People of Michigan v. Stevie Golden

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

August 26, 2021

Plaintiff-Appellee,

v No. 353535

Wayne Circuit Court

STEVIE GOLDEN, LC No. 18-008894-01-FC

Defendant-Appellant.

Before: SAWYER, P.J., and BOONSTRA and RICK, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions for second-degree murder,

MCL 750.317, carrying a concealed weapon, MCL 750.227, felon in possession of a firearm

(felon-in-possession), MCL 750.224f, felon in possession of ammunition, MCL 750.224f(3), 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 60 to 95 years’ imprisonment for the second-degree murder conviction, 60 to 95

years’ imprisonment for the carrying a concealed weapon conviction, 60 to 95 years’ imprisonment

for the felon-in-possession conviction, 60 to 95 years’ imprisonment for the felon in possession of

ammunition conviction, and two years’ imprisonment for both felony-firearm convictions. We

affirm.

This case arises out of a shooting on October 9, 2018, at a coney island in Detroit,

Michigan. Defendant and the victim, Kevin Riggs, knew each other prior to the day of the

shooting. Debra Boyd testified that, on the day of the shooting, she had seen defendant and Riggs

have an altercation, during which Riggs demanded money from defendant. Eventually Riggs

drove off in his truck, while defendant and Boyd walked to the store. While walking, they parted

ways so that Boyd could go to the store to get change because she owed defendant $50. Defendant

continued to walk to the coney island. Before reaching the coney island, defendant stopped at a

house on the way to get a firearm from “associates.” He claimed he was apprehensive and did not

know what Riggs would do because Riggs was “super high.”

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When defendant arrived at the coney island, Riggs was in the parking lot. Defendant went

into the coney island. He proceeded to pace the inside of the restaurant, checking the front door

for Riggs. When Boyd started to approach the coney island, defendant walked outside with a gun

in his hand, covered by a bandana. Riggs approached defendant and Boyd. Boyd handed

defendant the money she owed him and started to walk off. Within moments, Riggs punched

defendant in the face. Riggs fell to the ground, while defendant remained standing. As Riggs

stood up, defendant fatally shot Riggs in the chest. Defendant walked away from the scene and

was arrested at a later time.

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that his conviction of second-degree murder must be vacated because the

prosecution failed to present sufficient evidence of the requisite malice or that defendant did not

act in self-defense. We disagree.

This Court reviews a challenge to the sufficiency of the evidence de novo. People v Miller,

326 Mich App 719, 735; 929 NW2d 821 (2019). “We review the evidence in a light most favorable

to the prosecution to determine whether a rational trier of fact could find that the prosecution

proved the crime’s elements beyond a reasonable doubt.” Id. “Conflicting evidence and disputed

facts are to be resolved by the trier of fact.” Id. “[C]ircumstantial evidence and reasonable

inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.”

People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011) (cleaned up).

“The elements of second-degree murder are (1) a death, (2) the death was caused by an act

of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful

justification or excuse for causing the death.” People v Baskerville, ___ Mich App ___, ___; ___

NW2d ___ (2020) (Docket No. 345403); slip op at 3 (cleaned up). Defendant argues that the

prosecution failed to establish the third and fourth elements.

We first address whether the prosecution presented sufficient evidence for the jury to find

that defendant acted with malice. “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.” Id. (cleaned up).

Defendant contends that the prosecution failed to establish that he acted with malice

because the defense presented evidence that defendant did not intend to kill Riggs. Rather,

defendant only intended to stop Riggs from attacking him. Defendant’s argument lacks merit.

Malice can be established through evidence of an intent to do great bodily harm or 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. Id. Defendant testified that he stopped on his way to the

coney island to arm himself with a gun because he was apprehensive of Riggs’s actions since Riggs

could be violent, particularly when he was under the influence of substances. Once at the coney

island, defendant paced the inside of the restaurant, continuously walking to the front door to peer

outside at Riggs because he was “waiting on it to go down.” Riggs was parked outside the building.

As Boyd started to walk up to the coney island, defendant exited the coney and stood outside near

the front end of Riggs’s truck, while Riggs was seated inside the truck. Defendant walked to Boyd,

holding the concealed handgun, which was covered with a bandana, behind his back. Within

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moments, Riggs exited his truck, held his hand out, and walked up to defendant and Boyd. After

Boyd handed defendant the money, defendant and Riggs started to walk toward Riggs’s truck.

Defendant continued to hold the gun in his hand, covered with the bandana. As they walked, Riggs

punched defendant in the face. Riggs fell to the ground, while defendant remained standing. As

Riggs stood up, defendant shot Riggs in the upper body from a few feet away. Riggs stumbled

away from defendant and fell near the entrance of the coney island. Defendant followed behind

Riggs, walked inside the coney island, and placed the gun in his back pocket. Defendant grabbed

his bag of belongings that he had left inside the coney island and walked back out the front door.

