PEOPLE OF MI V JAMES DOMNICK-DOUGLAS PIERSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 25, 2008
Plaintiff-Appellee,
v
No. 279653
Kent Circuit Court
LC No. 06-002346-FC
JAMES DOMNICK-DOUGLAS PIERSON,
Defendant-Appellant.
Before: Hoekstra, P.J., and Whitbeck and Talbot, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317,
and possession of a firearm during the commission of a felony, MCL 750.227b.1 The trial court
sentenced defendant as an habitual offender, fourth offense, MCL 769.12, to consecutive
sentences of 27 to 50 years’ imprisonment for the second-degree murder conviction and two
years’ imprisonment for the felony-firearm conviction. Because we conclude that the trial court
did not err in denying defendant’s motion for a directed verdict, in excluding Steven Chevis’s
out-of-court statement, in failing to instruct the jury on imperfect self-defense and voluntary
manslaughter, or in sentencing defendant based on facts not found by the jury, and because
defendant was not denied the effective assistance of counsel, we affirm.
I
Defendant first claims that the trial erred in denying his motion for a directed verdict
because the prosecution failed to provide sufficient evidence of malice aforethought and failed to
provide sufficient proof to exclude a claim of imperfect self-defense. We disagree. “When
reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews the record
de novo to determine whether the evidence presented by the prosecutor, viewed in the light most
favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of
the crime charged were proved beyond a reasonable doubt.” People v Aldrich, 246 Mich App
101, 122; 631 NW2d 67 (2001).
1
Defendant was acquitted of felony murder, MCL 750.316(1)(b), and his conviction for
conspiracy to commit second-degree murder, MCL 750.157a, was vacated by the trial court.
-1-
The elements of second-degree murder are “(1) death, (2) caused by defendant's act, (3)
with malice, and (4) without justification.” People v Mendoza, 468 Mich 527, 534; 664 NW2d
685 (2003). Defendant only argues that the prosecution failed to provide sufficient evidence of
malice. Malice is “the intent to kill, the intent to cause great bodily harm, or the intent to do an
act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is
to cause death or great bodily harm.” People v Goecke, 460 Mich 750, 758; 597 NW2d 130
(1999). Malice may be inferred from evidence that the defendant intentionally set in motion a
force likely to cause death or great bodily harm, and it also may be inferred from the use of a
deadly weapon. Id. at 759.
Defendant was charged with second-degree murder on an aiding and abetting theory.
“The requisite intent for conviction of a crime as an aider and abettor is that necessary to be
convicted of the crime as a principal.” People v Mass, 464 Mich 615, 628; 628 NW2d 540
(2001) (quotation marks and citation omitted). An aider and abettor’s state of mind may be
inferred from the facts and circumstances, including a close association between the defendant
and the principal, the defendant’s participation in the planning or execution of the crime, and
evidence of flight after the crime. People v Carines, 460 Mich 750, 757-758; 597 NW2d 130
(1999).
The prosecution presented evidence that defendant specifically told Daniel Frazier and
Andy Tramper to lead him to the house of Gordie Dawson, the victim. After arriving at
Dawson’s house, defendant angrily made his way into the house with a gun and confronted
Dawson about a food stamp card that Dawson had traded for drugs. Defendant threatened to kill
Dawson and everyone in the house if Dawson did not pay him. After Stephen Chevis walked
into Dawson’s house, defendant, who had received some of the money, gave Chevis the gun and
said, “If anybody tries anything, shoot ‘em.” The prosecution also presented evidence that
defendant later ordered Chevis to shoot Dawson. After defendant hit Dawson with a crutch and
Dawson retaliated, defendant yelled, “Blast him, blast him.” Chevis shot Dawson in the head.
This evidence, when viewed in a light most favorable to the prosecution, could persuade a
rational trier of fact that defendant had the intent to kill, the intent to cause great bodily harm, or
the intent to do an act in wanton and wilful disregard of the likelihood of cause death or great
bodily harm. Goecke, supra; Aldrich, supra at 101.
Defendant also argues that there was insufficient proof to exclude a claim of imperfect
self-defense. However, when defendant moved for a directed verdict, he never claimed that he
was entitled to a directed verdict on the basis that the prosecutor presented insufficient evidence
to exclude the possibility that he acted in self-defense. Moreover, defendant never presented a
theory of imperfect self-defense at trial. While there may have been evidence to support a claim
of imperfect self-defense, it would have been inappropriate for the trial court to grant defendant a
directed verdict based on a theory that was never advanced. See People v Posey, 459 Mich 960;
590 NW2d 577 (1999) (the defendant was not entitled to a jury instruction on imperfect selfdefense when the defendant never advanced the theory at trial). Defendant was not entitled to a
directed verdict on the second-degree murder charge.
