Petition for Writ of Certiorari — Nathan Leon Branham, Petitioner v. Michigan

V

;

Branham v. Michigan

Appendix A

® Warning

As of: July 15, 2022 5:15 PM Z

People v. Branham

Court of Appeals of Michigan

June 3, 2021, Decided

No. 350452

Reporter

2021 Mich. App. LEXIS 3456 *; 2021 WL 2284515

PEOPLE OF THE STATE OF MICHIGAN, PlaintiffAppellee, v NATHAN LEON BRANHAM, Defendant-

Per Curiam.

Appellant.

Notice: THIS IS AN UNPUBLISHED OPINION. IN

ACCORDANCE WITH MICHIGAN COURT OF

APPEALS RULES, UNPUBLISHED OPINIONS ARE

NOT PRECEDENTIALLY BINDING UNDER THE

RULES OF STARE DECISIS.

Subsequent History: Reversed by, Remanded by,

Leave to appeal denied by People v. Branham, 2022

Mich. I FXIS 551 (Mich.. Mar. 25, 2022)

Defendant was convicted, after a jury trial, of firstdegree premeditated murder and manufacturing

marijuana. Regarding the murder charge, defendant

claimed self-defense, arguing that the intruder whom he

struck with a baseball bat had acted in a crazed manner

because of the amount of methamphetamine in his

system. The jury rejected the defense of self-defense

defendant of both first-degree

and

convicted

premeditated murder and manufacturing marijuana.

Defendant appeals his murder conviction, which we

affirm.

Prior History: [*1] Kalamazoo Circuit Court. LC No.

2018-001812-FC.

Peoole v. Brenham. 2020 Mich. Add. LEXIS 4758 (Mich.

Ct. Ado.. July 28. 2020)

Core Terms

trial court, defense counsel, self-defense, intruder, jury

instructions, trial counsel, marijuana, kill, ineffective,

methamphetamine, interview, instructions, defendant

argues, baseball bat, backyard, closing argument,

sensors, night, weapon, blood, marijuana plant,

recording, hitting, lesson, teach, use deadly force, great

weight, dog kennel, new trial, premeditation

Counsel: For PEOPLE OF Ml, Plaintiff-Appellee: MARK

A.HOLSOMBACK.

For BRANHAM NATHAN LEON, Defendant-Appellant:

MARY A.OWENS.

Judges: Before: SWARTZLE, P.J., and MARKEY and

TUKEL, JJ.

Opinion

I. BACKGROUND

This case arises from the victim’s death during the

course of his apparent attempt to steal marijuana plants

from defendant's yard. A struggle ensued between

defendant and the would-be thief; defendant repeatedly

punched the intruder and struck him several times with

a baseball bat. The intruder suffered blunt-force trauma

to the head, and he died a few days later. Defendant

admitted that he had punched the victim repeatedly in

the face and that he [*2] had struck the victim with a

baseball bat, but claimed that he had acted in selfdefense.

A. THE POLICE INVESTIGATION

At trial, David Malek testified that he lived near

defendant's home. Malek recalled that, in the earlymorning hours of September 30, 2018, he was outside

on his back deck when he heard a "screetch" or

"scream” that lasted about 15 seconds. Malek could not

identify the source of the sound; he did not know

whether the sound was made by an animal or a human,

and he did not hear any words, but he felt that the

sound indicated "something in distress.” Malek admitted

that he did not see anyone getting assaulted, but he

knew that the sound was "out of the ordinary." Although

Page 2 of 16

2021 Mich. App. LEXIS 3456, *2

Malek testified that he heard the sound at about 12:30

or 1:00 a.m., the prosecutor impeached Malek's

testimony with his earlier statement to police that he

heard the sound at approximately 2:30 or 3:00 a.m.

Defendant's uncle, John Allegretti, testified that he

received a phone call from defendant on September 30,

2018 at 3i9 am. Allegretti testified that he heard "[a]

lot of yelling, commotion, screaming"; he heard

defendant

saying

"motherfucker";

and

he

heard

traumatic injury being—finding them lying on their

back with their legs straight out and only their left

arm slightly bent. I felt something significant had

transpired here but the way that the body was lying

at the time didn't give deference [sic] to what might

have happened.