As defendant walked out of the door, he looked down at Riggs’s body and walked off in the

opposite direction.

Despite defendant’s testimony that he did not intend to kill Riggs, the prosecution

presented sufficient evidence for a jury to find that defendant acted with malice. Defendant armed

himself with a gun, knowing there could be an altercation, he exited the coney island, knowing

that Riggs was outside, he covered the gun with a bandana and held it behind his back, illustrating

that he intended to hide it, and he shot Riggs in the upper body from close range. Further,

defendant testified that he had the intent to stop Riggs by shooting him, he almost shot Riggs while

he was on the ground, but he allowed Riggs to stand up before shooting him, and he chose not to

leave the scene after being punched because he believed he had a right to stand his ground in

Michigan. On the basis of defendant’s actions and his own testimony, the jury could reasonably

find that defendant either shot Riggs with the intent to cause great bodily harm, or with 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.

Next, defendant argues that the prosecution failed to disprove that he acted in self-defense.

Self-defense is an affirmative defense. People v Dupree, 486 Mich 693, 707; 788 NW2d 399

(2010). “In general, a defendant does not act in justifiable self-defense when he or she uses

excessive force or when the defendant is the initial aggressor.” People v Guajardo, 300 Mich App

26, 35; 832 NW2d 409 (2013). “With the enactment of the Self–Defense Act (SDA),

MCL 780.971 et seq., the Legislature codified the circumstances in which a person may use deadly

force in self-defense or in defense of another person without having the duty to retreat.” Dupree,

486 Mich at 708. MCL 780.972(1) provides, in relevant part:

(1) An individual who has not or is not engaged in the commission of a

crime at the time he or she uses deadly force may use deadly force against another

individual anywhere he or she has the legal right to be with no duty to retreat if

either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly

force is necessary to prevent the imminent death of or imminent great bodily harm

to himself or herself or to another individual.

“Once a defendant raises the issue of self-defense and satisfies the initial burden of producing

some evidence from which a jury could conclude that the elements necessary to establish a prima

facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense

beyond a reasonable doubt.” People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014)

(cleaned up).

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The prosecution presented sufficient evidence to exclude the possibly that defendant acted

in self-defense. As stated previously, defendant deliberately armed himself with a handgun,

knowing there could be an altercation. Defendant paced inside the convey island, “waiting on it

to go down,” but chose to exit the coney island, despite knowing that Riggs was waiting outside

in his truck. Despite defendant’s testimony that Riggs could see the gun in his hand, the

surveillance video, as well as Boyd’s testimony, indicate that the gun was not easily visible because

it was inside of a bandana, which defendant held to his side or behind his back at all times before

shooting Riggs. Further, contrary to defendant’s testimony that Riggs’s punch knocked defendant

10 feet, leaving defendant to regain his composure before shooting Riggs in fear for his life, the

surveillance video illustrates that, after Riggs punched defendant, defendant remained standing,

while Riggs fell forward onto the ground. Moreover, defendant’s own testimony that he waited

for Riggs to stand up before he shot Riggs contradicts defendant’s testimony that he shot Riggs

because he feared for his life. In addition, although Riggs had a bayonet on him when he was

killed, the surveillance video and Boyd’s testimony indicate that Riggs never reached for his knife,

which was later found in the decedent’s pocket. In addition, although defendant testified that he

was unhealthy, could not walk well, or defend himself, the surveillance video paints a different

picture. At no time during the altercation did defendant visibly struggle to walk. Further, although

defendant testified that he could not escape the situation, he and Riggs were standing in an open

parking lot, and defendant testified that he did not run away because he believed he had a legal

right to defend himself. On the basis of the evidence as a whole, the jury could conclude that the

prosecution presented sufficient evidence to disprove self-defense beyond a reasonable doubt.

Although the defense presented evidence in support of self-defense, conflicting evidence and

factual disputes are matters for the jury to resolve. Miller, 326 Mich App at 735. In sum, the

prosecution presented sufficient evidence for the jury to find defendant guilty of second-degree

murder.

II. JUDICIAL IMPARTIALITY

Defendant argues that the trial court pierced the veil of judicial impartiality, denying

defendant a fair trial. We disagree.

To preserve a claim of judicial impartiality, a defendant must raise the issue in the trial

court. People v Stevens, 498 Mich 162, 180 n 6; 869 NW2d 233 (2015); People v Jackson, 292

Mich App 583, 597; 808 NW2d 541 (2011). Defendant did not object to any of the alleged errors

by the trial court that he now raises on appeal. Therefore, this issue is not preserved.

