PEOPLE OF MI V FLOYD LEE MCMURRAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 1, 2010
Plaintiff-Appellee,
v
No. 291355
Wayne Circuit Court
LC No. 2008-010504-FC
FLOYD LEE MCMURRAY,
Defendant-Appellant.
Before: METER, P.J., and SERVITTO and BECKERING, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of felony murder, MCL
750.316(b), felon in possession of a firearm, MCL 750.224f, and felony firearm, MCL 750.227b.
Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to a term of life
imprisonment on the felony murder conviction, to be served concurrent to a 48-100 month term
on the felon in possession conviction, both of which are to be served consecutive to a two year
term for the felony firearm conviction. Because the trial court did not abuse its discretion in
denying defendant’s request for substitute counsel, the evidence did not support a jury instruction
on self-defense, and there was sufficient evidence to convict defendant of felony murder, we
affirm.
Defendant was charged in this matter in connection with the shooting death of James
Johnson. Defendant and Mr. Johnson had been friends for many years and both were engaged in
the buying and selling of cocaine. In the early morning hours of May 1, 2008, defendant
contacted Mr. Johnson and an agreement was made whereby defendant would get a ride from a
friend from defendant’s home in Ann Arbor to Mr. Johnson’s home in the city of Detroit so that
defendant could purchase a quantity of cocaine from Mr. Johnson. After entering Mr. Johnson’s
home, Mr. Johnson and defendant began arguing. During the argument, a gun was drawn. Mr.
Johnson was ultimately shot in the head, three times, and died from his injuries. Defendant left
the home, taking the gun with him and disposing of it. He was later charged with murder, felony
firearm, and felon in possession of a firearm.
On appeal, defendant first contends that the trial court abused its discretion when it
denied his request for substitute counsel. We disagree.
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This Court reviews a trial court's decision regarding substitute counsel for an abuse of
discretion. People v Akins, 259 Mich App 545, 556; 675 NW2d 863 (2003). An indigent
defendant is entitled to appointed counsel; he is not, however, entitled to appointed counsel of
his own choice. People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). Appointment of
substitute counsel is warranted only upon a showing of good cause and if substitution will not
unreasonably disrupt the judicial process. Id. “Good cause exists where a legitimate difference
of opinion develops between a defendant and his appointed counsel with regard to a fundamental
trial tactic.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001), quoting People v
Mack, 190 Mich App 14.
Here, defendant made no showing of good cause for the substitution of appointed
counsel. Defense counsel moved to withdraw from representation, and, at the hearing on his
motion, indicated that defendant wanted his family to retain counsel for him and when they could
not, defendant took his frustration out on appointed counsel. Defense counsel also indicated that
defendant had a different attorney appointed to represent him in a separate matter and counsel
believed defendant’s goal was to have that counsel appointed in this matter as well.
Defense counsel advised the trial court that he did not believe he did anything to incur
defendant’s disrespect, but felt that he could not make defendant happy. Counsel further stated
that he had been asked to do things he did not agree with and felt that he could not ethically
pursue the courses of action defendant requested. Counsel also admitted, however, that if the
court appointed someone in his stead, new counsel would likely end up in the same situation.
Counsel also confirmed that he was not willing to put up with defendant’s discourtesy and
disrespect.
In a motion for reconsideration filed by defendant in pro per, defendant indicated that
counsel was ineffective, had been deceitful to defendant, and had rejected defendant’s assistance.
Defendant did not detail, however, what assistance had been rejected, how counsel was deceitful,
and provided no sound basis for his claim that counsel was ineffective. Furthermore, defendant
has neither asserted nor demonstrated any prejudice resulting from the trial court's decision.
Moreover, when defendant’s pro per motion was effectively denied, the trial court asked
him if she wished to proceed in pro per or remain represented by the counsel appointed him.
Defendant stated that he felt it would be best if he remained represented by his counsel. Counsel
thereafter met with defendant on several occasions, and filed pre-trial motions and argued the
same vigorously on defendant’s behalf. It appears from the record that counsel engaged in
meaningful discovery, again filing motions on defendant’s behalf to obtain relevant evidence,
when necessary, and strongly advocated on defendant’s behalf at trial. If, in fact, defendant’s
dissatisfaction with counsel stems from his desire to have had counsel engage in conduct counsel
felt was unethical, this does not equate to a difference of opinion with respect to trial strategy.
Having one’s counsel engage in unethical conduct cannot be considered a legitimate trial
strategy.
In short, the record reflects that counsel adequately and competently represented
defendant. Defendant has not explained what counsel should have done differently or how the
outcome might have been different had substitute counsel been retained. Having failed to
establish good cause for the substitution of counsel, the trial court did not abuse its discretion in
denying defendant’s request for the appointment of the same.