Sergeant White testified [*5] that he spoke with

defendant, who was "very upset, he was very exerted

his eyes were wide, he was talking very quickly, and

wooden baseball bat.

conversation occurred during the call. Because Allegretti

believed that defendant and his wife were fighting, he

qot dressed and traveled to defendant's, house, which

about one mile away. Arriving at defendant's house

was

10 to 15 minutes after the phone call, Allegretti saw a

"right next to the side door" of defendant’s house,

man

"laying in kind of a fetal position but on his knees .

and he was moaning." Allegretti saw defendant

"standing maybe a few feet away" from the injured man.

<■

Defendant was "standing there with a baseball bat,

wearing only "[b]oxer shorts and a robe." Allegretti

testified that he looked at defendant and said, "what the

fuck, what the fuck, Nathan?" Defendant "just kinda

stared at [him] for a minute," and then defendant said,

"I’m getting sick." Allegretti did not attempt to touch the

man lying on the ground, but he said "hey dude, dude,

can you hear me, to that effect and he was just moaning

and he didn't give me no response." Allegretti told

defendant to call the police, and then he left the scene

because he "didn't want to be a part of it. On crossexamination, [*4] Allegretti admitted that he did not

know the man lying on the ground, he did not witness an

assault, and he did not know who had assaulted whom

and his entire hair and body were wet as if he had

gotten into a bath or a shower Sergeant White asked

defendant why he was wet, and defendant said he had

an illness that "causes him to throw up so given this

situation, he began to throw up and the only way to calm

that illness or sickness was to quickly take a bath.

first.

found by another police officer, inside the dog kennel. In

addition, police found a work glove inside a dog kennel

that matched a work glove that was on the victim's body

when police arrived. After the victim was transported to

the hospital for medical treatment, police officers

inventoried the victim’s clothing, and discovered that he

Sergeant Michael White of the Kalamazoo Township

Police Department (KTPD) testified that he was

dispatched to defendant's house at about 3:40 a.m. on

September 30, 2018. When he arrived, Sergeant White

found the victim "lying on the ground facing face up very

near the doorway" of defendant's house. He noticed

immediately that the victim was injured and bleeding

profusely. Sergeant White also stated that, at first

glance, it looked to him like the victim's body had been

"staged" near the door to defendant's house because

"he was lying on his back with his legs straight out."

Sergeant White explained:

[HJaving 34 years of experience and unfortunately

been involved in several homicides, it's very

unusual for somebody to have suffered this type of

a search warrant for

Later mar oay, due. v

the property, Sergeant White entered the backyard of

defendant's home. Inside a wooden-stockade fence, he

found two chain-link dog kennels that contained

marijuana plants. Sergeant White observed that one of

the dog kennels had been entered, and that a marijuana

plant inside that dog kennel was "all broken down as if

something had fallen into it." Sergeant White also

observed "a large amount of. blood" near the marijuana

plant, and he concluded that an assault had occurred in

that location.

Sergeant White admitted that he did not ask

defendant [*6] whether the victim had been in

possessjon 0f a weapon. Although he did not remember

seejng any w-ire cutters on the night of the incident,

Sergeant white admitted that a pair of wire cutters was

had a knife in his pocket.

^pD Detective Jeff Jerzyk testified that he received a

^

a.m. on September 30, 2018, and was

gsked tQ draft an appjicatipn for a search warrant for

defendant's house so that police could search for any

evidence re|ated to the incident. Detective Jerzyk

testified that, once police obtained the search warrant,

thgy found that defiant's backyard contained a "pretty

typical outdoor marijuana grow" operation, that an

Page 3 of 16

2021 Mich. App. LEXIS 3456, ‘6

enclosed porch of defendant's house contained a

"processing room" where marijuana was dried, and that

police found locations in the house containing an "indoor

grow room" and a "cloning and vegetation room.

The [*7] parties stipulated to the admission of a lab

report concluding that samples of plant materials taken

from defendant's house tested positive as marijuana.

After the prosecutor completed his questioning of

Detective Jerzyk, during a conference at the bench

(which was presumably inaudible to the jury, and some

of which was not captured in the transcript), defense

counsel complained to the trial court that the prosecutor

was portraying defendant as "a drug dealing murderer

protecting his drug operation." After some discussion at

the bench about the applicable marijuana laws, defense

counsel stated that he would "stipulate" to the marijuana

charge. The trial court told defense counsel that he

could cross-examine Detective Jerzyk as. he wished, but

expressed an opinion that defense counsel's proposed

line, of questioning regarding marijuana-user cards was

"very, very dangerous," and that it might backfire.