“The question whether a judge’s conduct has denied a defendant a fair trial is a question of

constitutional law that this Court reviews de novo.” People v Swilley, 504 Mich 350, 370; 934

NW2d 771 (2019) (cleaned up). This Court reviews unpreserved constitutional issues for plain

error. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). “To avoid forfeiture under

the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was

plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763. “The

third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome

of the lower court proceedings.” Id.

“A trial judge’s conduct deprives a party of a fair trial if the conduct pierces the veil of

judicial impartiality.” Swilley, 504 Mich at 370 (cleaned up). “A judge’s conduct pierces this veil

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and violates the constitutional guarantee of a fair trial when, considering the totality of the

circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by

creating the appearance of advocacy or partiality against a party.” Id. (cleaned up). “This inquiry

requires a fact-specific analysis. A single inappropriate act does not necessarily give the

appearance of advocacy or partiality, but a single instance of misconduct may be so egregious that

it pierces the veil of impartiality.” Stevens, 498 Mich at 171. In Stevens, the Court instructed:

In evaluating the totality of the circumstances, the reviewing court should inquire

into a variety of factors, including the nature of the judicial conduct, the tone and

demeanor of the trial judge, the scope of the judicial conduct in the context of the

length and complexity of the trial and issues therein, the extent to which the judge’s

conduct was directed at one side more than the other, and the presence of any

curative instructions. This list of factors is not intended to be exhaustive.

Reviewing courts may consider additional factors if they are relevant to the

determination of partiality in a particular case. Moreover, the aggrieved party need

not establish that each factor weighs in favor of the conclusion that the judge

demonstrated the appearance of partiality for the reviewing court to hold that there

is a reasonable likelihood that the judge’s conduct improperly influenced the jury.

The reviewing court must consider the relevance and weigh the significance of each

factor under the totality of the circumstances of the case. [Id. at 172 (cleaned up).]

Further, “[i]n reviewing claims of judicial partiality, a reviewing court must first examine

the nature or type of judicial conduct itself.” Swilley, 504 Mich at 371 (cleaned up). “Improper

judicial conduct may come in many forms, including belittling of counsel, inappropriate

questioning of witnesses, providing improper strategic advice to a particular side, biased

commentary in front of the jury, or a variety of other inappropriate actions.” Id. at 371-372

(cleaned up).

Defendant first argues that the trial court improperly informed the jury that defendant had

been charged as a fourth-offense habitual offender. “In reviewing instructional-error claims, this

Court examines 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 Rosa, 322 Mich App 726, 738 n 6; 913 NW2d 392

(2018) (cleaned up).

After the jury was empaneled, the court read to the jury the initial jury instructions. After

reading the elements of each of the charges, the court stated:

The defendant is charged with Habitual Offender Fourth Offense Notice.

The defendant was previously convicted of three or more felonies or attempts to

commit felonies, and at least one of these crimes was a prior listed felony as defined

in MCL 769.126a.

The court, undoubtably recognizing it should not have read the habitual-offender notice to the jury,

stated nothing else regarding defendant’s status as a fourth-offense habitual offender or prior

convictions.

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It was clearly erroneous for the trial court to inform the jury that defendant had been

charged as a fourth-offense habitual offender. A defendant’s status as a habitual offender is merely

a sentence enhancement and not a substantive crime. People v Zinn, 217 Mich App 340, 345; 551

NW2d 704 (1996) (“Michigan’s habitual offender statutes are merely sentence enhancement

mechanisms rather than substantive crimes.”). Thus, there was no reason for the jury to be

informed of defendant’s status as a fourth-offense habitual offender. Moreover, it appears from

the record that the trial court’s statement was a mistake. The court had not read the notice to

intentionally inform the jury of defendant’s status as a habitual offender. It appears that the court

realized the mistake in reading the habitual-offender notice because the court stopped prior to

describing the qualifying felonies.

Nonetheless, because the court’s statement was clearly erroneous, defendant must establish

that the error affected the outcome of the proceedings. Carines, 460 Mich at 763. Defendant has

failed to establish that, but for the court’s error, the outcome of the proceedings would have been

different. Defendant contends that the trial court’s statement was particularly harmful because it

damaged defendant’s credibility, which was a central issue in this case. Although defendant’s

credibility was at issue, this was not a case based solely on the testimony of witnesses. Rather, the

surveillance video captured the incident, and the jury was able to see defendant’s actions.

