PEOPLE OF MI V FARAND ULYSSES PHILLIPS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 21, 2009
Plaintiff-Appellee,
v
No. 282607
Wayne Circuit Court
LC No. 07-005515-FC
FARAND ULYSSES PHILLIPS,
Defendant-Appellant.
Before: Beckering, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to rob while
armed, MCL 750.89, felon in possession of a firearm, 750.224f, possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon
in a motor vehicle, MCL 750.227. Defendant was sentenced to 7 to 12 years’ imprisonment for
the assault with intent to rob while armed conviction, two to five years’ imprisonment for the
felon in possession of a firearm conviction, two years’ imprisonment for the felony-firearm
conviction, and two to five years’ imprisonment for the concealed weapon conviction. We
affirm.
On appeal, defendant contends that he was denied the effective assistance of counsel
because his attorney failed to present a defense based on necessity and duress or to request a jury
instruction on these theories. “Whether a person has been denied the effective assistance of
counsel is a mixed question of fact and law. A judge first must find the facts, and then must
decide whether those facts constitute a violation of the defendant’s constitutional right to
effective assistance of counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
This Court reviews the factual findings for clear error and the constitutional question de novo.
Id. Because defendant failed to request a Ginther1 hearing, this Court’s review is limited to
mistakes apparent on the record. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).
Under the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art
1, § 20, the guaranteed right to counsel, “encompasses the right to ‘effective’ assistance of
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). “Effective assistance
of counsel is presumed, and defendant bears a heavy burden to prove otherwise.” People v
Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004). “To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and there is a reasonable probability that, but
for counsel’s error, the result of the proceedings would have been different.” People v Scott, 275
Mich App 521, 526; 739 NW2d 702 (2007), quoting People v Effinger, 212 Mich App 67, 69;
536 NW2d 809 (1995). “Defendant must overcome the strong presumption that counsel’s
performance was sound trial strategy.” Dixon, supra at 396.
Duress is an affirmative defense premised on “[t]he rationale . . . that, for reasons of
social policy, it is better that the defendant faced with a choice of evils, choose to do the lesser
evil (violate the criminal law) in order to avoid the greater evil threatened by the other person.”
People v Lemons, 454 Mich 234, 245-246; 562 NW2d 447 (1997) (citation omitted). Stated
more succinctly, the defense is “applicable in situations where the crime committed avoids a
greater harm.” Id. To support instructing the jury on the defense of duress, a defendant bears the
burden of producing “some evidence from which the jury can conclude that the essential
elements of duress are present.” Lemons, supra at 246 (citation and internal quotation marks
omitted). To be entitled to an instruction on duress, a defendant must present evidence, which
demonstrates:
(A) The threatening conduct was sufficient to create in the mind of a reasonable
person the fear of death or serious bodily harm; (B) The conduct in fact caused
such fear of death or serious bodily harm in the mind of the defendant; (C) The
fear or duress was operating upon the mind of the defendant at the time of the
alleged act; and (D) The defendant committed the act to avoid the threatened
harm. [People v McKinney, 258 Mich App 157, 164; 670 NW2d 254 (2003).]
Although defendant contends he was entitled to an instruction on duress based on
testimony presented at trial, he has failed to establish that the alleged threatening conduct of his
codefendants was of sufficient magnitude to create in the mind of a reasonable person the fear of
death or serious bodily harm. As noted by the prosecutor, while defendant may have been
intimidated by his codefendants he was never subjected to any threats. Defendant testified that
he dropped off Caribe Sanford and Jeffrey Trice, Jr., and waited for them in the car, believing
that they were visiting Sanford’s aunt. When his codefendants returned, defendant observed
Sanford with a handgun. However, there was no testimony that Sanford or Trice ever threatened
defendant with the weapon. At most, defendant was merely instructed not to speak and to drive
the vehicle. There is no evidence to suggest that Sanford or Trice gave any verbal or physical
indication to defendant that he would be harmed if he refused to continue driving. Specifically,
there was no testimony that either codefendant ever pointed a gun at defendant, made any
threatening gestures, or engaged in any form of physical contact with defendant.
This Court has previously held that being slapped and ordered to drive is not sufficient to
cause a reasonable person to fear death or serious bodily harm. People v Gimotty, 216 Mich App
254, 257; 549 NW2d 39 (1996). Although Sanford was in possession of a gun, he placed it in
the vehicle’s glove compartment as soon as he and Trice returned and entered the car. Because
defendant’s testimony is not sufficient to create a prima facie case for duress, he was not entitled
to a jury instruction on this theory. Therefore, defense counsel cannot be deemed ineffective for
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failing to pursue a meritless argument. People v Jordan, 275 Mich App 659, 668; 739 NW2d
706 (2007).
Defendant further claims that his counsel was ineffective for failing to even raise the
defense of duress. To establish the ineffective assistance of counsel in this context, defendant
must show that he was deprived of a substantial defense. “A substantial defense is one which
might have made a difference in the outcome of the trial.” People v Kelly, 186 Mich App 524,
526; 465 NW2d 569 (1990). However, “this Court will not substitute its judgment for that of
counsel regarding matters of trial strategy.” People v Davis, 250 Mich App 357, 368; 649 NW2d
94 (2002).
A review of the trial transcripts demonstrates that defense counsel could not have
proffered a successful duress defense because it would have been inconsistent and contradictory
with defendant’s asserted defense that he was completely unaware of his codefendants’ plans or
actions. Sanford and Trice both testified on behalf of defendant, that he was completely unaware
and not involved in the attempted robbery. However, these codefendants did not assert that they
engaged in any form of threat or coercion to induce defendant to drive the vehicle. If defense
counsel had argued duress, it would have effectively diminished the credibility of defendant’s
own witnesses, who averred that defendant played no role in the attempted robbery. Based on
his failure to demonstrate that a defense of duress was viable or to overcome the strong
presumption that his counsel’s performance constituted sound trial strategy, defendant’s
contention that he was deprived of a substantial defense is without merit. Dixon, supra at 396.
Finally, defendant also suggests that his trial counsel was ineffective for failing to argue
necessity as a defense. On appeal, defendant attempts to merge the defenses of duress and
necessity. However, the defense of necessity “applies to situations involving natural physical
forces, whereas duress applies to the threatened conduct of another human being.” People v
Jones, 193 Mich App 551, 554; 484 NW2d 688 (1992), rev’d on other grounds 443 Mich 88
(1993). Because there is absolutely no evidence that defendant’s conduct was the result of or
influenced by a natural physical force, an instruction or pursuit of the defense of necessity would
not have been proper. Therefore, defendant’s counsel was not ineffective for failing to pursue a
meritless argument. Jordan, supra at 668.
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
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