PEOPLE OF MI V JOHN HENRY SIMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellee,
v
No. 293968
Wayne Circuit Court
LC No. 09-8114-01
JOHN HENRY SIMS,
Defendant-Appellant.
Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ.
PER CURIAM.
In this second-degree murder case, defendant was found not guilty of second-degree
murder (MCL 750.317), and guilty of possession of a firearm during the commission of a felony
(felony-firearm) (MCL 750.227b). Defendant was sentenced to a mandatory 2 years in prison
and now appeals as of right. We affirm.
I. FACTS
On January 21, 2009, Yanique Gaines was engaging in sexual relations with defendant on
the couch in Gaines’ rented house, when the headlights of her ex-boyfriend Delano Thomas’s car
unexpectedly shone through the living room window. Defendant testified that Gaines told him
Delano Thomas would kill them and that there was a gun in the back room. He testified that the
house was dark and that he ran to the back bedroom and tried to open the window. He stated that
when he could not open the window, he grabbed a gun out of a box on the bed. When he turned
around, Thomas was charging at him, and he started shooting. Thomas was shot seven times and
died at the scene.
Because defendant claimed that he acted in self-defense, the trial court instructed the jury
on second-degree murder, self-defense, and felony firearm. Defense counsel indicated that he
had no objection to the instructions.
II. STANDARD OF REVIEW
Defendant argues that defense counsel’s various errors deprived him of the effective
assistance of counsel. Because defendant did not raise this issue in a motion for a new trial or
request for an evidentiary hearing in the trial court, our review is limited to mistakes apparent
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from the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994); see also
People v Ginther, 390 Mich 436, 442-444; 212 NW2d 922 (1973).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first contends that trial counsel was ineffective for failing to object when the
trial court (1) instructed the jury that its verdict on felony-firearm need not be consistent with its
verdict in the underlying felony, second-degree murder, and (2) failed to include a separate
instruction on self-defense for felony-firearm. We disagree.
To justify reversal under either the federal or state constitutions, a convicted defendant
must satisfy the two-part test articulated by the United States Supreme Court in Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People v Pickens, 446
Mich 298, 309, 521 NW2d 797 (1994). “First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made errors so serious that
counsel was not performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
466 US at 687. In so doing, the defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. Id. at 689. “Second, the defendant must show that
the deficient performance prejudiced the defense.” Id. at 687. To demonstrate prejudice, the
defendant must show the existence of a reasonable probability that, but for counsel’s error, the
result of the proceeding would have been different. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
The trial court gave the following instruction on self-defense:
The Defendant claims that he acted in lawful self-defense. A person has the right
to use force or even take a life to defend himself under certain circumstances. If a
person acts in lawful self-defense his actions are justified and he is not guilty of
murder second degree.
You should consider all the evidence and use the following rules to decide
whether the Defendant acted in lawful self-defense. Remember to judge
Defendant’s conduct according to how the circumstances appeared to him at the
time he acted.
First, at the time he acted the Defendant must have honestly and reasonably
believed that he was in danger of being killed and/or seriously injured. If his
belief was honest and reasonable he could act immediately to defend himself even
if it turned out later that he was wrong about how much danger he was in.
The failure to object to jury instructions waives the alleged error unless relief is necessary
to avoid manifest injustice. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737
(1993). This Court reviews jury instructions in their entirety to determine whether there is error
requiring reversal. People v Whitney, 228 Mich App 230, 252; 578 NW2d 329 (1998). “A jury
in a criminal case may reach different conclusions concerning an identical element of two
different offenses.” People v Goss (After Remand), 446 Mich 587, 597; 521 NW2d 312 (1994)
(emphasis in original).
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Defendant argues that the felony-firearm instruction as given authorizes a logically
inconsistent verdict. However, juries are not held to any rules of logic. For example, juries have
the power to acquit as a matter of leniency. People v Lewis, 415 Mich 443, 449; 330 NW2d 16
(1982). More specifically, a jury may decide to acquit a defendant of an underlying offense even
though it believes beyond a reasonable doubt that he was guilty of that offense. The jury may
decide instead to extend mercy by convicting defendant of only what the jury considered to be a
lesser offense. Id. at 451.
“Whenever a defendant is charged with different crimes that have identical elements, the
jury must make an independent evaluation of each element on each charge.” Goss, 446 Mich at
597. As stated, a criminal jury reach different conclusions regarding identical elements of two
different offenses. Id.; Lewis, 415 Mich at 449. In Lewis, the Supreme Court held that, although
the judge may and should instruct that a defendant cannot be convicted of felony-firearm unless
the jury finds that “he [committed] or [attempted] to commit a felony[,]” it may not instruct the
jury that it must convict of an underlying felony in order to convict of felony-firearm. Id. at 455
(alteration in original).
