PEOPLE OF MI V LOUIS MATTHEWS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 12, 2011
Plaintiff-Appellee,
v
No. 295307
Wayne Circuit Court
LC No. 09-011725-FC
LOUIS MATTHEWS,
Defendant-Appellant.
Before: FORT HOOD, P.J., and TALBOT and MURRAY, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of second-degree murder, MCL 750.317,
felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, second offense, MCL 720.227b(1). He was sentenced to 60 to 100
years’ imprisonment for the second-degree murder conviction, 2 to 5 years’ imprisonment for the
felon in possession conviction, and 5 years’ imprisonment for the felony-firearm conviction.
Defendant appeals as of right, and we affirm.
First, defendant asserts there was insufficient evidence to support the second-degree
murder conviction. We disagree. A challenge to the sufficiency of the evidence is reviewed de
novo. People v Martin, 271 Mich App 280, 340; 721 NW2d 815 (2006). When reviewing a
claim of insufficient evidence, this Court reviews the record in a light most favorable to the
prosecution to determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt. People v Phelps, 288 Mich App 123, 131132; 791 NW2d 732 (2010). The elements of the crime may be proven by circumstantial
evidence and reasonable inferences arising from the evidence. People v Railer, 288 Mich App
213, 217; 792 NW2d 776 (2010). 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 in support of
the jury verdict. Id. When assessing a challenge to the sufficiency of the evidence, the trier of
fact, not the appellate court, determines what inferences may be fairly drawn from the evidence
and the weight to be accorded those inferences. People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). 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).
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To establish the crime of second-degree murder, the prosecution must prove: (1) a death;
(2) it was caused by an act of the defendant; (3) it was committed with malice; and (4) there was
no justification or excuse. People v Maynor, 256 Mich App 238, 244; 662 NW2d 468 (2003).
Malice is defined as “the intent to kill, the intent to cause great bodily harm, or the intent to do an
act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is
to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579 NW2d 868
(1998). Malice may be inferred from the use of a weapon, and it may be inferred from
circumstantial evidence. People v Roper, 286 Mich App 77, 85-86; 777 NW2d 483 (2009).
Defendant asserts that there was insufficient evidence to convict because there was no
“direct evidence” of his presence at the murder scene or that he physically participated in the
murder. Indeed, defendant’s murder conviction was premised on the introduction of
circumstantial evidence and reasonable inferences arising from the evidence. In the present case,
the victim’s family members testified that the victim was operating a recording studio in his
basement. The victim had $400 in his possession and pawned jewelry to obtain an additional
$200. The victim was planning to make a major purchase on Thursday. On Wednesday, family
members were unable to contact the victim. On Wednesday morning, defendant dropped his
girlfriend off at work at 6:30 a.m. so he could use her vehicle, and she testified that he picked her
up late at 2:50 p.m. that day. She testified that defendant, to her knowledge, did not have money
earlier in the day, but when he picked her up, he repaid her $60 dollars that he had borrowed and
had additional money despite paying that debt. The girlfriend also noticed that a black barrel
gun was on the floor, and she told defendant, a parolee, that he could not drive in her car with a
gun. Defendant said that he would get rid of the gun.
Defendant’s girlfriend testified that defendant was arrested by Highland Park police on
Wednesday evening. The police told her to retrieve her vehicle, a Monte Carlo, or be charged
impound fees. When she picked up the vehicle, there were two mink coats in her back seat, but
the gun was missing. The mink coats were not in her vehicle when defendant picked her up from
work.
On Wednesday, the victim’s neighbor pulled into his own driveway. He was getting
groceries out of his car when he observed a man pass by with an intimidating look on his face.
The man entered an older model Monte Carlo and sped off. Early the next day, the neighbor
noticed that the victim’s front door was cracked open despite the fact that it was cold. When he
returned home that evening, another neighbor pointed out that the door was still cracked open.
Neighbors went to the front door and observed a body lying on the floor. Police officers testified
that the body had been dead for at least 24 hours in light of the dried blood that had seeped
through the floor to the basement.
