representation of him. Defendant’s claims included that his attorney (1) did not
extensively discuss his case with him before trial, (2) did not investigate the witnesses defendant
requested be interviewed, (3) did not call any witnesses on his behalf at trial, (4) failed to ask
certain questions of testifying witnesses, and (5) failed to object during the prosecutor’s
questioning or presentation.
Defendant’s counsel briefly addressed defendant’s claims, stating that he had been to jail
twice to see defendant, had read over 1200 pages of discovery materials, had represented
defendant through a very lengthy preliminary examination, had seen defendant at a pretrial and
was fully aware of the facts of the case. Counsel also indicated that with regard to the witnesses
defendant references, defendant had neither given counsel the addresses nor the phone numbers
of those alleged witnesses and those witnesses were not present during the conspiracy or the
homicide. And, in fact, the witnesses to the charged crime were defendant’s friends and a
coconspirator, some of whom testified against defendant.
The trial court concluded that defendant was not deprived the effective assistance of
counsel, as do we. On the record before us, it appears that defendant’s counsel was thoroughly
prepared to represent defendant at trial. Any lack of evidence in support of a defense to the
charge cannot be attributed to any failure of defendant’s counsel. With regard to decisions
concerning the choice of witnesses and questions to ask witnesses, these are matters of trial
strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). We will not substitute
our judgment for that of counsel’s on such matters. People v Barnett, 163 Mich App 331, 338;
414 NW2d 378 (1987). In summary, defendant has failed to overcome the strong presumption
that he received the effective assistance of counsel. See People v LeBlanc, 465 Mich 575, 578;
640 NW2d 246 (2002) (citation omitted).
1
People v Ginther, 390 Mich 436, 445; 212 NW2d 922 (1973).
2
People v Zoica, unpublished order of the Court of Appeals, issued January 11, 2007 (Docket
No. 270881).
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Finally, defendant argues that his sentence of life without parole for the conspiracy to
commit first-degree murder conviction constituted plain error because it is a parolable offense.3
The prosecution has agreed that it is a parolable offense. See MCL 791.234(6); People v Jahner,
433 Mich 490, 504; 446 NW2d 151 (1989). Therefore, the matter is remanded for correction of
the judgment of sentence in this regard.
Affirmed, but remanded for the ministerial task of correcting the judgment of sentence in
accordance with this opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
3
We granted defendant’s motion to join the legal argument presented by his codefendants in
regard to this issue. People v Zoica, unpublished order of the Court of Appeals, issued February
26, 2008 (Docket No. 270881).
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