PEOPLE OF MI V MARK DWAYNE COX
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 16, 2011
Plaintiff-Appellee,
v
No. 297532
Kalamazoo Circuit Court
LC No. 2009-001802-FC
MARK DWAYNE COX,
Defendant-Appellant.
Before: SAWYER, P.J., and WHITBECK and OWENS, JJ.
PER CURIAM.
Defendant was convicted of first-degree felony murder, MCL 750.316; unlawful
imprisonment, MCL 750.349b; unlawfully driving away an automobile, MCL 750.413; and three
counts of stealing or retaining a financial-transaction device without consent, MCL 750.157n.
Defendant was sentenced to life without parole for first-degree felony murder, 15-50 years for
unlawful imprisonment, 3-15 years for unlawfully driving away an automobile, and 30 months to
15 years on each count of stealing or retaining a financial-transaction device without consent.
Defendant now appeals. We affirm.
I
Police found the victim deceased in her apartment, partially wrapped in a blanket or
sheet, bound, and gagged. Police found defendant Mark Cox’s fingerprints on the victim’s
bedroom door. After obtaining security-camera video from a business where the victim’s stolen
ATM card was used, the police found defendant inside the victim’s automobile in Detroit, where
they arrested him. Defendant made a full confession. According to defendant’s confession, he
went into the victim’s apartment with the intent to rob her; defendant bound and gagged the
victim before leaving to use her ATM card, but when he returned later, the victim was dead.
II
Defendant contends that he was denied effective assistance of counsel when his trial
counsel failed to request an involuntary-manslaughter instruction. We disagree.
Whether a person has been denied effective assistance of counsel is a mixed question of
fact and law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial court’s
findings of fact should be reviewed for clear error and questions of law should be reviewed de
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novo. Id. To show ineffective assistance of counsel, defendant must show that counsel’s errors
were so serious that defendant was deprived of a fair trial and that the trial itself was seriously
prejudiced. Id. at 578. An appellate court must review under a strong presumption that trial
counsel’s conduct was sound trial strategy. Id. An appellate court should not substitute its
judgment for trial counsel’s nor should it review trial counsel’s decisions with the benefit of
hindsight. People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
While trial counsel’s strategy did not work, defendant’s trial counsel did have a thoughtout strategy. That strategy was to focus on the accident defense because she was concerned that
arguing involuntary manslaughter would be too close to what the prosecutor was arguing
regarding the mens rea for murder. That is, such an argument might have served to support the
prosecutor’s malice argument. This Court will not substitute its judgment for trial counsel’s
based on the fact that the strategy did not work. Matuszak, 263 Mich App at 58.
III
Plaintiff next contends that he received ineffective assistance of counsel when his trial
counsel failed to object to or clarify the different uses of accident throughout trial. We disagree.
If an issue is not preserved at trial, an appellate court should review for plain error that
substantially affects the rights of defendant. People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999). To show plain error, defendant must show an error that substantially affected the
fairness or integrity of the proceeding. Id. Whether a person has been denied effective assistance
of counsel is a mixed question of fact and law. LeBlanc, 465 Mich at 579. A trial court’s findings
of fact should be reviewed for clear error and questions of law should be reviewed de novo. Id.
Defendant did not request a cautionary instruction at trial, so this issue has not been
preserved and will be reviewed for plain error. Defendant contends that, without a jury
instruction, the jury may have been confused over the use of an accident defense and “accident”
as that term was used by the pathologist regarding manner of death. When looking at jury
instructions, an appellate court “reviews the instructions as a whole, and, even if there are some
imperfections, there is no basis for reversal if the instructions adequately protected the
defendant’s rights by fairly presenting to the jury the issues to be tried.” People v Dumas, 454
Mich 390, 396; 563 NW2d 31 (1997).
Defendant alleges no proof or facts of prejudice. Furthermore, defendant shows no
evidence that the jury was actually confused by the different meanings. Because defendant only
points to a chance that the jury was confused and no proof, defendant has failed to establish that
the judge’s not instructing the jury about the usage of accident was a plain error that substantially
affected the fairness of the proceeding.
Furthermore, defendant’s trial counsel saw a chance for confusion between the accident
defense and the pathologist’s use of accident. Therefore, she questioned the pathologist until he
defined “accident” more as it pertained to his field. The trial judge concluded that this was
sufficient to clear up any confusion. Beyond that, there was no evidence that the jury was
actually confused on this issue.
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IV
Defendant also argues that the trial court erred in failing to instruct the jury that the
prosecutor had the burden of proving beyond a reasonable doubt the inapplicability of the
accident defense. We disagree.
Jury instructions are reviewed de novo to determine whether, taken as a whole, they are
sufficient to protect defendant’s rights. People v Moldenhauer, 210 Mich App 158, 159; 533
NW2d 9 (1995). When looking at jury instructions, an appellate court “reviews the instructions
as a whole, and, even if there are some imperfections, there is no basis for reversal if the
instructions adequately protected the defendant’s rights by fairly presenting to the jury the issues
to be tried.” Dumas, 454 Mich at 396.
The jury instructions indicated that the prosecution must prove every element of the
charge beyond a reasonable doubt. Furthermore, the instructions indicated that the defendant was
not required to prove his innocence or to do anything. Then, in discussing the felony-murder
charge, the trial judge specifically stated that an element of the crime was that defendant
intended to kill or intended to do great bodily harm. While the jury instruction may have not
specifically indicated that the prosecution must specifically disprove defendant’s accident
defense, the accident defense was defendant’s attempt to show that he did not intend to hurt the
victim. Because the jury instruction indicated that the prosecution must prove intent beyond a
reasonable doubt, defendant has failed to show that the jury instruction was insufficient to
protect his rights.
Affirmed.
/s/ David H. Sawyer
/s/ William C. Whitbeck
/s/ Donald S. Owens
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