Defendant did not account for his whereabouts the entire day of the murder. An FBI
agent concluded that cellular phone records and towers indicated that defendant was in the
vicinity of the murder on two occasions during the day. Additionally, family members testified
that the two mink coats that the victim owned were missing from his home. A hood to one of the
mink coats was found near the front door.
Defendant’s girlfriend testified that defendant denied any involvement in the killing of
the victim, his nephew. However later, he admitted to seeing the victim on the day of the
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murder. Additionally, defendant instructed his girlfriend to discard the two mink coats that she
found in her vehicle, and she placed them in a dumpster. She identified a photograph of one of
the two mink coats that belonged to the victim. Family members testified that defendant spoke
of “hitting a lick” even if a family member was the intended target of the robbery or theft.
Defendant also asked family members to assist him in obtaining a gun. Finally, family members
testified that there was discord between defendant and the victim regarding defendant’s son.
In the present case, there was sufficient circumstantial evidence and reasonable
inferences to support the second-degree murder conviction. Defendant had made statements
regarding his intent to rob an individual to obtain money even if a family member was the
intended target and his attempt to obtain a gun. There was circumstantial evidence that the
victim was earning income from his basement recording studio. Defendant was in the vicinity of
the murder and was later seen with a gun and two mink coats that purportedly belonged to the
victim. Once arrested, defendant asked his girlfriend to discard the two mink coats allegedly
because he would be incarcerated for two years, but to keep his clothes. Defendant later made
admissions to his girlfriend that he saw the victim on the day of the murder despite earlier
denials. In light of the above, there was sufficient circumstantial evidence to support the
convictions. Railer, 288 Mich App at 217.
Next, defendant contends that he was deprived of the effective assistance of counsel
because of the failure to call and fully cross-examine witnesses. We disagree. Trial counsel’s
decisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy. People v Davis, 250 Mich App 357, 368; 649 NW2d 94
(2002). This Court does not substitute its judgment for that of counsel addressing matters of trial
strategy. Id. Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving the factual predicate for his claim of ineffective assistance of counsel. People
v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999); People v Plummer, 229 Mich App 293, 308; 581
NW2d 753 (1998).
On appeal, defendant contends that trial counsel was ineffective for failing to call the
victim’s neighbor who established a “perfect alibi” for defendant. The neighbor gave a
statement to police indicating that she heard a “pow or bang” sound at 3:30 a.m. on November
20, 2008. Additionally, the neighbor indicated that she saw someone bang on the victim’s door
between 4:00 and 8:00 p.m. the day before. The victim’s friend gave a statement indicating that
he knocked on the door the day that the victim was found, but there was no answer. These
statements do not establish the factual predicate for a claim of ineffective assistance. A review
of the record reveals that the victim was shot three times in the head. A neighbor’s statement
that she heard a singular sound earlier that morning does not provide defendant with a perfect
alibi. A review of the record reveals that trial counsel was aware of the statements that witnesses
would provide at trial and was well aware of earlier statements given to police and at the
preliminary examination because he impeached the witnesses at trial. On this record, defendant
failed to meet the factual predicate for establishing his claim. Hoag, 460 Mich at 6.
Lastly, defendant alleges that the prosecutor’s statements during rebuttal were improper
and denigrating and warrant a new trial. We disagree. When there is no objection and no
request for a curative instruction in response to the prosecutor’s conduct during trial, appellate
review is limited to ascertaining whether there was plain error that affected substantial rights.
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People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). A prosecutor may not suggest
that defense counsel is intentionally misleading the jury, but is free to argue the evidence and to
respond to arguments made by defense counsel. People v Unger, 278 Mich App 210, 236-237;
749 NW2d 272 (2008); People v Jones, 468 Mich 345, 353-354; 662 NW2d 376 (2003). In the
present case, defendant has failed to demonstrate plain error affecting substantial rights. Rather,
a review of the prosecutor’s rebuttal argument reveals that it was responding to arguments made
by defense counsel. Further, the trial court instructed the jurors that the statements of counsel
did not constitute evidence, and jurors are presumed to follow the instructions. People v Parker,
288 Mich App 500, 512; ___ NW2d ___ (2010).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Michael J. Talbot
/s/ Christopher M. Murray
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