People of Michigan v. Deonte Kinwan McCoy

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

October 1, 2019

Plaintiff-Appellee,

v No. 342015

Lapeer Circuit Court

DEONTE KINWAN MCCOY, LC No. 16-012682-FC

Defendant-Appellant.

Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.

PER CURIAM.

Defendant, Deonte Kinwan McCoy, appeals as of right his convictions and sentences,

following a jury trial, of two counts of assault with intent to commit murder, MCL 750.83, felon

in possession of a firearm, MCL 750.224f, possession of less than 25 grams of cocaine, MCL

333.7403(2)(a)(v), and two counts of possession of a firearm during the commission of a felony

(felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense

habitual offender, MCL 769.12, to prison terms of 25 to 40 years for each assault with intent to

commit murder conviction, 5 to 25 years for the felon-in-possession conviction, and 2 to 15

years for the possession of cocaine conviction, to be served concurrently, but consecutive to

concurrent two-year terms of imprisonment for the felony-firearm convictions. We affirm.

Defendant’s convictions arise from a shooting incident on the night of July 1-2, 2016, in

Lapeer County. Earlier that day, defendant went to the home of John Bucy, whom defendant had

known for several years, to collect money for cocaine that defendant had previously sold to Bucy

and a coworker. When defendant discovered that Bucy’s coworker was not present to pay his

share of the debt, he became upset and produced a .38 caliber pistol. Bucy and Brent Kozar, who

was also present, eventually gave defendant the money he was owed. Defendant calmed down

and apologized for his behavior. The group decided to go to Kozar’s house to socialize and light

fireworks, but Kozar insisted that defendant take his gun to his grandmother’s house and leave it

there because there would be children at Kozar’s house. Kozar drove defendant to Flint to drop

off his gun. On the way to Kozar’s house, they picked up defendant’s father, and then Kozar and

defendant consumed beer and cocaine while with defendant’s father.

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While at Kozar’s house, defendant and Lori Strength went to an upstairs bedroom, at

which time Strength saw a small handgun fall out of defendant’s shorts. Later that night,

defendant, Bucy, Kozar, and defendant’s father all consumed cocaine supplied by defendant in

the master bedroom. At one point, Bucy left to use the bathroom. As Bucy was exiting the

bathroom, defendant called out Bucy’s name and fired a gun at him. Bucy was shot in the chest

and shoulder. Defendant also fired two shots at Kozar, but Kozar ducked and ran, and the shots

narrowly missed his head. Defendant and his father then ran out of the bedroom and left the

house. The police arrested defendant shortly thereafter; he was soaking wet and had emerged

from a nearby ditch. Defendant was not armed with a weapon and the police never recovered the

firearm used in the shooting. When defendant was searched at the police station, the police

discovered a baggie that contained a substance that tested positive for cocaine. At trial, the

defense attacked the credibility of the witnesses and the adequacy of the police investigation.

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the prosecution failed to present sufficient evidence to support any

of his convictions. We disagree. We review a challenge to the sufficiency of evidence de novo

by viewing the evidence in a light most favorable to the prosecution to determine if the evidence

was sufficient to justify a rational trier of fact in finding the defendant guilty beyond a reasonable

doubt. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992), amended 441 Mich

1201 (1992); People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010).

Circumstantial evidence and any reasonable inferences drawn from the evidence may be

sufficient to prove the elements of a crime. People v Abraham, 234 Mich App 640, 656; 599

NW2d 736 (1999). “This Court will not interfere with the trier of fact’s role of determining the

weight of the evidence or the credibility of witnesses[,]” People v Williams, 268 Mich App 416,

419; 707 NW2d 624 (2005), and all conflicts in the evidence must be resolved in the

prosecution’s favor, People v Jackson, 292 Mich App 583, 587-588; 808 NW2d 541 (2011).

Defendant first argues that the evidence was insufficient to support his convictions of

assault with intent to commit murder with respect to Bucy and Kozar, as well as the

corresponding felony-firearm convictions. The elements of assault with intent to commit murder

are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would have made the

killing murder. People v Barclay, 208 Mich App 670, 674; 528 NW2d 842 (1995). An intent to

kill may be inferred from any facts in evidence. Id. A conviction of felony-firearm requires

proof that the defendant possessed a firearm during the commission of, or the attempt to commit,

a felony. People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).

Bucy and Kozar both testified that defendant shot at them with a firearm. Although

defendant argues that Bucy’s and Kozar’s testimony was not credible because of inconsistencies

between their accounts, the credibility of their testimony was an issue for the jury to resolve. See

People v Lemmon, 456 Mich 625, 646-647; 576 NW2d 129 (1998); People v Naugle, 152 Mich

App 227, 235-236; 393 NW2d 592 (1986). We must resolve all conflicts in the evidence in

favor of the prosecution. Wolfe, 440 Mich at 515. Bucy and Kozar testified that defendant first

shot at Bucy after calling out his name, wounding Bucy twice. Defendant then fired at Kozar,

who was able to duck to avoid being hit. Bucy was shot in the chest area and shoulder, and the

shots fired at Kozar just missed striking his head. Defendant’s use of a firearm and the location

of the shots were sufficient to enable the jury to reasonably infer that defendant intended to kill

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both men, not just cause great bodily harm. Defendant’s claims that the police failed to properly

investigate the shooting were matters for the jury to consider as part of its evaluation of the

weight of the evidence and the credibility of the victims’ accounts. The evidence was sufficient

to support defendant’s convictions of two counts of assault with intent to commit murder.

Although a firearm was never recovered, given the witness accounts of the shooting, the

evidence that Bucy suffered two gunshot wounds, and the witnesses’ identification of defendant

as the shooter, as well as the testimony of multiple other witnesses who said they saw defendant

possess a handgun that night at Kozar’s house, the evidence was also sufficient to enable the jury

to convict defendant of both counts of felony-firearm.

