PEOPLE OF MI V MICHAEL AMBERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellee,
v
No. 277022
Wayne Circuit Court
LC No. 06-009117-01
MICHAEL AMBERS,
Defendant-Appellant.
Before: Gleicher, P.J., and Fitzgerald and Hoekstra, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions for assault with intent to commit
murder, MCL 750.83, assault with a dangerous weapon, MCL 750.82, intentional discharge of a
firearm at a dwelling, MCL 750.234b, and possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant to prison terms of 14 to 30 years for
the assault with intent to murder conviction, one to four years each for the felonious assault and
intentional discharge of a firearm at a dwelling convictions, and to a consecutive two-year term
for the felony-firearm conviction. We affirm.
Defendant first argues that he did not receive the effective assistance of counsel at trial.
This Court’s review of an unpreserved ineffective assistance of counsel claim is limited to
mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
Such a claim is established only where a defendant is able to demonstrate that trial counsel’s
performance “fell below an objective standard of reasonableness and that this was so prejudicial
to him that he was denied a fair trial.” People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000). A defendant is required to overcome a strong presumption that sound trial strategy
motivated trial counsel’s conduct. Id. Additionally, a defendant must demonstrate a reasonable
probability that the result of the proceedings would have been different but for the counsel’s
errors in order to show prejudice. Id. at 302-303. Counsel’s performance is “measured against
an objective standard of reasonableness under the circumstances and according to prevailing
professional norms.” People v Solomonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).
Moreover, “this Court neither substitutes its judgment for that of counsel regarding matters of
trial strategy, nor makes an assessment of counsel’s competence with the benefit of hindsight.”
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
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I
Defendant argues that he was denied the effective assistance of counsel because defense
counsel elicited damaging testimony on cross-examination, had no apparent defense theory of
the case, declined to argue any lesser-included offenses, admitted that defendant was guilty of
aiding and abetting, failed to challenge the element of intent required for a conviction for assault
with intent to commit murder, and did not argue that defendant’s actions were mitigated by
events that transpired at an earlier altercation.
As a preliminary matter, we note that defendant’s analysis of the first five allegations of
ineffective assistance is minimal, and there is a conspicuous absence of any argument regarding
the application of relevant law. “An appellant’s failure to properly address the merits of his
assertion of error constitutes abandonment of the issue.” People v Harris, 261 Mich App 44, 50;
680 NW2d 17 (2004).
Nonetheless, defendant has failed, in each of his first five allegations of error, to
overcome the heavy presumption that sound trial strategy motivated defense counsel. Defendant
first asserts that his trial counsel was ineffective because counsel elicited damaging testimony
from a witness during cross-examination. However, the decision of trial counsel to pursue a line
of questioning will not form the basis for an ineffective assistance of counsel claim unless it is
impossible to conceive of a valid strategic reason for the questioning, even in light of the
possibility that the resulting testimony could be damaging. People v Pickens, 446 Mich 298,
330; 521 NW2d 797 (1994).
The record reveals that defense counsel attempted to impeach witness Amir Collins with
inconsistencies between the statements he provided to the police and his testimony at trial. The
inference drawn from defense counsel’s questioning of Collins is that counsel was attempting to
persuade the trier of fact that Collins’s testimony was unreliable, or alternatively, that Collins
was fabricating all or part of his testimony. Thus, although trial counsel’s questioning of Collins
resulted in testimony that was ultimately unfavorable to defendant, because defense counsel’s
decision to pursue the line of questioning was a matter of trial strategy, this Court will not
substitute its judgment for that of counsel regarding this matter. People v Rockey, 237 Mich App
74, 76-77; 601 NW2d 887 (1999).
Defendant also asserts that defense counsel failed to articulate a defense theory.
However, the record reveals that defense counsel did in fact present a cognizable defense theory.
Defense counsel argued that although defendant was present at the time and place of the
shooting, the evidence demonstrated that Brandon Jones, and not defendant, shot the victim, and
that the inconsistencies between the witnesses’ testimony and their prior statements to the police
showed that the witnesses freely embellished their recollections of the events at trial. Moreover,
defense counsel argued that, under the circumstances, it would have been impossible for the
witnesses to actually observe what they claimed to have seen with regard to defendant’s
participation in the shooting. Defense counsel concluded by arguing that the prosecution had not
sustained its burden of proving that defendant possessed a firearm; accordingly, defense counsel
asserted that defendant could not be guilty of the charged crimes either directly or as an aider and
abetter. Although defense counsel’s theory of the case did not result in acquittal on any of the
charges, because defendant has failed to demonstrate that defense counsel deprived defendant of
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a substantial defense, defendant’s argument that his trial counsel was ineffective fails. People v
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
Defendant next asserts that his trial counsel failed to argue that the trial court should
consider a lesser-included offense. However, defendant’s argument is insufficient to overcome
the strong presumption that defense counsel’s decision was motivated by sound trial strategy.
