PEOPLE OF MI V JOSEPH T HUEYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 7, 1998
Oakland Circuit Court
LC No. 93-127490-FC
JOSEPH T. HUEY,
Before: Saad, P.J., and Wahls and Gage, JJ.
The jury convicted defendant of first-degree premeditated murder, MCL 750.316; MSA
28.548, two counts of assault with intent to murder, MCL 750.83; MSA 28.178, three counts of
felony-firearm, MCL 750.227b(a); MSA 28.424(2), and carrying a concealed weapon, MCL
750.227; MSA 28.424. The court sentenced defendant to life imprisonment without parole for the
murder conviction, life imprisonment for each assault with intent to murder conviction, two years’
imprisonment for each felony-firearm conviction, and three to five years’ imprisonment for the CCW
conviction. Defendant now appeals as of right. We affirm.
On appeal, defendant first challenges the trial court’s recitation of the jury instructions pertaining
to voluntary manslaughter and first-degree murder. Defendant claims that he was deprived of his right
to have an adequately instructed jury decide the case when the trial court omitted two sentences from
the standard first-degree murder instruction, and one sentence from the voluntary manslaughter
instruction. We disagree.
Defendant did not object to the instructions when they were read to the jury. Therefore, this
issue was not preserved for appeal. People v Cousins, 139 Mich App 583, 592; 363 NW2d 285
(1984). Absent an objection below, this Court is only required to review alleged instructional error to
avoid manifest injustice. MCL 768.29; MSA 28.1052; People v VanDorsten, 441 Mich 540, 544
545; 494 NW2d 737 (1993). We find that the jury instructions were not improper and that the trial
court clearly and accurately informed the jury of the issues to be resolved. No error results from the
omission of an instruction if the instructions as a whole cover the substance of the omitted instruction.
People v Messenger, 221 Mich App 171, 177-178; 561 NW2d 463 (1997). Here, the information in
the omitted sentences was adequately covered by the rest of the instructions. Accordingly, defendant’s
rights were adequately protected and we find no manifest injustice.
Next, defendant argues that the prosecutor committed misconduct. Specifically, defendant
challenges a question posed to him on cross-examination concerning the credibility of a prosecution
witness. He also challenges a remark made by the prosecutor during his rebuttal argument. Defendant
failed to preserve this issue for appeal because he failed to object at trial. Appellate review of allegedly
improper remarks by the prosecutor is precluded if the defendant fails to timely and specifically object,
unless an objection would not have cured the error or a failure to review the issue would result in a
miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
Although we agree that the prosecutor’s question to defendant concerning another witness’
credibility, and the prosecutor’s subsequent reference to his answer, were improper, the prejudicial
effect of these remarks, if any, could have been cured by a timely instruction from the court.
Additionally, we fail to see how these isolated remarks harmed defendant. Accordingly, we find no
error requiring reversal. People v Buckey, 424 Mich 1, 16-18; 378 NW2d 432 (1985); Messenger,
supra at 180.
Defendant makes an additional prosecutorial misconduct claim, arguing that the prosecutor
improperly questioned him regarding his statement “I don’t remember what I did with the gun. I was
drunk.” Defendant points out that the trial court had previously ruled this statement inadmissible.
However, defendant fails to point out that the statement came in to rebut his testimony that he had not
been drinking that night. Contrary to defendant’s assertions, the trial court never ruled that the
statement was inadmissible for impeachment purposes. Indeed, defendant has never argued, at trial or
here, that the statement was actually inadmissible for impeachment purposes. Thus, this prosecutorial
misconduct claim is utterly without merit.
Next, defendant claims that he was denied the effective assistance of counsel because his
attorney failed to object to the jury instructions, and because his attorney failed to object to the
prosecutor’s questions and remarks discussed above. Defendant claims that these deficiencies deprived
him of his Sixth Amendment right to counsel as well as his right to a fair trial. We disagree.
Defendant did not move for an evidentiary hearing below pursuant to People v Ginther, 390
Mich 436; 212 NW2d 922 (1973). Therefore, this issue was not preserved for appeal. Absent an
evidentiary hearing, this Court will only review an ineffective assistance of counsel claim if the alleged
deficiencies in counsel’s performance are apparent from the record. People v Oswald (After
Remand), 188 Mich App 1, 13; 469 NW2d 306 (1991). Here, the record does not support
defendant’s claim that defense counsel was ineffective. The decisions whether to object to the
prosecutor’s remarks and the jury instructions were ones of trial strategy, which we will not second
guess. Moreover, even had his attorney erred, defendant has failed to show that counsel's errors were
so serious as to deprive him of a fair trial. See People v Johnson, 451 Mich 115, 121; 545 NW2d
637 (1996) (citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
Next, defendant argues that his right to be free from double jeopardy was violated when he was
convicted and sentenced on three counts of felony-firearm. Although defendant did not raise this issue
below, we will address it because it involves an important constitutional claim. People v Artman, 218
Mich App 236, 244; 553 NW2d 673 (1996).
In light of the Supreme Court’s decision in People v Morton, 423 Mich 650; 377 NW2d 798
(1985), defendant’s argument is without merit. There, the Court found a clear legislative intent that
“every felony committed by a person possessing a firearm result in a felony-firearm conviction.” Id. at
656. The Court held that multiple felony-firearm convictions arising out of the same transaction did not
violate double jeopardy. Id. at 655-656. Thus, defendant’s multiple felony-firearm convictions and
sentences do not violate double jeopardy. Moreover, defendant’s multiple felony-firearm sentences do
not increase his time of imprisonment because those sentences are to be served concurrently to one
another, and consecutively to the underlying felonies. See People v Sawyer, 410 Mich 531, 534-535;
302 NW2d 534 (1981).
Finally, defendant argues that there was insufficient evidence to convict him of first-degree
premeditated murder because the evidence presented at trial only established that, at most, defendant
was guilty of manslaughter. We disagree.
When reviewing a claim of insufficient evidence in a jury trial, this Court must view the evidence
in the light most favorable to the prosecution to determine whether a reasonable jury could find the
elements of the crime were proven beyond a reasonable doubt. People v Warren (After Remand),
200 Mich App 586, 588; 504 NW2d 907 (1993). In order to convict defendant of first-degree
murder, the prosecution had to prove beyond a reasonable doubt that defendant intentionally killed the
victim, and that the act of killing was willful, deliberate, and premeditated. MCL 750.316(1)(a); MSA
28.548(1)(a); People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). The elements
of premeditation and deliberation may be inferred from the circumstances surrounding the killing.
People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992).
Here, it was undisputed that defendant shot and killed one of the victims. Viewed in the light
most favorable to the prosecution, additional evidence showed that defendant became angry at the
victims as they were leaving a restaurant. After the victims left, defendant told a witness “I have
something in the car for them.” He then got in a car, chased down the victims, pulled out a gun, and
fired directly at them from only a few feet away. We have no doubt that this evidence was sufficient to
permit a reasonable jury to conclude that defendant was guilty of first-degree murder beyond a
/s/ Henry William Saad
/s/ Myron H. Wahls
/s/ Hilda R. Gage