Sufficient evidence also supports defendant’s conviction of possession of less than 25

grams of cocaine. The prosecution argued at trial that the drug charge was supported by

evidence that defendant supplied the cocaine found in Kozar’s bedroom and evidence that

cocaine was found in defendant’s pocket when he was searched at the police station after his

arrest. To prove this charge, the prosecutor was required to establish that (1) defendant

possessed a controlled substance, (2) the substance that defendant possessed was cocaine, (3)

defendant knew he possessed cocaine, and (4) the substance weighed less than 25 grams. MCL

333.7403(2)(a)(v). Possession of a controlled substance can be constructive or joint. Wolfe, 440

Mich at 519-520. Constructive possession occurs “when the totality of the circumstances

indicates a sufficient nexus between the defendant and the contraband.” Id. at 521. A defendant

does not have to be the owner of the controlled substance to be found in possession of it, but “a

person’s presence, by itself, at a location where drugs are found is insufficient to prove

constructive possession.” Id. at 520. “[S]ome additional connection between the defendant and

the contraband must be shown.” Id.

The physical evidence found in the bedroom at Kozar’s house included cocaine left on

the dresser. The testimony indicated that defendant supplied the cocaine to Bucy and Kozar.

That evidence, coupled with the evidence that the police recovered cocaine from defendant

during a search at the jail after he was arrested, was sufficient to prove that defendant possessed

less than 25 grams of cocaine. Although defendant argued that the cocaine found at the jail was

planted on him, the weight and veracity of that argument was for the jury to resolve. We also

reject defendant’s argument that Deputy Eckel failed to identify him as the person who had the

cocaine at the jail. During her testimony about the patdown search, Deputy Eckel prefaced her

testimony by confirming that “a suspect” came into the jail “by the name of Deonte McCoy.”

Even though she did not specifically identify defendant at trial, her testimony was sufficient to

enable the jury to find that defendant was the person she searched at the jail that day, and that the

cocaine she discovered came from defendant. Thus, there was sufficient evidence to convict

defendant of possession of less than 25 grams of cocaine.

Defendant argues that the evidence was insufficient to prove his status as a convicted

felon to support his conviction of felon in possession of a firearm. We disagree. To support the

felon-in-possession charge, the prosecution introduced a certified copy of defendant’s conviction

from Genesee County for delivery of less than 50 grams of a controlled substance. Although

defendant asserts that the evidence failed to show that he was actually the person named in that

document, defendant merely speculates that the record might have contained an inaccurate name

or involved a different person with the same name. That was an argument to be made to the jury.

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We must view the evidence in a light most favorable to the prosecution. Viewed in this manner,

the record evidence of defendant’s prior conviction was sufficient to prove his status as a

convicted felon. Accordingly, the evidence was sufficient to support defendant’s conviction of

felon in possession of a firearm.

II. VENUE

Next, defendant argues that the trial court erred by denying his motion for a change of

venue. “A motion for change of venue is addressed to the discretion of the trial judge.” People v

Jendrzejewski, 455 Mich 495, 500; 566 NW2d 530 (1997). The trial court’s decision will not be

disturbed on appeal “unless there clearly appears [to be] a palpable abuse of discretion.” Id.,

quoting People v Swift, 172 Mich 473, 480; 138 NW 662 (1912).

Defendant argued below that a change of venue was necessary because of pretrial

publicity about this case in the local newspapers. Defendants generally must be tried in the

county or city where the crime was committed. People v McBurrows, ___ Mich ___, ___; ___

NW2d ___ (2019) (Docket No. 157200); slip op at 3. Exceptions to this rule exist if “good cause

is shown by either party.” Jendrzejewski, 455 Mich at 499-500; MCL 762.7. Good cause to

change venue may exist where a case receives pretrial publicity. As explained in People v

Unger, 278 Mich App 210, 254; 749 NW2d 272 (2008):

“[T]he right to jury trial guarantees to the criminally accused a fair trial by

a panel of impartial, ‘indifferent’ jurors.” Irvin v Dowd, 366 US 717, 722; 81 S

Ct 1639; 6 L Ed 2d 751 (1961). Therefore, it may be appropriate to change the

venue of a criminal trial when widespread media coverage and community

interest have led to actual prejudice against the defendant. “Community prejudice

amounting to actual bias has been found where there was extensive highly

inflammatory pretrial publicity that saturated the community to such an extent

that the entire jury pool was tainted, and, much more infrequently, community

bias has been implied from a high percentage of the venire who admit to a

disqualifying prejudice.” Jendrzejewski, supra at 500-501. Changes of venue

might be required in cases involving “extensive egregious media reporting,” “a

barrage of inflammatory publicity leading to a ‘pattern of deep and bitter

prejudice’ against the defendant,” and “a carnival-like atmosphere surrounding

the proceedings.” Id. at 506-507 (citations omitted). Changes of venue might

also be required in cases involving “highly inflammatory attention to sensational

details . . . .” Id. at 508.

During voir dire, the trial court inquired about the venire’s exposure to pretrial publicity

about this case in the “County Press,” the “Tri-City Times,” or “anything else.” One juror told

the court that she had read something about the case the day before, including the charges, but

she did not form an opinion after reading the article. That juror added that she only learned from

the article that “they were picking the jury for today.” She assured the court that she understood

that a media report about the case could involve misstatements and that she could base any

decision only on what she heard in court. Another juror advised the court that on the previous

Sunday (two days earlier), she read “that this case may go to trial” that week. Nothing the juror

read caused her to form an opinion about the matter. Two other jurors also read articles in the

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Sunday paper about this case going to trial. Both jurors also confirmed that they could be fair

and impartial. None of these jurors were challenged for cause. When additional jurors were

questioned, some were specifically asked if they had read any publicity about this case and there

were no affirmative responses.