Although an argument that a lesser-included offense could possibly have resulted in defendant’s
conviction of a less serious crime, it would have been equally possible that such an argument
would have made it easier for the trial court to find defendant guilty. Thus, defense counsel’s
decision to ask for acquittal on all four charges is presumed to have been sound trial strategy.
With regard to defendant’s next argument, that defense counsel conceded during closing
argument that defendant was guilty of aiding and abetting Jones, the record reveals that counsel
actually argued that but for the prosecution’s failure to prove that defendant possessed a firearm
during the altercation, defendant would be guilty of aiding and abetting. Because the record
shows that defense counsel did not make the argument asserted on appeal, defendant’s assertion
is without merit.
Defendant next contends that defense counsel failed to argue that the prosecution failed
to prove the specific intent element of assault with intent to murder charge. However, in closing
argument, defense counsel argued:
Finally, I think I have to kind of address the specific intent argument as to Mr.
Jones since the theory on that appears to be primarily aiding and abetting. That
under the circumstances, while you might have a straight angle on one plane, you
do not have a straight angle on another plane. Seeing all the way through from
one side of the house to the other, with a ten foot rise, I think that would negate
specific intent, even as to Mr. Jones.
Because the record demonstrates that defense counsel did in fact argue that the
prosecution failed to prove that Jones possessed the requisite specific intent to commit murder,
and because defense counsel was aware that the prosecution’s theory was that defendant had
aided and abetted Jones, defendant’s claim that his counsel was ineffective in failing to contest
that the prosecution proved the element of intent lacks merit.
Finally, defendant argues that defense counsel failed to argue that defendant’s actions
were mitigated by an earlier altercation. However, defendant fails to explain how the earlier
altercation could mitigate the subsequent actions of defendant and Jones. Further, there is
nothing in the record to demonstrate that either defendant or Jones acted in the heat of passion
caused by adequate provocation, or that defendant would have been entitled to invoke the theory
of self-defense had he not been an initial aggressor; therefore, circumstances where mitigation
could arguably apply are absent from this case. People v Pouncy, 437 Mich 382, 388; 471
NW2d 346 (1991); People v Kemp, 202 Mich App 318, 323; 508 NW2d 184 (1993). Because
the record does not reveal any basis for defense counsel to have raised a mitigation defense, and
because defense counsel is not required to advance a meritless argument, defendant’s contention
that his trial counsel was ineffective fails.
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II
Defendant collaterally attacks the trial court’s decision to assess five points under OV 12,
MCL 777.42, by asserting he was denied the effective assistance of counsel when counsel failed
to object to the score at his sentencing. Had the trial court assessed zero points instead of five
points for OV 12, defendant’s minimum range would have been 108 to 180 months’
imprisonment, and not 126 to 210 months, the actual range under which defendant was
sentenced. MCL 777.62. The trial court assessed a total of 80 points under the sentencing
guidelines, which placed defendant in OV level V. Had the trial court assessed zero points for
OV 12, defendant’s total OV score would have dropped to 75, and defendant’s score would have
consequently fallen within the range of OV level IV. MCL 777.62. The trial court sentenced
defendant to 168 months, which is within both the actual and disputed ranges. MCL 777.62.
This Court may review a challenge to a trial court’s scoring decision where the defendant
claims that his counsel was ineffective in failing to object to a scoring error. People v Francisco,
474 Mich 82, 90 n 8; 711 NW2d 44 (2006).
MCL 777.42 provides, in relevant part:
(1) Offense variable 12 is contemporaneous felonious criminal acts. Score
offense variable 12 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:
***
(d) One contemporaneous felonious criminal act involving a crime against
a person was committed. . . . 5 points
(e) Two contemporaneous felonious criminal acts involving other crimes
were committed. . . . 5 points
***
(2) All of the following apply to scoring offense variable 12:
(a) A felonious criminal act is contemporaneous if both of the following
circumstances exist:
(i) The act occurred within 24 hours of the sentencing offense.