Here, the instruction only told the jury to consider the felony-firearm charge separately
from the second-degree murder charge. We find no error in this instruction. Nor do we
conclude that defendant was entitled to a separate instruction for self-defense for the felonyfirearm count. A person has the right to use force, even deadly force, under some circumstances.
CJI2d 7.15. In order to be entitled to an instruction on self-defense, the defendant must honestly
and reasonably believe that he was in danger, that the danger feared was death or serious bodily
harm, that the action taken appeared at the time to be immediately necessary, and that the
defendant was not the initial aggressor. People v Heflin, 434 Mich 482, 502-503; 456 NW2d 10
(1990).
The purpose of the felony-firearm statute is to reduce the possibility of injury to victims,
passersby, and police officers in the course of a felony. People v Elowe, 85 Mich App 744, 748749; 272 NW2d 596 (1978). It would frustrate the purpose of the felony-firearm statute to allow
an independent defense of self-defense. To the extent that defendant argues that the instruction
as given misled the jury into believing that it could not consider self-defense in deciding whether
defendant had committed second-degree murder as an element of felony-firearm, we disagree.
As stated, this Court must examine the charge as a whole, rather than piecemeal, to
determine if error exists. People v Bell, 209 Mich App 273, 276; 530 NW2d 167 (1995); People
v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). The instructions in this case could
reasonably be understood to require the jury to consider self-defense in the second-degree
murder count, both as a substantive offense and as an element of the felony-firearm count. We
are not convinced otherwise by the fact that defendant was acquitted of second-degree murder
but convicted of felony-firearm. A jury can reach inconsistent verdicts. Lewis, 415 Mich at 449.
While not a model of clarity, the instructions, as given, fairly presented the issues to be tried and
sufficiently protected defendant’s rights. Whitney, 228 Mich App at 252-253.
Defendant’s claims that he was denied effective assistance of counsel because defense
counsel failed to object to the jury charge on the grounds discussed above are without merit.
Because this we find no error in the jury charge, counsel was not ineffective on these grounds.
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Next, defendant argues that trial counsel was ineffective for failing to object to the
admission of the testimony of Officer Paul Pesmark about statements made by Tony Williams.
We disagree.
First, trial counsel did initially object to this testimony on hearsay grounds. This
objection was overruled by the trial court. However, defendant did not object at trial on
confrontation clause grounds. Thus, this argument is unpreserved and reviewed for plain error
affecting substantial rights. Reversal is ultimately warranted only if the error seriously affected
the fairness, integrity, or public reputation of the proceedings, or resulted in the conviction of an
innocent defendant. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
“The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’
statements of a witness who did not appear at trial, unless the witness was unavailable to testify
and the defendant had a prior opportunity to cross-examine the witness.” People v Walker (On
Remand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006), citing Crawford v Washington, 541
US 36, 59, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). A statement is testimonial “‘when the
circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.’” People v Spangler, 285 Mich App 136, 145; 774 NW2d 702 (2009),
quoting Davis v Washington, 547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224 (2006).
Nontestimonial statements, on the other hand, include those “made in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency[,]” and are not
constitutionally barred. Davis, 547 US at 822.
Here, defendant has failed to carry the burden of demonstrating that Williams’s
statements were testimonial and that the admission of the evidence affected the outcome of the
trial. From an objective view of the circumstances as they existed at that time, Williams’s
statements constituted nontestimonial statements made to assist the police in meeting the
ongoing emergency. The police were responding to a shooting, when they arrived, they
discovered a deceased victim and another victim that had sustained a gunshot wound. This
victim was in an excited state, and the police did not yet know what was transpiring. The record
does not indicate what questions, if any, the police asked Williams, and Williams did not reveal
the identity of the shooter. The record does not support that the police’s primary focus was
interrogating Williams in order to prove past events relevant to a criminal prosecution.
Nonetheless, any error in the admission of Williams’ statements was not outcome determinative.
Because there was no error in the admission of the evidence, defendant’s trial counsel did
not render ineffective assistance in failing to raise a Confrontation Clause objection, as counsel
was not required to advocate a meritless position. People v Snider, 239 Mich App 393, 425; 608
NW2d 502 (2000). And, even if an error occurred, defendant has not established that, had
defense counsel objected, the outcome of the proceedings would have been different. Pickens,
446 Mich at 312.
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Affirmed.
/s/ Donald S. Owens
/s/ William C. Whitbeck
/s/ Karen M. Fort Hood
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