Defendant has demonstrated, at most, that this case generated some publicity in the local

press, but the record does not show that the publicity surrounding the case created or reflected

community bias against defendant. There is nothing to suggest that the media reporting exposed

the venire to extensive, sensational, or prejudicial information. The few jurors who recalled

reading about the case in the newspaper assured the court that they were able to set aside that

information and decide the case on the basis of the evidence introduced at trial. On this record,

the trial court did not abuse its discretion by denying defendant’s motion to change venue.

III. COMPOSITION OF THE JURY

Defendant, who is African-American, also argues that the trial court erred by denying his

motion challenging the racial composition of the jury venire, given that there were no African-

Americans in his jury venire. “Questions of systematic exclusion of minorities from venires are

reviewed de novo by this Court.” People v Williams, 241 Mich App 519, 525; 616 NW2d 710

(2000) (quotation marks and citation omitted).

Defendants are entitled to an impartial jury drawn from a fair cross-section of the

community, US Const, Am VI, but that does not require that a jury exactly mirror the particular

community. People v Howard, 226 Mich App 528, 532-533; 575 NW2d 16 (1997). “To

establish a prima facie violation of the fair cross-section requirement, a defendant must show that

a distinctive group was underrepresented in his venire or jury pool, and that the

underrepresentation was the result of systematic exclusion of the group from the jury selection

process.” People v Smith, 463 Mich 199, 203; 615 NW2d 1 (2000).

Defendant, as an African-American, is a member of a distinctive group, and the record

discloses that there were no African-Americans in defendant’s jury venire. However, to

establish a prima facie violation of the fair cross-section requirement, defendant was required to

offer evidence of jury venires in general in Lapeer County and evidence showing that any

underrepresentation of African-Americans was due to systematic exclusion. In Williams, 241

Mich App at 526-527, this Court stated:

Defendant satisfies the first prong of the Duren/Hubbard test.[1] “African-

Americans are considered a constitutionally cognizable group for Sixth

Amendment fair-cross-section purposes.” Hubbard, supra at 473. However,

neither the second nor third prong is satisfied. “[T]he second prong is satisfied

1

Duren v Missouri, 439 US 357; 99 S Ct 664; 58 L Ed 2d 579 (1979); People v Hubbard, 217

Mich App 459; 552 NW2d 493 (1996), overruled in part on other grounds by People v Bryant,

491 Mich 575, 617-618; 822 NW2d 124 (2012), and People v Harris, 495 Mich 120, 123; 845

NW2d 477 (2014).

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where it has been shown that a distinctive group is substantially underrepresented

in the jury pool.” Id. at 474. However, like the defendant in People v Howard,

226 Mich App 528, 533; 575 NW2d 16 (1997), this defendant asserts that

African-Americans were underrepresented in his particular array, but presents no

evidence on jury venires in general. “Merely showing one case of alleged

underrepresentation does not rise to a ‘general’ underrepresentation that is

required for establishing a prima facie case.” Id.

Even if defendant had satisfied the second prong of the test, he has clearly

failed to satisfy the third prong, which requires him to show that any

underrepresentation is due to systematic exclusion. Hubbard, supra at 481.

Defendant simply argues that “this prong will be met if a hearing is held on

remand,” and points out that “of the 50 prospective jurors, only two were African-

American,” while “nine percent of Kalamazoo County is African-American.”

“[I]t is well settled that systematic exclusion cannot be shown by one or two

incidents of a particular venire being disproportionate.” People v Flowers, 222

Mich App 732, 737; 565 NW2d 12 (1997). Furthermore, “[w]hile a criminal

defendant is entitled to an impartial jury drawn from a fair cross section of the

community, he is not entitled to a petit jury that exactly mirrors the community,”

and a “bald assertion” that systematic exclusion must have occurred is insufficient

to make out a claim of systematic exclusion. Id. at 736-737. Defendant has the

burden of demonstrating a problem inherent within the selection process that

results in systematic exclusion. Defendant has failed to do so. [Footnotes

omitted.]

Although the record establishes that there were no other African-Americans in

defendant’s jury pool, defendant did not offer any evidence of the number of African-Americans

in Lapeer County, and he also failed to offer any evidence that any underrepresentation of

African-Americans was due to systematic exclusion of minorities in the jury-selection process in

Lapeer County. Accordingly, he failed to establish a prime facie violation of the fair cross-

section requirement.

IV. DISCOVERY

Defendant argues that his right to due process was violated by the prosecution’s failure to

produce a pretrial victim-impact statement made by Bucy. “This Court reviews de novo a

defendant’s claim of a constitutional due-process violation.” Jackson, 292 Mich App at 590.

A defendant’s right to due process under US Const, Am XIV, is violated when the

prosecution suppresses material evidence favorable to the defense. Brady v Maryland, 373 US

83; 83 S Ct 1194; 10 L Ed 2d 215 (1963); People v Fox (After Remand), 232 Mich App 541,

549; 591 NW2d 384 (1998). To establish a Brady violation, the defendant must show that (1)

the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3)

viewed in its totality, the evidence was material. People v Chenault, 495 Mich 142, 155; 845

NW2d 731 (2014). The prosecution bears responsibility for evidence within its control, even

evidence unknown to it, and even where the nondisclosure was inadvertent and not intentional.

Id. at 150. In Chenault, the Court discussed the element of materiality as follows:

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To establish materiality, a defendant must show that “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” This standard “does not

require demonstration by a preponderance that disclosure of the suppressed

evidence would have resulted ultimately in the defendant’s acquittal . . . .” The

question is whether, in the absence of the suppressed evidence, the defendant

“received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” In assessing the materiality of the evidence, courts are to consider

the suppressed evidence collectively, rather than piecemeal. [Id. at 150-151

(citations omitted).]