Defendant admittedly armed himself with a gun, headed to the coney island, paced back and forth

inside of it, exited the coney island with the concealed gun in his hand, engaged Riggs, and shot

Riggs at close range when Riggs stood up after falling to the ground. Further, defendant made

numerous statements during his own testimony to cast doubt on whether he feared for his safety

when he shot Riggs. Defendant contended that he was “waiting on it to go down,” he waited for

Riggs to stand up before shooting, and he believed he had a right to shoot defendant under self-

defense laws. Although the court’s statement indicated to the jury that defendant had a criminal

history, the evidence, particularly the surveillance video of the whole altercation, provided ample

proof of defendant’s guilt such that the court’s statement did not affect the outcome of the

proceedings.

Further, the court did not inform the jury of what felonies or attempted felonies defendant

had been convicted. In addition, the court instructed the jury that it should not consider the court’s

instructions or the crimes with which defendant was charged as evidence. The court also instructed

the jury that it “must decide this case based only on the evidence admitted during the trial.”

“[J]urors are presumed to have followed their instructions.” People v Benton, 294 Mich App 191,

202; 817 NW2d 599 (2011). On the basis of the jury instructions as a whole, the jurors were

instructed of the charges and the evidence on which they were allowed to rely. Therefore, on the

basis of the record as a whole, defendant was not deprived of a fair trial.

Defendant also argues that the trial court improperly interrupted defendant numerous times

while testifying, which communicated to the jury that the trial court either did not believe

defendant or was bothered by his answers. Under MRE 611(a), the court has a duty to exercise

control of the proceedings:

The court shall exercise reasonable control over the mode and order of interrogating

witnesses and presenting evidence so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2) avoid needless

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consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.

The excerpts from the jury trial illustrate the court’s attempt to control defendant’s

testimony to help the jury ascertain the truth and to avoid the needless consumption of time. The

following are instances of the court interjecting that defendant references on appeal in support of

his argument:

[Defense Counsel]: And how often would you, did you see Kevin Riggs

high?

[Defendant]: Man, well I can tell you this. At one point and time [Riggs’s]

son had died and he got a wrongful death lawsuit for about—

[Defense Counsel]: I’m going to stop you there.

[Prosecutor]: Objection, Your Honor. That doesn’t have anything to do

with—

The Court: Strike that from the record.

[Defendant]: Okay, I’ll say this—

The Court: Wait, wait. Slow down, sir.

[Defendant]: Um-hum.

[The Court]: Slow down. Counsel, go ahead with your question.

* * *

[Defense Counsel]: The question to you is how often did you see him get

high?

[Defendant]: All of the time.

[Defense Counsel]: Okay. And did you have altercations with Kevin

Riggs?

[Defendant]: Yes, I did.

[Defense Counsel]: And how many altercations did you have with Kevin

Riggs?

[Defendant]: We would, we would, we would serious, get into some serious

arguments you know here and there because—

The Court. Sir, he asked you how many did you have?

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* * *

[Defense Counsel]: Excuse me. Were you expecting [Riggs] to come inside

of the coney island when you walked in?

[Defendant]: Man, let me tell you, I don’t—[Riggs] is unpredictable. You

don’t know if he going—

The Court: Sir, did you expect him to come in there, yes or no?

* * *

[Defense Counsel]: Okay. And when he walks up on you, how are you

feeling when he’s walking up on you?

[Defendant]: I’m—He [sic] trying to get close to me. I—

The Court: No, no, sir.

[Defense Counsel]: How did you feel—

The Court: How did it make you feel?

The court also interjected twice to prevent defendant from continuing to testify after he had

answered the question:

[Defense Counsel]: Okay. And after a result of that incident [sic], did you

fear Kevin Riggs?

[Defendant]: I had always feared Kevin Riggs because when Kevin

Riggs—

The Court: Alright, you have answered the question.

* * *

[Defense Counsel]: Okay. And you indicated at that point you got this

firearm why?

[Defendant]: Because I was very apprehensive.

[Defense Counsel]: Okay, apprehensive of what?

[Defendant]. And, and, and— About being caught you know with nothing.

The, the rest was in the air, man. You know I didn’t know if you know because he

got friends and stuff that get high and they do they little things to make they [sic]

money to get they [sic] drug money and, and, and a lot of time they going in people

pockets, you know what I’m saying. So I was very apprehensive about who was

going to come where you know because if I’m walking down the street and you got

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somebody driving by us or people walking by and they know I got certain stuff, I

don’t know—

The Court: Okay. He has answered the question. Next question?

* * *

[Defense Counsel]: Okay. And at a certain point do you see where Kevin

Riggs goes?

[Defendant]: Yeah.

[Defense Counsel]: Where does he go?

[Defendant]: Into his truck. I watched everything he did—

The Court: Okay, you have answered the question. Next question.

Defendant also references the two following examples to illustrate that the trial court also

improperly interjected during defendant’s cross-examination.

[The prosecutor]: Let me, let me stop you there. Are you able to physically

at this point if you—Are you physically able to box with him or fight with him?