(ii) The act has not and will not result in a separate conviction.
Here, the record demonstrates that the trial court found defendant guilty as charged on all
counts. Moreover, the trial court did not articulate its reasons for assessing five points under OV
12, and the scoring of OV 12 was mentioned at defendant’s sentencing only in the context that
defense counsel advised the trial court that he did not object to the scoring of OV 12. However,
there is sufficient evidence in the record to show that defendant could have been charged with at
least one additional count of aiding and abetting assault with intent to murder. The elements of
assault with intent to commit murder are: “‘(1) an assault, (2) with an actual intent to kill, (3)
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which, if successful, would make the killing murder.’” People v Brown, 267 Mich App 141,
147-148; 703 NW2d 230 (2005), quoting People v Davis, 216 Mich App 47, 53; 549 NW2d 1
(1996). “An assault may be established by showing either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005). “The intent to kill may be proven
by inference from any facts in evidence.” People v Abraham, 234 Mich App 640, 658; 599
NW2d 736 (1999), quoting People v Warren (After Remand), 200 Mich App 586, 588; 504
NW2d 907 (1993). “A person may have that state of mind without directing it any particular
victim.” Abraham, supra at 658. “The three elements necessary for a conviction under an aiding
and abetting theory are: (1) the crime charged was committed by the defendant or some other
person; (2) the defendant performed acts or gave encouragement that assisted the commission of
the crime; and (3) the defendant intended the commission of the crime or had knowledge that the
principal intended its commission at the time that [the defendant] gave aid and encouragement.”
People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006).
Here, witness Traveil Petties testified that he and Johnson sought shelter in the basement
when defendant and Jones approached the house carrying firearms. Petties observed a man
outside the west-side window load a shell into a shotgun. Although Petties was unable to
identify Jones as the shooter, witnesses Collins, Carl Evans, and Demeshiho Bomer testified that
Jones was the man who pointed his gun from the west side of the house. Petties attempted to
pull Johnson down the basement stairs when Petties heard the discharge of a gun, and Johnson
fell, having been shot.
This record evidence demonstrates that by loading the shotgun and pointing the gun at the
window, Jones committed an unlawful act that placed Petties in reasonable apprehension of
receiving an immediate battery. Further, a reasonable trier of fact could infer that Jones fired his
gun with the intent to kill an occupant of the house when fired his gun through the window of the
residence. Moreover, had Jones killed Petties, the killing would have been murder because there
was no evidence that Jones was acting with justification or excuse when Jones recklessly shot
through the window of the occupied dwelling. See People v Smith, 478 Mich 64, 70; 731 NW2d
411 (2007).
The evidence shows that defendant gave aid, encouragement and assistance to Jones
when Jones assaulted Petties with the intent to commit murder. Both Collins and Evans testified
that defendant proceeded with his gun to the rear of the house before Jones pointed his gun at the
west side window of the residence. Collins testified further that he observed defendant discharge
a firearm at the house. Thus, defendant aided and abetted Jones when Jones assaulted Petties
with the intent to commit murder.
Accordingly, defendant committed at least one contemporaneous felonious criminal act
against Petties within 24 hours of the sentencing offense, and that act, aiding and abetting assault
with intent to murder, has not and will not result in a separate conviction. MCL 777.42.
Accordingly, the trial court correctly assessed five points for OV 12, and an objection by defense
counsel to the trial court’s decision to score five points for OV 12 would have been futile.
Because an ineffective assistance of counsel claim cannot be premised on defense counsel’s
failure to raise a futile objection, defendant’s claim of ineffective assistance on this ground lacks
merit. People v Jordan, 275 Mich App 659, 668; 739 NW2d 706 (2007).
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III
Defendant argues that the evidence was insufficient to demonstrate that defendant
possessed the specific intent to kill, which is an element of assault with intent to commit murder.
We disagree.
This Court reviews the record de novo when presented with a claim of insufficient
evidence. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). Reviewing the
evidence in a light most favorable to the prosecution, this Court determines whether a rational
trier of fact could find that the elements of the crime were proven beyond a reasonable doubt.
People v McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003). This Court will not
interfere with the fact-finder’s role in weighing the evidence and judging the credibility of
witnesses. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201
(1992). It is for the trier of fact to decide what inferences can be fairly drawn from the evidence
and to judge the weight it accords to those inferences. People v Hardiman, 466 Mich 417, 428;
646 NW2d 158 (2002). Conflicts in the evidence are resolved in the prosecution’s favor. People
v Fletcher, 260 Mich App 531, 562; 679 NW2d 127 (2004).