Stated another way, “[t]he question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” Id at 157.

At sentencing, defendant argued that he was entitled to a new trial because the

prosecution never provided a copy of a victim-impact statement written by Bucy shortly after the

offense. Defendant learned about the statement because it was reprinted in defendant’s

presentence investigation report (PSIR). Defendant argued that the statement was material

because it could have been used to impeach Bucy’s testimony at trial. The prosecutor denied

that the statement was withheld and claimed that it was included in a discovery package provided

to defense counsel on July 15, 2016. The trial court found that the disputed statement was

provided during discovery and denied defendant’s request for a new trial.

We are troubled by the trial court’s conclusory finding that the disputed statement was

provided during discovery. The defense denied that the statement was ever received and the

court did not conduct any evidentiary hearing to resolve the issue. The court instead relied on a

proof of service that did not specifically identify the disputed statement. However, even

assuming that the impact statement was not produced during discovery, defendant is not entitled

to relief because he has not demonstrated that the statement was material.

Defendant argues that Bucy’s impact statement was material because it contained

information that could have been used to impeach Bucy’s testimony at trial. He points to Bucy’s

statement that he was shot in the chest with one of the bullets, which “damaged my stomach and

liver along w/a loss of a lot of blood, fractured rib and collapsed lung.” Defendant argues that

this statement was inconsistent with evidence at trial that no blood was observed in the bedroom

or bathroom. However, Bucy did not testify at trial that his blood loss occurred in the bedroom

or bathroom, and defendant does not identify any testimony by Bucy at trial regarding his blood

loss that was inconsistent with his prior statement. It was undisputed that Bucy received two

gunshot wounds, that others in the house swiftly came to his aid, and that one of the house

members transported him to the hospital. Furthermore, there was other evidence that Bucy lost

blood after the shooting. Strength, who drove Bucy part of the way to the hospital, testified that

when Bucy ran downstairs, he was bleeding and screaming that he had been shot. She did not

see blood dripping, but saw blood on his shirt and he was holding his finger in the bullet hole so

he would not bleed out. After he got out of her car, she saw blood on her car seat. Bucy’s

impact statement did not specify the timing of the blood loss. The statement is not inconsistent

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with other evidence that Bucy lost a significant amount of blood until he received medical care.

Furthermore, the amount of Bucy’s blood loss was not a critical factor in this case. In sum, there

is no reasonable probability that the amount of Bucy’s blood loss inside the house after the

shooting was material to either Bucy’s credibility or any other issue at trial.

Defendant also argues that Bucy’s prior statement inaccurately indicated that defendant

“was on massive amounts of cocaine + drinking” at the time of the shooting. Although

defendant disputes that he had consumed a large amount of drugs or alcohol, witnesses testified

that defendant was using cocaine and consuming alcohol earlier that day with Kozar, and that

defendant was part of the group who was using cocaine in the master bedroom immediately

before the shooting. Considering the other evidence of defendant’s cocaine and alcohol use that

day, there is no reasonable probability that the outcome of the proceeding would have been

different if defendant had been aware that Bucy had described defendant’s consumption of

cocaine and alcohol that day as “massive.”

Defendant also observes that Bucy’s impact statement mentioned that defendant reloaded

his gun after he fired five shots at Bucy and Kozar. Although defendant emphasizes that Bucy

did not mention this at trial, the record discloses that Bucy was never questioned about this

subject. Thus, there was no trial testimony that contradicted Bucy’s earlier statement about

defendant reloading the weapon. Bucy’s prior statement could not have been used to impeach

Bucy’s trial testimony when Bucy did not make an inconsistent statement at trial about whether

defendant reloaded the gun.

In sum, even if the disputed evidence was not produced during discovery, defendant is

not entitled to relief because he has not demonstrated that Bucy’s prior statement was material to

his right to a fair trial.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next argues that he is entitled to a new trial because he was denied the

effective assistance of counsel. Because defendant did not raise his ineffective-assistance claims

in the trial court, our review of this issue is limited to errors apparent from the record. People v

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of

counsel, defendant must show that counsel’s performance fell below an objective standard of

reasonableness, and that the representation so prejudiced defendant that he was denied the right

to a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendant must

overcome the presumption that the challenged action might be considered sound trial strategy.

People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice,

defendant must show a reasonable probability that, but for counsel’s error, the result of the

proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637

(1996).

Defendant first argues that defense counsel was ineffective for not requesting an

instruction consistent with M Crim JI 4.5, regarding a jury’s consideration of a witness’s prior

inconsistent statement. During trial, defense counsel introduced a portion of Bucy’s preliminary

examination testimony in an attempt to show that, contrary to Bucy’s trial testimony, Bucy gave

testimony at defendant’s preliminary examination suggesting that defendant fired the first shots

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at Kozar. Bucy disputed the accuracy of that testimony and continued to insist at trial that the

first shots were fired at him. Defendant also offered Deputy Eckel’s preliminary examination

testimony to impeach her trial testimony that when defendant was first brought to the jail, she

was not informed that defendant had been searched earlier. The impeachment evidence resulted

in Deputy Eckel conceding that one of the road patrol deputies had informed her that defendant

was searched previously.

M Crim JI 4.5 provides:

You have heard evidence that, before the trial, [a witness/witnesses] made

[a statement/statements] that may be inconsistent with [his/her/their] testimony

here in court.

(1) You may consider an inconsistent statement made before the trial

[only] to help you decide how believable the [witness’/witnesses’] testimony was

when testifying here in court.

(2) If the earlier statement was made under oath, then you may also

consider the earlier statement as evidence of the truth of whatever the

[witness/witnesses] said in the earlier [statement/statements] when determining

the facts of this case.