-2-
II
Defendant next claims that he received ineffective assistance of counsel. Because
defendant did not move for a new trial or a Ginther2 hearing, our review of defendant’s claim is
limited to mistakes apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650
NW2d 96 (2002). To prevail on his claim, defendant must show that defense counsel’s
performance fell below an objective standard of reasonableness and was so prejudicial that he
was denied a fair trial. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). He must
overcome the strong presumption that counsel’s actions constituted sound trial strategy. People
v Unger, 278 Mich 210, 242; 749 NW2d 272 (2008).
First, defendant contends that counsel’s performance was deficient when, before trial, he
failed to discover the notes and photographs relating to Tramper’s photographic identification of
him. The notes revealed that Tramper was only 70 percent sure of the identification. Defense
counsel may be found to have rendered ineffective assistance when unprepared for trial. People
v Caballero, 184 Mich App 636, 640; 459 NW2d 80 (1990). However, to succeed on such a
claim, a defendant must demonstrate “that his counsel’s failure to prepare for trial resulted in
counsel’s ignorance of, and hence failure to present, valuable evidence that would have
substantially benefited” his case. People v Bass (On Rehearing), 223 Mich App 241, 253; 581
NW2d 1 (1997), vacated in part on other grounds 457 Mich 866 (1998). Defendant has failed to
demonstrate that counsel’s failure to discover the information regarding Tramper’s photographic
identification of defendant before trial resulted in an absence of evidence that would have been
valuable to his case. Counsel was permitted to speak with Tramper before Tramper testified, and
during cross-examination of Tramper, counsel questioned Tramper about the photographic
lineup and his identification of defendant. Moreover, defendant has not identified any evidence
beneficial to his case that counsel would have discovered had counsel known of Tramper’s
identification of defendant.
Second, defendant claims that counsel was ineffective for conceding the “intent to kill”
element during closing arguments. During closing arguments, defense counsel, when explaining
the elements of first-degree murder, asked, “Does anybody suggest that someone didn’t intend to
kill Gordon Dawson?” Defense counsel then said, “Well, clearly that’s true.” A concession can
render defense counsel’s performance ineffective; however, “it is only a complete concession of
defendant’s guilt which constitutes ineffective assistance of counsel.” People v Krysztopaniec,
170 Mich App 588, 596; 429 NW2d 828 (1988). Counsel’s statement was consistent with the
defense theory of the case, which was that defendant was innocent of killing Dawson. Defendant
testified that he was involved in a fight with Dawson when Chevis came in and shot Dawson
three times. Defendant further testified that he did not have a gun when he walked into
Dawson’s house and that he did not order Chevis to shoot Dawson. Accordingly, counsel’s
statement that whoever killed Dawson intended to kill him was not any concession, much less a
complete concession, of defendant’s guilt. Counsel’s decisions about which theories to argue at
trial are matters of trial strategy that this Court will not second-guess. People v Julian, 171 Mich
App 153, 157; 429 NW2d 615 (1988).
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-3-
Third, defendant argues that defense counsel was ineffective for failing to request jury
instructions on imperfect self-defense and voluntary manslaughter. “Imperfect self-defense is a
qualified defense that can mitigate second-degree murder to voluntary manslaughter.” People v
Butler, 193 Mich App 63, 67; 483 NW2d 430 (1992).3 Counsel’s decision to request or refrain
from requesting a lesser offense instruction is typically a matter of trial strategy. People v
Robinson, 154 Mich App 92, 93; 397 NW2d 229 (1986). Here, instructions on imperfect selfdefense and voluntary manslaughter would have been contrary to defendant’s theory at trial,
which, as stated supra, was that defendant was innocent of killing Dawson. Defendant was not
attempting to excuse any criminal conduct. Defendant testified that he did not know that Chevis
had a gun and that he did not order Chevis to shoot Dawson. “The fact that the strategy chosen
by defense counsel did not work does not constitute ineffective assistance of counsel.” People v
Williams, 240 Mich App 316, 332; 614 NW2d 647 (2000). Defendant was not denied the
effective assistance of counsel.
III
Defendant also argues that the trial court erred in excluding Chevis’s out-of-court
statement, made to Starla Pierson, defendant’s sister, that he shot Gordon because Gordon was
beating up defendant. We disagree.