Here, when viewed in a light most favorable to the prosecution, the evidence
demonstrates that three men armed with firearms, including defendant, approached a residence
on the corner of Bessemore Street and McClellan Street in the city of Detroit. One of the three
men, Brandon Jones, positioned himself at the McClellan side of the dwelling, and defendant
proceeded to the rear of the house. Jones raised his firearm at the window on the McClellan side
of the house. One witness, Tiffany Larkin, testified that Jones fired at least one shot at the house.
Another witness, Collins, testified that he saw both defendant and Jones fire guns at the house.
A reasonable inference a rational trier of fact could draw from this testimony is that if the
witnesses could see defendant and Jones, defendant and Jones could see the witnesses; therefore,
both defendant and Jones knew the dwelling was occupied when Jones, or both defendant and
Jones, fired through the windows of the house. Both the side window where Jones pointed his
weapon, and the rear window sustained damage attributable to a firearm. Finally, Terrance
Johnson sustained a non-fatal gunshot wound to the head.
This evidence demonstrates that Jones discharged a firearm at an occupied dwelling, and
as a result, Johnson sustained a gunshot wound. From these facts a rational trier of fact could
infer the actual intent to kill from Jones’s willful disregard of the possibility that death or great
bodily harm could result by firing his gun through the window of the Bessemore Street house.
Abraham, supra at 658. When viewed in a light most favorable to the prosecution, this evidence
and the inferences that may reasonably be drawn from it, demonstrates that Jones committed an
assault with the actual intent to kill. Robinson, supra at 6.
Under an aiding and abetting theory, the prosecution was then required to show that
defendant “performed acts that assisted in the commission of the crime,” and that defendant
“intended the commission of the crime at the time” defendant “gave aid and encouragement.”
Robinson, supra at 6. Resolving any conflicts in the evidence in the prosecution’s favor, a
rational trier of fact could infer that defendant aided and abetted Jones in shooting Johnson from
the evidence that defendant proceeded with his gun to the rear of the house while Jones fired the
shot through the McClellan side window of the house. This conclusion is supported by Collins’s
testimony that he observed defendant discharge a firearm at the house, and evidence that both the
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side window where Jones was standing and the rear window where defendant was standing
sustained damage from gunshots. A rational trier of fact could also infer from this evidence that
defendant aided and abetted Jones when Jones assaulted Johnson with the intent to commit
murder. Robinson, supra at 6. Accordingly, the evidence was sufficient to support defendants’
conviction of assault with intent to commit murder.
IV
Lastly, defendant argues that the trial court improperly assessed ten points for OV 4
because there was no evidence that the victim suffered serious psychological injury. We
disagree.
This Court reviews a trial court’s scoring decision under the sentencing guidelines for an
abuse of discretion. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). The
construction and application of the sentencing guidelines presents a question of law that is
reviewed de novo. People v Johnson, 474 Mich 96, 99; 712 NW2d 703 (2006).
Ten points are allocated under MCL 777.34(2) where “serious psychological injury” to a
crime victim “may require professional treatment.” Moreover, “the fact that treatment has not
been sought is not conclusive.” MCL 777.34(2). If there is evidence in the record to show that
the victim was fearful during the incident, ten points are properly assessed under OV 4. People v
Apgar, 264 Mich App 321, 329; 690 NW2d 312 (2004). This Court will affirm a scoring
decision, provided that there is any evidence in the record supporting the decision. Hornsby,
supra at 468.
Here, the record reveals that Johnson was shot in the head. Johnson testified that the
gunshot wound worsened his memory and rendered him unable to work. The trial court had the
opportunity to observe the demeanor of Johnson and hear his description of events, and reviewed
the relevant medical records. See People v Wilkens, 267 Mich App 728, 740-741; 705 NW2d
728 (2005) (holding that it was not an abuse of discretion for the trial court to assess ten points
under OV 4 where the trial court reviewed a videotape of a criminal sexual conduct incident and
was able to observe the demeanor of the victims). In light of the fact that Johnson was shot in
the head and suffered at least some memory loss attributable to the gunshot wound, the evidence
is adequate to support a finding that Johnson sustained a serious psychological injury that may
require professional treatment in the future. Accordingly, the trial court did not abuse its
discretion in scoring OV 4.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
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