On appeal, defendant argues that the trial court’s failure to give M Crim JI 4.5 prevented

the jury from finding “reasonable doubt in the prosecution’s case based on their assessment of

the credibility of the witnesses.” He contends that “[t]he jury very likely could have found that

the prosecution’s witnesses and evidence were not credible, and evaluated the evidence

differently.” We reject defendant’s arguments because M Crim JI 4.5 was not necessary to assist

the jury in determining the witnesses’ credibility. The purpose of M Crim JI 4.5 is to prevent a

jury from considering impeachment evidence as substantive evidence. See People v Durkee, 369

Mich 618, 627; 120 NW2d 729 (1963). In this case, however, the prior inconsistent statements

involved prior testimony given at a preliminary examination. Because the preliminary

examination testimony was given under oath, even if it was inconsistent with the witnesses’ trial

testimony, the jury could have considered it as substantive evidence, as well as impeachment

evidence. MRE 801(d)(1)(A); People v Chavies, 234 Mich App 274, 281-282; 593 NW2d 655

(1999), overruled in part on other grounds by People v Williams, 475 Mich 245; 716 NW2d 208

(2006). Moreover, the prior testimony was elicited by defense counsel and was offered by the

defense to refute the witnesses’ trial testimony. Under these circumstances, even if an

instruction based on M Crim JI 4.5 would have been appropriate, there is no basis for concluding

that defendant was prejudiced by defense counsel’s failure to request the instruction. Therefore,

this ineffective-assistance claim cannot succeed.

Defendant next argues that defense counsel was ineffective for allowing the prosecutor to

support the felon-in-possession charge by introducing evidence that defendant was previously

convicted of delivery of less than 50 grams of a controlled substance, instead of merely

stipulating that defendant was previously convicted of an unspecified felony. Although such a

stipulation would have been appropriate, see People v Swint, 225 Mich App 353, 377-379; 572

NW2d 666 (1997), defendant has not overcome the presumption that defense counsel elected not

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to enter into such a stipulation as a matter of reasonable trial strategy. In addition to the charge

of possession of less than 25 grams of cocaine, defendant was also charged with the more serious

crimes of two counts of assault with intent to commit murder. Defense counsel may have

believed that by stipulating that defendant had a prior conviction for an unspecified felony, the

jury might think that the prior felony was for another violent offense. Considering the more

serious assault with intent to commit murder charges defendant was facing, counsel may have

reasoned that it would be less damaging if the jury knew that the prior conviction involved

another drug offense. The prosecution’s exhibit allowed the jury to hear that defendant had a

prior drug conviction, but it did not reveal the factual details regarding that offense, so counsel

may have believed that the evidence would not be unduly prejudicial. Defendant implies that

introduction of his prior conviction for a drug offense was unduly prejudicial because it

predisposed the jury to convict him of the drug offenses at issue in the present case. As

discussed above, however, the evidence was sufficient to support defendant’s drug-related

convictions.

For his last ineffective-assistance claim, defendant argues that defense counsel was

ineffective for not moving to suppress two statements that defendant made to Detective Eckel.

The first statement was made when Deputy Eckel found the packet of white substance while

searching defendant at the jail. Upon finding the substance, defendant volunteered to Deputy

Eckel that the substance was heroin. Later, after Deputy Eckel gave the packet to Deputy

Bowman, they both went back and asked defendant what it was and he said it was “crack.”

Defendant argues that defense counsel should have moved to suppress these statements on the

ground that they were made without the police advising him of his Miranda2 rights.

There is no evidence that defendant’s first statement was made in response to any police

questioning. Volunteered statements that are not made during custodial interrogation are not

subject to the requirements of Miranda. People v White, 493 Mich 187, 194-195; 828 NW2d

329 (2013). Because defendant appears to have initiated the conversation and there is no

indication that defendant’s first statement was made in response to police questioning, defendant

has not demonstrated that any objection to this statement would have been successful. Counsel

is not ineffective for failing to make a futile objection or motion. People v Darden, 230 Mich

App 597, 605; 585 NW2d 27 (1998).

Regarding defendant’s second statement, even if defense counsel could have successfully

moved to suppress the statement, defendant has not demonstrated a reasonable probability that

the outcome of his trial would have been different. The evidence had no bearing on defendant’s

guilt or innocence of the assault with intent to commit murder and firearm charges. With respect

to the drug charge, the evidence showed that defendant sold drugs, that defendant and Kozar

used cocaine before arriving at Kozar’s house earlier that evening, that defendant and several

others were consuming cocaine supplied by defendant in the master bedroom of Kozar’s house

shortly before the shooting, and that the substance seized from defendant during the search at the

jail tested positive for cocaine. Considering this body of evidence, there is no reasonable

2

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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probability that the outcome of defendant’s trial would have been different if defendant’s second

statement had not been offered at trial.

VI. JURY INSTRUCTIONS

Defendant next argues that the trial court erred by instructing the jury on flight, and by

not including a “shotgun” as a type of weapon in its instructions defining the terms “dangerous

weapon” and “firearm.” Jury instruction issues involving questions of law are reviewed de novo,

but a trial court’s decision whether a jury instruction is applicable to the facts of the case is

reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).

An abuse of discretion occurs when the trial court chooses an outcome falling outside the range

of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A trial

court may give an instruction if a rational view of the evidence supports the instruction. People v

Armstrong, 305 Mich App 230, 240; 851 NW2d 856 (2014).

First, defendant argues that the evidence did not support an instruction on flight. We

disagree. The standard jury instruction on flight, M Crim JI 4.4, provides:

(1) There has been some evidence that the defendant [tried to run

away/tried to hide/ran away/hid] after [the alleged crime/(he/she) was accused of

the crime/the police arrested (him/her)/the police tried to arrest (him/her)].