[Defendant]: Man, let me tell you something. I, I don’t—

[The prosecutor]: Actually—

The Court: Sir, the question is—

[The prosecutor]: —it’s yes or no answer.

The Court: —can you physically box with him, yes or no?

[Defendant]: No, I can’t.

* * *

[The prosecutor]: And do you see at any point him go towards or reach for

this Bayonet he had?

[Defendant]: I seen the Bayonet when he fell. When he fell the Bayonet

was sticking out of his shirt. You could see it. It’s—I mean it’s kind of hard to

hide fifteen inches worth of metal.

[The prosecutor]: Now at a certain point did you think—

The Court. No, but the question is, the question was—

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[Defendant]: Yeah, I seen—

The Court: —did you see him ever go—

[Defendant]: Yes, sir.

The Court: —for the Bayonet?

[Defendant]: Yes, sir.

Upon review of the record, the court did not improperly interject during defendant’s

testimony. As illustrated from the excerpts, on multiple occasions, the court was attempting to

control defendant’s testimony because defendant was not answering the questions specifically

asked or providing miscellaneous information. Accordingly, the record illustrates that to ensure

there was a clear record for the jury to determine defendant’s innocence or culpability as to the

crimes charged, the court restricted the defendant to answering only the questions asked of him.

In addition, on multiple instances, the court interjected most likely to avoid the needless

consumption of time because defendant had already answered the question. The court had a duty

to ensure that the trial proceeded fairly and efficiently. The court did not improperly interject itself

in the proceedings. There is no indication that the court acted in an impartial manner.

Defendant also argues that the trial court improperly read the self-defense instruction, M

Crim JI 7.23(1), during the final jury instructions. M Crim JI 7.23 addresses past violent acts of

the complainant or decedent and provides:

[Specific Acts]

(1) There has been evidence that the [complainant/decedent] may have committed

violent acts in the past and that the defendant knew about these acts. You may

consider this evidence when you decide whether the defendant honestly and

reasonably feared for [his/her] safety.

[General Reputation]

(2) There has been evidence that the [complainant/decedent] may have had a

reputation for cruelty or violence. You may consider this evidence when you

decide whether it was likely that the [complainant/decedent] threatened to hurt the

defendant physically, and whether the defendant honestly and reasonably feared for

[his/her] safety.

When the trial court read the jury the final jury instructions, the court stated:

There has been evidence that the defendant (sic) may have committed

violent acts in the past and that the defendant knew about these acts. You may

consider this evidence when you decide whether the defendant honestly and

reasonably feared for his safety.

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There has been evidence that the decedent may have had a reputation for

cruelty or violence. You may consider this evidence when you decide whether it

was likely the decedent threatened to hurt the defendant physically and whether the

defendant honestly and reasonably feared for his safety.

In the first sentence, the court clearly erred by stating that “defendant” may have committed violent

acts in place of the “complainant” or “decedent.” However, because defendant failed to object to

this instruction, this Court reviews this issue for plain error.

Defendant has failed to establish that the court’s error affected the outcome of the

proceedings. Reviewing the jury instruction as a whole, the instruction conveyed to the jury that

it could consider Riggs’s prior violent acts. The first line of the instruction would make little sense

if defendant was to know of his own violent past. Moreover, there was no evidence that defendant

had committed violent acts in the past. Therefore, the instruction would serve little purpose under

the mistaken reading. Further, the second portion of the instruction highlights that the purpose of

the instruction was to inform the jury that it could focus on Riggs’s violent reputation and whether

defendant feared for his safety on the basis of this reputation. Moreover, the jury was given a

written copy of the jury instructions, which properly stated the instruction, and there is no

indication that the jury was confused about the instruction or whose acts it could consider.

Therefore, the trial court’s error did not affect the outcome of the proceedings.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that defense counsel provided ineffective assistance of counsel by failing

to request a voluntary manslaughter jury instruction. We disagree.

Defendant preserved his claim of ineffective assistance of counsel by filing in this Court a

motion to remand for a Ginther1 hearing. People v Abcumby-Blair, ___ Mich App ___, ___: ___

NW2d ___ (2020) (Docket No. 347369); slip op at 8. “Whether a defendant has been denied the

effective assistance of counsel is a mixed question of fact and constitutional law.” People v

Solloway, 316 Mich App 174, 187; 891 NW2d 255 (2016). “Generally, a trial court’s findings of

fact, if any, are reviewed for clear error, and questions of law are reviewed de novo.” Id. at 188.

However, because defendant did not move for a new trial or a Ginther hearing in the lower court,

and because this Court denied his motion to remand,2 no factual record was created in regard to

defendant’s claim of ineffective assistance of counsel. Therefore, our review is limited to mistakes

apparent on the record. Id.