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Defendant next claims entitlement to a new trial on the basis of the trial court’s failure to
instruct the jury on the defense of self-defense. We review claims of instructional error de novo.
People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). However, we review a trial
court's determination that a jury instruction is not applicable to the facts of the case for an abuse
of discretion. People v McKinney, 258 Mich App 157, 163; 670 NW2d 254 (2003).
Jury instructions must include all elements of the charged offenses, and must not exclude
relevant issues, defenses, and theories if supported by the evidence. People v McGhee, 268 Mich
App 600, 606; 709 NW2d 595 (2005). Further, before the trial court is required to instruct the
jury regarding an affirmative defense, the defendant must produce some evidence on all of its
elements. People v Crawford, 232 Mich App 608, 620; 591 NW2d 669 (1998). “Instructional
errors that directly affect a defendant's theory of defense can infringe a defendant's due process
right to present a defense.” People v Kurr, 253 Mich App 317, 326-327; 654 NW2d 651 (2002).
However, erroneous instructions will only warrant reversal if the defendant can demonstrate that
the error undermined the reliability of the verdict. People v Hawthorne, 474 Mich 174, 184-185;
713 NW2d 724 (2006).
At the conclusion of trial testimony, defense counsel requested an instruction on selfdefense. The prosecutor argued that self-defense was not an appropriate instruction, given that
the defendant testified that he never engaged in any intentional act to cause the death of the
victim. The trial court agreed, instead instructing the jury on the defense of accident. After a
review of the record, we are satisfied that the trial court did not abuse its discretion in
determining that a self-defense instruction was not applicable to the facts of the case, and that
there was thus no instructional error.
A defendant acts in self-defense when he “honestly and reasonably believes that his life is
in imminent danger or that there is a threat of serious bodily harm.” People v Heflin, 434 Mich
482, 502; 456 NW2d 10 (1990). The use of deadly force in self-defense is justified if each of the
following is shown: (1) the defendant honestly and reasonably believed that he was in danger, (2)
the danger which the defendant feared was serious bodily harm or death, and (3) the action taken
by the defendant appeared at the time to be immediately necessary, i.e., the defendant is only
entitled to use the amount of force necessary to defend himself. MCL 780.972(1)(a); Heflin, 434
Mich at 502;
The evidence here showed that defendant and Mr. Johnson engaged in a somewhat
lengthy argument that escalated into a physical struggle over a gun. Defendant testified at trial
that Mr. Johnson grabbed a gun and pointed it toward defendant, causing defendant to believe
that Mr. Johnson was going to kill him. Defendant testified that he grabbed Mr. Johnson’s wrist
and the two struggled over the gun, falling to the floor. Defendant testified that as they fell, the
gun went off. According to defendant, they both had their hands on the gun, but Mr. Johnson’s
finger was on the trigger when it went off. Defendants own testimony, then, suggests Mr.
Johnson was accidentally shot during the struggle. “A finding that a defendant acted in
justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but
that the circumstances justified his actions.” Heflin, 434 Mich at 503. At no time did defendant
testify that he ever had his finger on the trigger, let alone that he intentionally shot Mr. Johnson.
The only person to testify as to how the gun discharged was defendant, and his testimony is
inconsistent with self-defense.
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Additionally, defendant has not shown that if, in fact, the failure to give a self-defense
instruction was erroneous, that the error undermined the reliability of the verdict. Hawthorne,
474 Mich at 184-185. While defendant testified that the gun went off during a struggle between
him and Mr. Johnson, the medical examiner testified that Mr. Johnson’s wounds did not come
from shots fired at close range. The medical examiner testified that the shots were fired from at
least 2-3 feet away from Mr. Johnson. Moreover, while defendant testified that a female friend
named Tammy drove him to Mr. Johnson’s home on the morning of the incident, another female,
Christina, testified that she was the one who drove defendant to the home, that she remained
outside for the approximately 30 minutes while defendant was inside, that she heard gunshots
during the 30 minute period, and that defendant thereafter walked calmly back to the car.
Christina also testified that she later heard defendant say to another person that he did not need to
“worry about that nigga anymore” and it made her believe he was talking about Mr. Johnson.
Given the testimony that contradicted defendant’s testimony, the jury may have reasonably
disregarded defendant’s entire account of the incident.