(2) This evidence does not prove guilt. A person may run or hide for

innocent reasons, such as panic, mistake, or fear. However, a person may also run

or hide because of a consciousness of guilt.

(3) You must decide whether the evidence is true, and, if true, whether it

shows that the defendant had a guilty state of mind.

The trial court instructed the jury as follows:

There has been some evidence that the Defendant tried to run away after

the alleged crimes. This evidence does not prove guilt. A person may run or hide

for innocent reasons such as panic, mistake, or fear. However, a person may also

run or hide because of a consciousness of guilt. You must decide whether the

evidence is true, and if true, whether it shows that the Defendant had a guilty state

of mind.

Although defendant emphasizes that he voluntarily surrendered when he encountered the

police, witnesses testified that defendant ran from the house after the shooting, and the evidence

also indicated that defendant took a route through a swampy area after fleeing from the house.

This evidence supports the trial court’s decision to instruct the jury on flight. See Unger, 278

Mich App at 226 (evidence of flight includes such actions as fleeing the scene of the crime and

preparing to flee). The trial court did not abuse its discretion by giving the flight instruction.

Defendant also argues that the trial court erred by not including a shotgun in its

instructions defining the terms “dangerous weapon” and “firearm.” We again disagree. The trial

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court defined the term “dangerous weapon” in relation to the assault with intent to commit

murder charges as follows:

A dangerous weapon is any object that is used in a way that is likely to

cause serious physical injury or death. Some objects, such as guns or bombs, are

dangerous because they are specifically designed to be dangerous. Other objects

are designed for peaceful purposes but may be used as a dangerous weapon. The

way an object is used or intended to be used in an assault determines whether or

not it is a dangerous weapon. If an object is used in a way that is likely to cause

serious physical injury or death it is a dangerous weapon. You must decide from

all the facts and circumstances whether the evidence shows that the firearm in

question here was a was [sic] dangerous weapon.

A gun/pistol is a firearm. A firearm includes any weapon which is

designed to or may readily be converted to expel a projectile by action of an

explosive. It does not matter whether the gun/pistol was capable of firing a

projectile or whether it was loaded. [Emphasis added.]

The first paragraph of this instruction was modeled after M Crim JI 17.10 (defining a “dangerous

weapon”). The last portion of the standard instruction allows the court to insert a reference to the

type of weapon at issue in the case:

(3) You must decide from all of the facts and circumstances whether the

evidence shows that the ________ in question here was a dangerous weapon.

Defendant appears to argue that the trial court should have included “shotgun” in the emphasized

portion of its instructions. Instead, the court simply used the term “firearm,” choosing not to

specify what type of firearm may have been used. Although the defense argued that Kozar may

have had a shotgun in the house, all of the eyewitnesses testified that defendant was armed with a

handgun. There was no evidence that a shotgun was used during the shooting. Because no

rational view of the evidence allowed the jury to find that a shotgun was used in the shooting

assault of either Bucy or Kozar, the trial court did not err by denying defendant’s request to

include the term “shotgun” in its instructions.

Similarly, the trial court did not err by declining to include “shotgun” in its instructions

defining a “firearm.” The court followed the standard instruction, M Crim JI 17.11, which

provides, in relevant part:

(1) A gun [revolver/pistol] is a firearm. A firearm includes any weapon

which is designed to or may readily be converted to expel a projectile by action of

an explosive.

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Once again, the witnesses only described defendant using a handgun, not a shotgun, and there

was no physical evidence suggesting that the shooting was committed with a shotgun. Thus, the

trial court did not err by not including a shotgun in its instructions defining the term “firearm.”3

VII. SENTENCING

Defendant challenges his sentences of 25 to 40 years each for his convictions of assault

with intent to commit murder. These sentences were within the sentencing guidelines range of

270 to 900 months, or life, as enhanced for defendant’s status as a fourth-offense habitual

offender. Defendant argues that the trial court erred by relying on judge-found facts to score the

sentencing guidelines, and also erred in scoring several of the offense variables (OVs). We

disagree.

When reviewing a trial court’s scoring decision, the trial court’s “factual determinations

are reviewed for clear error and must be supported by a preponderance of the evidence.” People

v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate

to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,

is a question of statutory interpretation, which an appellate court reviews de novo.” Id. A

finding is clearly erroneous when the reviewing court is left with a definite and firm conviction

that a mistake has been made. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).

Whether a trial court’s reliance on judge-found facts to score the guidelines violated a

defendant’s Sixth Amendment right to a jury trial is a question of constitutional law, which this

Court reviews de novo. People v Lockridge, 498 Mich 358, 373; 870 NW2d 502 (2015).

Initially, we reject defendant’s argument that the trial court was not permitted to rely on

judge-found facts to score the guidelines, contrary to Alleyne v United States, 570 US 99; 133 S

Ct 2151; 186 L Ed 2d 314 (2013). In Lockridge, 498 Mich at 364, our Supreme Court held that

Michigan’s sentencing guidelines are constitutionally deficient, in violation of the Sixth

Amendment, to the extent that they “require judicial fact-finding beyond facts admitted by the

defendant or found by the jury to score offense variables (OVs) that mandatorily increase the

floor of the guidelines minimum sentence range . . . .” To remedy this deficiency, the Court held

that the guidelines are advisory only. Id. at 365. Under Lockridge, however, trial courts are still

permitted to score the OVs using judicially found facts. Id. at 392 n 28. As this Court explained

in People v Biddles, 316 Mich App 148, 158; 896 NW2d 461 (2016),

[t]he constitutional evil addressed by the Lockridge Court was not judicial fact-

finding in and of itself, it was judicial fact-finding in conjunction with required

application of those found facts for purposes of increasing a mandatory minimum

sentence range, which constitutional violation was remedied in Lockridge by

making the guidelines advisory, not by eliminating judicial fact-finding.

