PEOPLE OF MI V JOHLANIS CORTEZ ERVIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 23, 2007
Plaintiff-Appellee,
v
No. 268199
Berrien Circuit Court
LC No. 2002-404013-FC
JOHLANIS CORTEZ ERVIN,
Defendant-Appellant.
Before: Bandstra, P.J., and Cavanagh and Jansen, JJ.
PER CURIAM.
Defendant was convicted of second-degree murder, MCL 750.317, and sentenced to 24 to
60 years’ imprisonment. He appeals as of right. We affirm.
This case arises from the July 11, 2002 shooting death of Rick Jackson at 871 Pavone, in
the City of Benton Harbor. Defendant does not dispute that he fired the shot that killed Jackson,
but contends that he lacked the requisite intent for second-degree murder, testifying that he only
meant to scare a group of people, including individuals that had earlier threatened defendant’s
brother, that were gathered on the front porch at that address.
Defendant was first convicted of second-degree murder and possession of a firearm
during the commission of a felony, MCL 750.227b, in April 2003. However, this Court reversed
defendant’s second-degree murder conviction because of instructional error, and remanded for
entry of a conviction of involuntary manslaughter and resentencing, or for retrial at the discretion
of the prosecutor. People v Ervin, unpublished opinion per curiam of the Court of Appeals,
issued September 14, 2004 (Docket No. 249826). On remand, the prosecutor elected to retry
defendant and, following a second jury trial, defendant was again convicted of second-degree
murder.
Defendant asserts that he received ineffective assistance of counsel at his second trial.
We disagree. Defendant raised this issue in motions for a new trial and an evidentiary hearing
pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). And, in denying the
motions, the trial court ruled on the issue. However, because no evidentiary hearing was held,
our review is limited to errors apparent on the record. People v Williams, 223 Mich App 409,
414; 566 NW2d 649 (1997).
To establish ineffective assistance of counsel, defendant must show that defense
counsel’s performance was so deficient that it fell below an objective standard of reasonableness
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and that the representation prejudiced the defendant to the extent that it denied him a fair trial.
People v Henry, 239 Mich App 140, 145-146; 607 NW2d 767 (1999). To demonstrate prejudice,
defendant must show that there is a reasonable probability that, but for counsel’s error, the result
of the proceedings would have been different. Id. at 146. Effective assistance of counsel is
presumed and defendant must overcome “a strong presumption that counsel’s assistance
constituted sound trial strategy.” Id.
Defendant contends that his trial counsel was ineffective for failing to effectively crossexamine ten prosecution witnesses who testified differently at his second trial than they did at his
first. Defense counsel’s failure to cross-examine witnesses only constitutes ineffective assistance
of counsel if it deprived defendant of a substantial defense. People v Dixon, 263 Mich App 393,
398; 688 NW2d 308 (2004); People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793
(1990). A substantial defense is one that might have made a difference in the outcome of the
trial. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). Decisions about what
evidence to present, whether to question a witness, and which questions to ask a witness are
presumed to be matters of trial strategy. Dixon, supra at 398. “[T]his 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).
We find that defense counsel was not ineffective for failing to cross-examine the
witnesses about the alleged inconsistencies in their testimony. In reaching our conclusion, we
note that there was no dispute that defendant fired the bullet that killed Jackson. The primary
issue for the jury was defendant’s intent. Almost all of the alleged testimonial inconsistencies
highlighted by defendant on appeal either are completely unrelated to this issue or do not present
actual inconsistencies, but rather merely different degrees of specificity or detail. Counsel
cannot be deemed ineffective for failing to emphasize irrelevant or non-existent inconsistencies
to the jury. Dixon, supra at 398; People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005)
(stating that counsel is not required to advocate a meritless position). Additionally, among those
witnesses whose testimony can be seen as inconsistent on matters unrelated to defendant’s intent,
drawing the jury’s attention to some of these inconsistencies would have generated sympathy for
the victim or undermined defendant’s theory of accident. Therefore, defendant cannot establish
that counsel’s failure to cross-examine the witnesses about those particular inconsistencies was
anything but sound trial strategy. Dixon, supra at 398.
The only purported inconsistency highlighted by defendant that is arguably related to the
issue of his intent relates to medical examiner Robert Clark’s testimony concerning whether the
nature of the wound suffered by Jackson indicated that the bullet ricocheted before striking him.
At defendant’s first trial, Clark testified that, given the shape of the Jackson’s entrance wound,
the bullet that killed Jackson “most certainly” could have ricocheted before hitting him. At the
second trial, Clark testified that the bullet that stuck Jackson was a “glancing blow” and did not
strike Jackson “straight in,” and that while it was possible that the bullet had ricocheted, he had
no way of knowing whether the bullet hit another surface before it struck Jackson and therefore,
he had “nothing to say about it.” The possibility that the bullet ricocheted before hitting Jackson
was relevant to the issue of defendant’s intent when firing the gun; if the bullet ricocheted, that
could be viewed as supporting defendant’s assertion that he did not shoot directly at the people
on the porch at 871 Pavone. While defense counsel did not specifically cross-examine Clark
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about this difference in his testimony, counsel did elicit testimony from Clark acknowledging the
possibility of a ricochet, placing the issue squarely before the jury. Decisions about what
questions to ask a witness are presumed to be matters of trial strategy. Dixon, supra at 398.
Moreover, given that Clark acknowledged the possibility of a ricochet, and in light of evidence
presented indicating that defendant fired in the direction of the porch at 871 Pavone and not into
the ceiling at 877 Pavone as he claimed, defendant cannot establish that counsel’s failure to point
out the inconsistency in Clark’s testimony was outcome-determinative. Henry, supra at 146;
Kelly, supra at 526.
Defendant also contends that his trial counsel was inadequately prepared for trial and
failed to present a defense. We disagree. When claiming ineffective assistance of counsel due to
counsel’s unpreparedness, the defendant must show prejudice resulting from the lack of
preparation. People v Caballero, 184 Mich App 636, 640, 642; 459 NW2d 80 (1990). The day
before defendant’s trial commenced, counsel informed the trial court that he was “ready to try
the case.” He stated that, in preparation for trial, he reviewed the transcripts of defendant’s first
trial, the pertinent police reports, and the prosecution’s evidence and exhibits. Further, the
record indicates that counsel did, in fact, request the transcripts of defendant’s preliminary
examination and copies of police reports a month before trial. The record does not support that
defense counsel was unprepared. Moreover, we find no merit to the claim that counsel failed to
present a defense at trial. Counsel focused the jury’s attention on defendant’s claim of accident
and defendant has failed to suggest another plausible defense which counsel could have
presented. Therefore, we cannot conclude that defendant was prejudiced by defense counsel’s
performance. See id. Defendant has failed to overcome the presumption of effective assistance
of counsel.
We affirm.
/s/ Richard A. Bandstra
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
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