Defendant’s final argument on appeal is that there was insufficient evidence to convict
him of felony murder or, alternatively, that his motion for directed verdict should have been
granted.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Martin, 271
Mich App 280, 340; 721 NW2d 815 (2006). In reviewing such a claim, we view the evidence in
the light most favorable to the prosecutor to determine whether the trial court could have found
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). Appellate review of a challenge to the
sufficiency of the evidence is deferential. People v Nowack, 462 Mich 392, 400; 614 NW2d 78
(2000). The reviewing court must draw all reasonable inferences and examine credibility issues
that support the jury verdict. Id. This Court must not interfere with the jury's role as the sole
judge of the facts when reviewing the evidence. People v Meshell, 265 Mich App 616, 619; 696
NW2d 754 (2005). “Circumstantial evidence and reasonable inferences drawn from it may be
sufficient to establish the elements of a crime.” People v Fennell, 260 Mich App 261, 270; 677
NW2d 66 (2004).
We review a decision on a directed verdict motion de novo and, similarly, review the
evidence in a light most favorable to the prosecution in order to determine whether a rational
trier of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. People v Gillis, 474 Mich. 105, 113; 712 NW2d 419 (2006). Challenges
raised in a directed verdict motion to the sufficiency of the evidence are resolved by considering
all of the evidence presented up to the time the defendant moved for a directed verdict. People v
Allay, 171 Mich App 602, 605; 430 NW2d 794 (1988).
Felony murder is:
(1) the killing of a human being; (2) with the intent to kill, to do great bodily
harm, or to create a high risk of death or great bodily harm with knowledge that
death or great bodily harm was the probable result; (3) while committing [or]
attempting to commit. . .any of the felonies specifically enumerated in MCL
750.316. . .
People v Hutner, 209 Mich App 280, 282-283; 530 NW2d 174 (1995).
-4-
It is not necessary that the murder be contemporaneous with the enumerated felony; only that the
defendant intended to commit the underlying felony at the time the homicide occurred. People v
Brannon, 194 Mich App 121, 125: 486 NW2d 83 (1992).
Here, the predicate felony for charging defendant with felony murder was larceny—one
of the felonies enumerated in MCL 750.316. “The basic elements of larceny are (1) an actual or
constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying
away must be with a felonious intent, (4) the subject matter must be the goods or personal
property of another, (5) the taking must be without the consent and against the will of the
owner.” People v Cain, 238 Mich App 95, 120; 605 NW2d 28 (1999).
Defendant moved for a directed verdict on the felony murder charge, arguing that there
was no evidence that defendant committed a larceny at Mr. Johnson’s home. The trial court
denied the motion based upon the evidence that defendant took the gun that was used to shoot
Mr. Johnson with him when he left Mr. Johnson’s home. We note, however, that there was no
evidence whatsoever that defendant formulated an intent to take the gun before or at the time of
the actual killing. Given that the felony murder statute requires a killing while or at the time the
defendant committed or attempted to commit a larceny (CJI2d 16.4), and all evidence indicates
that defendant took the gun after the completion of the murder in order to dispose of it as the
murder weapon, the taking of the gun does not fall within the meaning and intent of the felony
murder statute. However, as indicated by the prosecutor, there was evidence that defendant took
drugs from Mr. Johnson, and this Court will not reverse where the trial court reached the right
result for the wrong reason. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
The witness who testified to taking defendant to Mr. Johnson’s house on the morning of
the murder testified that when defendant returned to her vehicle, after having been in Mr.
Johnson’s home for approximately 30 minutes, he had cocaine with him that she had not seen
him with prior to entering the home. A police officer who interviewed the witness testified that
the witness told her about overhearing defendant speaking to another individual about no longer
having to worry about someone taking his clientele. Defendant later testified that he went to Mr.
Johnson’s for the purpose of buying drugs, and that both he and Mr. Johnson bought and sold
drugs. Defendant testified that when he entered Mr. Johnson’s home, he saw a casserole dish
containing cocaine. Defendant testified that Mr. Johnson threw the casserole dish in the sink,
breaking it, while the two were arguing. An evidence technician who gathered evidence at Mr.
Johnson’s home several hours after the murder testified, however, that there were only liquor
bottles in the sink, at least one of which was broken. The technician and other officers who
collected evidence at Mr. Johnson’s home testified that there was no cocaine or money found in
Mr. Johnson’s home. The evidence that defendant went to Mr. Johnson’s home to purchase
cocaine, defendant saw cocaine at Mr. Johnson’s home, defendant possessed cocaine when he
left Mr. Johnson’s home and, following Mr. Johnson’s death, no cocaine was found in the home,
is sufficient circumstantial evidence to convince a reasonable juror that defendant intended to
steal cocaine from Mr. Johnson and that Mr. Johnson’s killing occurred when defendant was
committing or attempting to commit a larceny.
-5-
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ Jane M. Beckering
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