3

We note, however, that the court’s instructions were broad enough to encompass a shotgun,

which also qualifies as a weapon used to expel a projectile.

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Our Supreme Court decided Lockridge in 2015. Defendant was sentenced in December 2017.

Because the guidelines were advisory at the time defendant was sentenced, the trial court’s

reliance on judge-found facts to score the guidelines did not violate defendant’s Sixth

Amendment rights.

Defendant also challenges the trial court’s scoring of OV 3, OV 4, and OV 5 of the

sentencing guidelines. With respect to OV 3, the trial court assessed 25 points, which is the

appropriate score when a “[l]ife threatening or permanent incapacitating injury occurred to a

victim.” MCL 777.33(1)(c). Defendant argues that the trial court should have assessed, at most,

only 10 points for this variable, which is the appropriate score where “[b]odily injury requiring

medical treatment occurred to a victim.” MCL 777.33(1)(d). When scoring OV 3, the trial court

is required to “assign[] the number of points attributable to the [factor] that has the highest

number of points.” MCL 777.33(1). At trial, the doctor who treated Bucy’s gunshot wound

testified that Bucy would have died from his injury if she had not inserted a chest tube. This

testimony supports the trial court’s finding that Bucy received a life-threatening injury from the

shooting. Accordingly, the trial court did not err by assessing 25 points for OV 3.

Defendant next challenges the trial court’s 10-point score for OV 4 (psychological harm

to a victim). When scoring OV 4, the trial court must assess 10 points if the victim suffered

“[s]erious psychological injury requiring professional treatment.” MCL 777.34(1)(a). In scoring

this variable, a court should “[s]core 10 points if the serious psychological injury may require

professional treatment” and “the fact that treatment has not been sought is not conclusive.” MCL

777.34(2). However, a trial court cannot simply assume that someone in the victim’s place

would have suffered psychological harm or conclude that a reasonable person in the victim’s

situation would have suffered a serious psychological injury. People v White, 501 Mich 160,

163-164; 905 NW2d 228 (2017). Rather, there must be some evidence of psychological injury

on the record to justify the assessment of points. People v Lockett, 295 Mich App 165, 183; 814

NW2d 295 (2012). In this case, Bucy reported that he suffered from “severe PTSD” (post-

traumatic stress disorder) as a result of the shooting, which, along with chronic pain from his

gunshot wounds, caused him to suffer daily. The trial court also observed that Bucy “displayed

significant emotional pain and anxiety while recounting the events of the assault during his trial

testimony.” Although defendant emphasizes that Bucy had not actually sought treatment, the

fact that treatment had not been sought was not conclusive. MCL 777.34(2). The trial court did

not clearly err by finding that there was sufficient evidence of an actual “serious psychological

injury [that] may require professional treatment” to justify the 10-point score.

Defendant also argues that the trial court erred by assessing 15 points for OV 5 (serious

psychological injury to a member of the victim’s family). The trial court scored this variable on

the basis of its finding that Bucy’s children suffered a serious psychological injury requiring

professional treatment. MCL 777.35(1)(a) provides that 15 points should be scored where

“[s]erious psychological injury requiring professional treatment occurred to a victim’s family

may require professional treatment.” Fifteen points should be scored if “the serious

psychological injury . . . may require professional treatment” and “the fact that treatment has not

been sought is not conclusive.” MCL 777.35(2). Defendant’s primary objection to the scoring

of OV 5 was that Bucy’s children were outside the house when the shooting occurred and there

was disagreement among witnesses whether additional shots were fired outside the house.

Regardless of the children’s physical presence at the time of the shooting, the evidence indicated

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that they were at the house when the shooting occurred and they witnessed the aftermath of the

shooting, including seeing their father’s anguish after he had been shot and hearing his

comments that he thought he was going to die. Significantly, Bucy reported that his children had

also suffered from PTSD since the shooting. This evidence supports the trial court’s 15-point

score for OV 5.4

Defendant also discusses the reasonableness of his guidelines sentences for assault with

intent to commit murder, including whether his sentences satisfy the principle of proportionality,

which is the standard for reviewing a sentence for reasonableness. People v Steanhouse, 500

Mich 453, 459-460; 902 NW2d 327 (2017). However, this Court only reviews departure

sentences for reasonableness. People v Anderson, 322 Mich App 622, 636-637; 912 NW2d 607

(2018). Under MCL 769.34(10), this Court is required to affirm a sentence that is within the

sentencing guidelines range absent an error in scoring the guidelines or reliance on inaccurate

information. People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016).5 Because

4

Evidence of post-incident psychological injury often includes more than a victim’s conclusory

written statement that family members suffered such harm. See, e.g., People v Calloway, 500

Mich 180, 188-189; 895 NW2d 165 (2017) (testimony by the victim’s stepfather that the

victim’s mother was having a hard time dealing with the situation, that the incident had a

tremendous traumatic effect on him and his family, and that he would have to go through the rest

of his life with a granddaughter who did not know her father supported the trial court’s

assessment of 15 points for OV 5); People v Steanhouse, 313 Mich App 1, 38-39; 880 NW2d

297 (2015), aff’d in part, rev’d in part on other grounds People v Steanhouse, 500 Mich 453; 902

NW2d 327 (2017) (scoring 15 points for OV 5 supported by trial court’s observations of the

demeanor of the victim’s parents during their testimony, victim’s testimony that his parents were

“deeply affected” by the incident and were in the process of seeking psychological help); People

v Davis, 300 Mich App 502, 512; 834 NW2d 897, abrogated in part on other grounds by People

v Hardy, 494 Mich 430, 428; 835 NW2d 340 (2013) (scoring 15 points for OV 5 supported by

evidence that the defendant’s acts caused the victim’s biological mother to suffer “depression

and a nervous breakdown that resulted in her receiving more medication that before the crime”).