A trial court’s ultimate decision to admit or exclude evidence under MRE 804(b)(3) is
reviewed for an abuse of discretion. People v Barrera, 451 Mich 261, 268; 547 NW2d 280
(1996). A statement is admissible under MRE 804(b)(3), if (1) the declarant is unavailable, (2)
the statement was against penal interest, (3) a reasonable person in the declarant’s position would
have believed the statement to be true, and (4) corroborating circumstances indicated the
trustworthiness of the statement. Id. The determination whether a statement was against the
declarant’s penal interest is a question of law reviewed de novo. Id. A statement is against a
declarant’s penal interest if the statement “so far tended” to subject the declarant to criminal
liability. MRE 804(b)(3). This means that the statement must be probative of an element of a
crime in a trial against the declarant, and a reasonable person in the declarant’s position would
have realized the statement’s incriminating element. Barrera, supra at 272.
After it called Starla as a witness, but before direct examination, the prosecution asked
the trial court to prevent defense counsel from questioning Starla about statements Chevis made
to her. Defense counsel informed the trial court that Chevis told Starla that he shot Dawson
because Dawson was beating up defendant. Before deciding whether Chevis’s statement
qualified as a statement against penal interest, the trial court had Starla testify outside the
presence of the jury. Starla testified that Chevis told her that he shot Dawson after seeing
defendant on the ground being beaten by Dawson. Sharla further testified that, when she asked
Chevis why he shot Dawson more than once, Chevis answered that he could not beat up Dawson.
The trial court ruled that Chevis’s out-of-court statement was not admissible under MRE
3
Our Supreme Court has not recognized the doctrine of imperfect self-defense. Posey, supra at
960. However, “panels of this Court have recognized the doctrine.” People v Kemp, 202 Mich
App 318, 323; 508 NW2d 184 (1993).
-4-
804(b)(3) because the statement offered a defense for the shooting, thereby “reduc[ing] the
whole idea of it being a statement against interest.”
Self-defense, which includes the right to defend another, is a complete defense to an
otherwise intentional homicide. Riddle, supra at 126; People v Kurr, 253 Mich App 317, 321;
654 NW2d 651 (2002). By stating that he shot Dawson because Dawson was beating up
defendant, Chevis’s statement to Starla was his attempt to explain that the shooting was
necessary for Dawson’s protection. As such, the statement did not tend to subject Chevis to
criminal liability, but instead raised the complete defense of defense of others. Accordingly, the
statement is not against Chevis’s penal interest. See United States v Shryock, 342 F3d 948, 981
(CA 9, 2003) (the declarant’s statement that he shot the victim in self-defense was not against his
penal interest). Because Chevis’s statement was not against his penal interest, the trial court did
not abuse its discretion in excluding the statement.4
IV
Defendant next argues that the trial court erred in failing to give an imperfect self-defense
instruction. However, defendant failed to object to the jury instructions and indicated approval
of the instructions as given. Therefore, the issue is waived. People v Matuszak, 263 Mich App
42, 57; 687 NW2d 342 (2004). Regardless, defendant was not entitled to such an instruction
because he had not advanced an imperfect self-defense theory at trial. Posey, supra.
V
Defendant finally claims that, pursuant to Blakely v Washington, 542 US 296; 124 S Ct
2531; 159 L Ed 2d 403 (2004), he was denied his Sixth Amendment, US Const, Am VI, right to
a jury trial and Fourteenth Amendment, US Const, Am XIV, right to due process because the
trial court enhanced his sentence based on facts not found by a jury beyond a reasonable doubt.
However, our Supreme Court has determined that Blakely is inapplicable to Michigan’s
indeterminate sentencing scheme, in which a trial court sets a minimum sentence but can never
exceed the statutory maximum sentence. People v Drohan, 475 Mich 140, 160-164; 715 NW2d
778 (2006). Accordingly, “[a]s long as the defendant receives a sentence within that statutory
maximum, a trial court may utilize judicially ascertained facts to fashion a sentence within the
range authorized by the jury's verdict.” Id. at 160. Defendant's assertion that his sentence was
improperly enhanced in violation of his constitutional rights is without merit.
4
We reject defendant’s assertion that the exclusion of Chevis’s statement violated his
constitutional right to present a defense. A rule of evidence does not violate a defendant’s right
to present a defense as long as the rule is not “arbitrary” or “disproportionate to the purposes
they are designed to serve.” Unger, supra at 250 (quotation marks and citations omitted).
Defendant has made no argument that MRE 803(b)(4) is arbitrary or disproportionate to the
purposes it is designed to serve.
-5-
Affirmed.
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
/s/ Michael J. Talbot
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