After the bench conference concluded, defense counsel

then proceeded to cross-examine Detective Jerzyk, who

admitted that defendant had a medical-marijuana card

that allowed him to possess 12 marijuana plants. The

detective also testified that he was only asked to

"explain the basics of an [*8] indoor marijuana and an

outdoor marijuana grow," and that he was making no

connection between the growing of marijuana and the

murder charge. On redirect examination, Detective

Jerzyk stated that defendant was not in compliance with

the Michigan Medical Marijuana Act on the date in

question.

Michigan State Police Detective Lieutenant Jeff Crump

testified that he arrived at defendant's home at about

6:55 a.m. on the date of the incident, and that he

performed crime-scene-investigation duties. Detective

Lieutenant Crump was informed that the home

contained a marijuana-grow operation and that the

homeowner had beaten someone using a baseball bat.

He took photographs of the baseball bat, and he noticed

that there was "blood all around it towards the end of the

bat." Other than the bat, he found no weapons at the

scene.

Detective Lieutenant Crump testified that he looked

around for things that might be pertinent to his

investigation. He observed a motion detector on top of

the backyard fence. In addition, he noted that "there

were other motion detectors on the inside of the fenced

area that you can't see from the outside." Those motion

detectors were all trained on the location where the [*9]

marijuana was growing. He did not see any cameras.

Inside the backyard fence, the detective saw two

separate areas that were fenced in with chain-link fence.

The gate to one of those areas was still locked, but the

gate to the other area was open. Inside the open gate,

he observed "a substantial amount of blood" near the

base of a broken-down marijuana plant. In addition, he

found blood on a post located next to the broken plant,

and that blood was about 3 or 4 feet off the ground. The

detective observed a glove next to the gate of the dog

kennel, as well as a baseball cap, a lighter, and a pair of

wire cutters. Next to the door of defendant's home, he

found some clothing, a bloody towel, and a small pool of

blood. In addition, he observed a trail of blood along the

south side of the house that led to the spot where he

found the clothing and towel. The detective admitted

that did not see any drag marks, but stated that the

grass and the recent rain might have prevented him

from seeing that type of evidence.

KTPD Officer Brandon Hambright testified that he was

called to defendant's home and assigned to canvass the

neighborhood. He testified that he talked to Malek, who

stated that he [*10] had heard a noise, when he was

sitting on his back porch, at about 2:30 a.m. Officer

Hambright later went to the police station to take

photographs of defendant; he noticed that defendant

had slight scratches on both of his forearms, a scratch

on his foot, redness around his neck, and knuckles that

were swollen slightly. After defendant was inteiviewed

by other officers, Officer Hambright allowed defendant

to use the bathroom. According to Officer Hambright,

while defendant was in the bathroom, "he was talking

and he indicated that he didn't want to hurt the man, he

just wanted to teach him a lesson." Officer Hambright

admitted that he did not ask defendant whether the

victim had been in possession of a weapon.

KTPD Detective Georrgeann Ergang testified that she

arrived at defendant's house after the victim had been

transported to the hospital. She met with defendant and

his wife inside their house, and asked defendant to

come down to the police department to speak with her.

Defendant agreed to do so, and he went to the police

department voluntarily. According to Detective Ergang,

defendant stated that he had a medical-marijuana card,

that he grew marijuana in his backyard for his own [M1]

consumption, and that he "sometimes would sell to

family and friends."

Page 4 of 16

2021 Mich. App. LEXIS 3456, *11

According to Detective Ergang, defendant stated that

his wife had noticed that "someone had tampered with

the backyard marijuana grow about a week prior" to the

incident. Defendant gave the detective consent to

search his cell phone, and she found text messages

indicating that defendant was selling marijuana,

Defendant told her that he had called 911 earlier that

day. Detective Ergang's search of defendant's cell

phone indicated that he had called Allegretti before he

called 911; the phone call to Allegretti lasted 29

seconds, and the phone call to 911 lasted over six

minutes.

According to Detective Ergang, defendant stated that he

did not know if the victim had either a gun or a knife,

Although the interview lasted for almost two hours,

defendant never made any statement indicating that he

believed that the victim had a weapon. At the time of the

interview, the detective was unaware that a knife had

been found in the victim’s pocket. From her subsequent

review of reports prepared by other officers, Detective

Ergang learned that police retrieved from the victim's

clothing a lighter, a wallet, some change, and a

silver [*12] knife. The knife was closed and located in

the victim's pocket.