Nevertheless, even if we were inclined to agree with defendant that the trial court erred in

scoring OV 5, deducting 15 points from his OV score would not change defendant’s minimum

sentencing guidelines. As scored, defendant has 115 OV points. That puts defendant at OV

level VI, which applies whenever a defendant has 100 or more OV points. Thus, deducting 15

points from defendant’s score of 115 would not change his OV level VI, nor the recommended

minimum sentence ranges for a fourth-habitual offender in his sentencing grid (F-VI).

5

We note that there is precedential authority that suggests that in some cases, “unusual

circumstances” may exist that overcome the presumption that a particular sentence within the

guidelines range is reasonable and proportionate to the offense and the offender. People v

Steanhouse, 322 Mich App 233, 238 n 3; 911 NW2d 253 (2017), citing People v Milbourn, 435

Mich 630, 661; 461 NW2d 1 (1990); see also People v Lee, 243 Mich App 163, 187; 622 NW2d

71 (2000) (indicating that the presumption that a sentence within the guidelines is proportional

may be overcome if a defendant presents evidence of “unusual circumstances”). No unusual

circumstances exist to overcome the presumption of proportionality in this case.

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defendant’s sentences are within the applicable guidelines ranges, and defendant has not

established a scoring error or reliance on inaccurate information, we affirm defendant’s

sentences.

VIII. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises an additional claim of error in a pro se supplemental brief, filed

pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4. He complains that he

was never properly arraigned on the information. Because defendant never challenged his

arraignment in the trial court, this issue is unpreserved and we review the issue for plain error

affecting defendant’s substantial rights. People v Henry (After Remand), 305 Mich App 127,

158; 854 NW2d 114 (2014).

Defendant argues that a new trial is required because he was not afforded an arraignment

on the information in circuit court and he did not properly waive arraignment. MCR 6.113

governs arraignments on the information. MCR 6.113(B) provides:

The prosecutor must give a copy of the information to the defendant

before the defendant is asked to plead. Unless waived by the defendant, the court

must either state to the defendant the substance of the charge contained in the

information or require the information to be read to the defendant. If the

defendant has waived legal representation, the court must advise the defendant of

the pleading options. If the defendant offers a plea other than not guilty, the court

must proceed in accordance with the rules in subchapter 6.300. Otherwise, the

court must enter a plea of not guilty on the record. A verbatim record must be

made of the arraignment.

MCR 6.113(C), which addresses waivers of an arraignment, provides:

A defendant represented by a lawyer may, as a matter of right, enter a plea

of not guilty or stand mute without arraignment by filing, at or before the time set

for the arraignment, a written statement signed by the defendant and the

defendant’s lawyer acknowledging that the defendant has received a copy of the

information, has read or had it read or explained, understands the substance of the

charge, waives arraignment in open court, and pleads not guilty to the charge or

stands mute.

Defendant was present at his preliminary examination on August 26, 2016, following

which the court bound him over for trial on two counts of assault with intent to commit murder,

felon in possession of a firearm, possession of less than 25 grams of cocaine, and two counts of

felony-firearm. The court set a date of September 12, 2016, for defendant’s arraignment in

circuit court. On that date, defense counsel filed a document entitled, “Waiver of Arraignment,”

which simply stated, “Please take notice that Defendant, DEONTE KINWAN MCCOY, waives

his right to an arraignment in open court.” Only defendant’s attorney signed that document. The

trial court acknowledged receipt of this document, but noted that it did not indicate whether

defendant stands mute or pleads not guilty. Accordingly, the court entered a plea of not guilty on

defendant’s behalf.

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Ten days later, at a hearing on September 26, 2016, defense counsel asked to withdraw

because of a breakdown in his relationship with defendant, who expressed a desire to represent

himself. In the process of discussing defendant’s right to self-representation, the court advised

defendant of the charges against him and the possible penalties he was facing.

Defendant correctly states that the waiver document filed with the court was defective

because the document (1) was not signed by defendant, (2) did not state whether defendant read

the information or had it read to him, (3) did not state that defendant understood the charges

against him, and (4) did not indicate if defendant was pleading not guilty or stood mute, as

required by MCR 6.113(C). However, “[a] showing of prejudice is required to merit relief for

the failure to hold a circuit court arraignment.” Henry, 305 Mich App at 159; People v Nix, 301

Mich App 195, 208; 836 NW2d 224 (2013). Defendant has not made the requisite showing of

prejudice.

First, there is nothing in the record to indicate that defendant did not agree to waive his

arraignment. Second, even if defendant did not agree to waive his arraignment, he was provided

with formal notice of the charges against him. “The purpose of an arraignment is to provide

formal notice of the charge against the accused” and to also allow the defendant to enter a plea to

the charges. Nix, 301 Mich App at 208. Defendant received notice of the charges against him

when he was present at the preliminary examination and again at the hearing on September 26,

2016, when the court advised defendant of the charges against him after he indicated that he

wanted to represent himself. Defendant also fails to explain how he was prejudiced by counsel’s

failure to formally enter a plea when attempting to waive arraignment. The trial court ultimately

entered a plea of not guilty on defendant’s behalf. Moreover, “[a]fter trial on the merits want of

plea does not render a conviction invalid.” Nix, 301 Mich App at 208, quoting People v Weeks,

165 Mich 362, 364; 130 NW 697 (1911). For these reasons, any error did not affect defendant’s

substantial rights. Accordingly, defendant is not entitled to relief.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Jane M. Beckering

/s/ Anica Letica

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