In order to prevail on a claim of ineffective assistance of counsel, a defendant has the

burden of establishing that “(1) counsel’s performance fell below an objective standard of

reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability

that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d

1

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2

People v Golden, unpublished order of the Court of Appeals, entered December 17, 2020 (Docket

No. 353535).

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136 (2012). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden

of proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012) (cleaned

up). “Defendant must overcome the strong presumption that counsel’s performance was sound

trial strategy.” People v Dixon, 263 Mich App 393, 396; 688 NW2d 308 (2004).

Declining to request a jury instruction can be a matter of trial strategy. People v Dunigan,

299 Mich App 579, 584; 831 NW2d 243 (2013). An “all-or-nothing” defense in which defense

counsel declines to request instructions on a lesser offense and instead seeks an outright acquittal

is a legitimate trial strategy. People v Allen, 331 Mich App 587, 610; 953 NW2d 460 (2020),

vacated in part on other grounds by 953 NW2d 197 (2020). Further, requesting an instruction on

a lesser offense could have undermined defendant’s theory that he acted in self-defense and “may

[have] reduce[d his] chances of acquittal.” Id. “A failed strategy does not constitute deficient

performance.” People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008).

It was sound trial strategy not to request a voluntary manslaughter jury instruction. The

defense strategy was clearly to establish that defendant was acting in self-defense. Thus, by acting

in self-defense, defendant could have been acquitted of second-degree murder. By requesting an

instruction on a lesser offense, the jury could have found defendant not guilty of second-degree

murder but settled on the lesser offense of voluntary manslaughter. Therefore, defense counsel’s

strategy may have been the “all or nothing” approach, which was reasonable.

Moreover, the facts do not support a voluntary manslaughter instruction. “To prove that a

defendant committed voluntary manslaughter, one must show that the defendant killed in the heat

of passion, the passion was caused by adequate provocation, and there was not a lapse of time

during which a reasonable person could control his passions.” People v Mitchell, 301 Mich App

282, 286; 835 NW2d 615 (2013) (cleaned up). “[T]he degree of provocation required to mitigate

a killing from murder to manslaughter is that which causes the defendant to act out of passion

rather than reason.” Id. at 286-287 (cleaned up). “[I]n order for the provocation to be adequate it

must be that which would cause a reasonable person to lose control.” Id. at 287 (cleaned up).

Although Riggs punched defendant, there was no evidence that defendant responded by shooting

Riggs in the heat of passion. Rather, defendant clearly testified that he shot Riggs out of fear for

his life. Thus, defendant sought to establish that his actions were calculated and reasonable to

protect himself, not the actions of a person who had lost control. Therefore, there was insufficient

evidence to support a voluntary manslaughter instruction. Accordingly, defense counsel did not

provide ineffective assistance of counsel for failing to request a jury instruction on the lesser charge

of voluntary manslaughter.

In defendant’s Standard 4 Brief, defendant argues that trial counsel provided ineffective

assistance of counsel by failing to investigate Derek Booker as a defense witness. We disagree.

Defendant did not preserve this argument by filing a motion for a new trial or a Ginther

hearing in the lower court, People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014), or by

filing a motion to remand in this Court on this ground, Abcumby-Blair, ___ Mich App at ___; slip

op at 8. Therefore, this argument is reviewed for errors apparent on the record. Id. While defense

counsel’s failure to undertake a reasonable investigation may constitute ineffective assistance of

counsel, Trakhtenberg, 493 Mich at 51-52, “decisions regarding what evidence to present and

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whether to call or question witnesses are presumed to be matters of trial strategy, which [this Court]

will not second-guess with the benefit of hindsight,” Dixon, 263 Mich App at 398 (cleaned up).

Defendant contends that defense counsel provided ineffective assistance of counsel by

failing to investigate Booker. First, it was likely trial strategy not to call Booker as a witness. It

was clear Booker witnessed the shooting. He can be seen on the surveillance video. Boyd testified

that he accompanied her to the coney island, and he was on the prosecution’s witness list.

Therefore, defense counsel was likely aware of Booker as a potential witness but chose not to

pursue him as a defense witness. Further, defendant has failed to establish that he was prejudiced

by trial counsel’s decision not to call Booker as a witness. Even if Booker made a statement that

Riggs assaulted defendant, as defendant contends he did, it is unclear how Booker’s testimony

would have assisted the defense. There was surveillance video of the whole altercation. There is

no dispute that Riggs approached defendant in the parking lot, demanded money from defendant,

and then punched defendant in the face. Booker’s testimony was not necessary to establish that

Riggs punched defendant. Defendant does not assert that Booker had any knowledge about the

relationship between defendant and Riggs that would have assisted the defense in establishing self-

defense. Therefore, defendant has also failed to show that he was prejudiced by defense counsel’s

decision not to investigate or call Booker as a witness.

In defendant’s Standard 4 Brief, he also argues that defense counsel provided ineffective

assistance of counsel by failing to investigate whether Riggs tried to rob defendant. Defendant

failed to properly preserve this argument. Therefore, it is reviewed for errors apparent on the

record. Abcumby-Blair, ___ Mich App at ___; slip op at 8.

Is it unclear from defendant’s argument how additional evidence regarding Riggs’s intent

to rob defendant would have assisted the defense. Defendant testified that Riggs demanded money

from him and had the intention of robbing him. Boyd testified that she overheard Riggs demand

money from defendant. Evidence was introduced that Riggs had a bayonet on him when he

demanded money and punched defendant in the face. This evidence was clearly presented.

However, the jury still found that defendant did not act in self-defense. There is no indication that

additional evidence that Riggs tried to rob defendant would not have affected the outcome of the

proceedings. Therefore, defendant has also failed to establish that defense counsel provided

ineffective assistance of counsel on this ground.

IV. SENTENCING ERRORS

Defendant argues that he is entitled to resentencing because he was sentenced in part on

the basis of his refusal to admit guilt. We disagree.

Generally, “[s]entencing issues are reviewed by this Court for an abuse of discretion by the

trial court.” People v Sabin (On Second Remand), 242 Mich App 656, 660; 620 NW2d 19 (2000).

“A trial court abuses its discretion when it imposes a sentence that is not proportional to the

seriousness of the circumstances surrounding the offense and the offender.” Id. at 661. This Court

reviews a constitutional due process claim de novo. People v Schumacher, 276 Mich App 165,

176; 740 NW2d 534 (2007).

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“A court cannot base its sentence even in part on a defendant’s refusal to admit guilt.”

People v Conley, 270 Mich App 301, 314; 715 NW2d 377 (2006) (cleaned up). “However,

evidence of a lack of remorse can be considered in determining an individual’s potential for

rehabilitation.” People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007). This Court looks

to three factors to establish whether the sentencing court incorrectly considered a defendant’s

refusal to admit guilt: “(1) the defendant’s maintenance of innocence after conviction; (2) the

judge’s attempt to get the defendant to admit guilt; and (3) the appearance that had the defendant

affirmatively admitted guilt, his sentence would not have been so severe.” People v Payne, 285

Mich App 181, 194; 774 NW2d 714 (2009) (cleaned up).

During the sentencing hearing, defendant addressed the court. Defendant stated that he

deeply apologized to Riggs’s family. After apologizing to Riggs’s family, defendant continued,

stating that it was an absolute “travesty against justice” that Riggs’s family was led to believe that

he died over $5 when in fact, Riggs had set defendant up and was trying to rob him. Defendant

expressed that Riggs was a “crackhead” and a monster, who died with six drugs in his system.

Defendant stated that Riggs was “high and he was coming down off that high and he thought he

was going to keep getting high by attacking me and taking my stuff.” Defendant further stated

that he had brought the gun with him to the scene to protect himself, and then he asked

hypothetically, “when do I protect myself? At what stage and point do I have to accept abuse in

order to finally say I don’t want no more?” In response, the court stated:

Alright. Well [defendant], first of all, I had an opportunity to watch the tape

of what occurred with regard to this incident and well first of all, I would like to

put down that your statement there you show absolutely no remorse for your act.

And I think the jury got this verdict exactly right, and I didn’t see any self-defense

in this case whatsoever.

What I saw is you tracked this man down and shoot him and kill him for no

reason whatsoever, [defendant]. What I, also, see reviewing your Presentence

Report is a man that has thirteen felony convictions, has been in and out of jail and

prison repeatedly throughout his life, has twelve misdemeanors. Shows absolutely

zero remorse. And took a gun for no reason whatsoever and shot and killed [Riggs].

Shot him in the chest and shot him down for no reason. There was no reason this

had to happen. And what you did is you took away three children’s father, you

took away an uncle, brother. You took away his, the mother’s children from him

(sic). You took away a grandfather and you’ve, you’ve ruined this family, and I

think you’ve ruined your family, too. And it’s just, it’s just the selfishness that I

see in your life the entire [sic] when I read your life story it says to me that

[defendant] cares about one person and one person only, and that’s [defendant].

And this, this book is full of that.

Looking to the first factor, “the defendant’s maintenance of innocence after conviction,” at

the sentencing hearing, defendant maintained his innocence, expressing that Riggs had tried to rob

defendant, and defendant had a gun to protect himself. Looking to the second factor, “the judge’s

attempt to get the defendant to admit guilt,” at no time did the court try to get defendant to admit

guilt. The court’s reference to defendant’s lack of remorse did not appear to be a comment on

defendant’s refusal to admit guilt. Rather, it appeared to be more of a response to defendant’s

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selfish statements, which were focused almost completely on how he had been wronged. Looking

to the third factor, “the appearance that had the defendant affirmatively admitted guilt, his sentence

would not have been so severe,” there is no indication that the court would have sentenced

defendant to a less severe sentence if defendant had admitted guilt. To the extent the court

considered defendant’s lack of remorse, it was much more akin to a finding that defendant lacked

a potential for rehabilitation given his selfish behavior and extensive criminal record. Further, the

court implied that the specific facts of this case led to the court’s sentence. Defendant’s statements

at the sentencing hearing had no bearing on the facts of the case. Therefore, the court did not

sentence defendant based upon defendant’s refusal to admit guilt.

Defendant also argues that the trial court sentenced defendant on the basis of inaccurate

information and acquitted conduct. We disagree.

“A defendant is entitled to be sentenced by a trial court on the basis of accurate

information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). Further, “trial courts

cannot make factual findings at sentencing based on acquitted conduct.” People v Beesley, ___

Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 348921); slip op at 7 (cleaned up).

During the sentencing hearing, the trial court stated, “[w]hat I saw is you tracked this man

down and shoot him and kill him for no reason whatsoever.” Defendant contends that the trial

court’s statement reflects its finding that defendant plotted to kill Riggs, despite no such evidence

being admitted at trial. Accordingly, defendant argues that the court’s sentence was based upon

inaccurate information.

The court’s statement did not reflect its reliance on inaccurate information to sentence

defendant. Prior to making that statement, the court stated that it watched the surveillance video.

The court’s comment regarding defendant tracking Riggs down was likely based upon defendant’s

own testimony and his actions as seen on the video. Defendant went to the coney island with a

gun because he was apprehensive of Riggs, he paced inside the coney island, he continuously

looked out the front door, he walked outside, despite knowing that Riggs was outside, and he kept

a bandana over his gun until he shot Riggs. The use of the word “tracking” does not imply that

the court made findings that were not part of the record.

Further, defendant contends that the court’s statement illustrated that the court sentenced

defendant on the basis of acquitted conduct. The court’s comment did not imply that the court

sentenced defendant on the basis of acquitted conduct, i.e., premeditated murder. The jury

convicted defendant of second-degree murder. Thus, the jury found that defendant had the

requisite malice and was not acting in self-defense. As stated earlier, “[m]alice 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.” Baskerville, ___ Mich App at ___; slip op at 3. The court’s comments were

consistent with these findings. The court’s statement that defendant “tracked” Riggs down did not

imply that defendant committed premeditated murder or that the court sentenced defendant on

such a belief. The court could have based its statement upon a finding that defendant intended to

see Riggs at the coney island, and that once the confrontation between defendant and Riggs began,

defendant intended to kill Riggs, intended to cause great bodily harm, or intended to do an act in

wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause

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death or great bodily harm. Therefore, the court’s statement was consistent with the jury’s finding

of second-degree murder and did not insinuate that defendant committed premediated murder.

Defendant also argues that his 60-year minimum sentence for second-degree murder is

unreasonable and disproportionate because it is a de facto life sentence. We disagree.

“If a minimum sentence is within the appropriate guidelines sentence range, the court of

appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring

the sentencing guidelines or inaccurate information relied upon in determining the defendant’s

sentence.” MCL 769.34(10). “In [People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015)],

the Supreme Court held that Michigan’s sentencing guidelines violated the Sixth Amendment right

to a jury trial, and it remedied the constitutional infringement by declaring the guidelines advisory

only.” People v Posey, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 351834); slip

op at 8. “Lockridge did not alter or diminish MCL 769.34(10).” Id. at ___; slip op at 8 (cleaned

up). Therefore, “when a trial court does not depart from the recommended minimum sentencing

range, the minimum sentence must be affirmed unless there was an error in scoring or the trial

court relied on inaccurate information.” Id. at ___; slip op at 8 (cleaned up).

Defendant’s minimum sentencing guidelines range is 26¼ years to 87½ years’ (315 to

1,050 months’) imprisonment. Therefore, defendant’s minimum sentence of 60 years’

imprisonment for second-degree murder is within the minimum sentencing guidelines range.

Defendant does not argue that there was an error in scoring, and defendant’s argument that the trial

court relied on inaccurate information lacks merit. Because defendant’s minimum sentence for

second-degree murder is within the minimum sentencing guidelines range, this Court must affirm

his sentence.

Affirmed.

/s/ David H. Sawyer

/s/ Mark T. Boonstra

/s/ Michelle M. Rick

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