According to the detective, during the interview,

defendant described the victim's stature and age, and

"talked about how he overpowered him and he was

stronger than" the victim. The trial court admitted into

evidence a portion of the interview recording. The

prosecutor played that portion of the recording for the

jury, and it was transcribed into the record. In the

recording, the detective asked defendant if the victim

had landed any "really good hits" anywhere on

defendant’s body. Defendant stated that the victim did

not and that "he really didn’t have a chance to, I was

holding on to him, you know, so I was overpowering him

so much." Defendant also stated that he was "a really

strong guy" and stated, "I'm very powerful so that dude

had no chance; as little as he was, he had no chance."

Defendant further explained that the victim had "tried to

rush me, you know, he tried to get me hooked but he

couldn't, there was no way. He was just too little."

Defendant also denied that he was bleeding from any

injuries sustained during the fight with the victim.

On cross-examination, defense counsel attempted to

question Detective [*13]

Ergang regarding other

statements that defendant made during the interview.

The prosecutor objected on hearsay grounds. The trial

court sustained the objection, but noted that defense

counsel had the right to play the recording of the entire

interview for the jury, if he wished to do so. Defense

counsel stated that he had not reviewed the recording in

a while but requested a recess to do so before the

parties excused the detective as a witness. The trial

court stated that defense counsel could review the

recording over the jury's lunch break. After the jury left

the courtroom, the trial court again reminded defense

counsel that if he "wanted to put in the entirety of the

tape, that can be played." And, after the prosecutor’s

witnesses finished for the day, at a bench conference,

the trial court told defense counsel, "I know you do have

the opportunity to play the tape or call a witness out of

order, if you'd like, I would allow that." Defense counsel

stated that he would wait until the next day to provide

defendant's proofs. After the jury left the courtroom, the

trial court and defense counsel placed the following on

the record:

The Court: . . . The jury's left the courtroom. Do

you [*14] want to put on the record that I met with

counsel in chambers before the break, after the

lunch break and then I called counsel to the bench

for a bench conference outside of the hearing of the

jury before I let them go. We had talked about

perhaps taking the defense witness or having the

defense play the entire recording as an exhibit in

the presence of the jury for them.

It's my understanding [defense counsel] that you

thought about this, consulted with others, you

decided that you were not going to play the entire

interview, is that correct?

[Defense Counsel]: That's correct.

The Court. All right. But you were afforded an

opportunity to do that if you desired?

[Defense Counsel]: I was.

B. DEFENDANTS PROPOSED EXPERT WITNESS

Outside of the jury's presence, the trial court addressed

the prosecutor's motion regarding the testimony of

defendant's proposed expert witness, Dr. Dennis

Simpson. The trial court noted that the prosecutor had

served defendant with a discovery request regarding

any expert witness who might be called to testify by the

defense. The discovery request addressed the

disclosure of the curriculum vitae of any such witness,

as well as a written description of the substance [*15]

of the expert's proposed testimony. The trial court stated

that defense counsel did not timely respond to the

discovery request, but on either the day of trial or the

day before that, defense counsel had notified the

Page 5 of 16

2021 Mich. App. LEXIS 3456, *15

prosecutor that he intended to call Dr. Simpson as an

expert witness and indicated that Dr. Simpson would

testify regarding the effects of methamphetamine on the

human body. The trial court found that defense counsel

had failed to provide the witness information in a timely

fashion, as required by MCR 6.201(A) and MCL

767.94aCI). Therefore, the trial court granted the

prosecutor’s motion and prohibited defendant from

calling Dr. Simpson as a witness.

C. THE MEDICAL EXAMINER

On the final day of trial, the prosecutor called Dr.

Elizabeth Douglas, the deputy medical examiner for

Kalamazoo County, and the trial court qualified her as

an expert in forensic pathology. Dr. Douglas testified

that she performed the autopsy on the victim. Based on

her examination, she concluded that the victim had

suffered "multiple blunt force injuries" and "lethal head

trauma." In her opinion, the "manner of death” was

homicide. Dr. Douglas stated that the victim's injuries

included abrasions and contusions on his leg, an [*16]

abraded contusion on his right lower abdomen, a

contusion on his lower back near the right hip, a rib

fracture, an abrasion and contusion on the midline chin,

a laceration above the left eyebrow, a fracture of the

right jaw and left cheekbone, a laceration to the back of

the head, and a depressed fracture of the skull. Dr.

Douglas opined that the facial fractures and the skull

fracture were caused by separate impacts, and she

concluded that the victim suffered either four or five

separate blows to the head. Dr. Douglas testified that,

after receiving these types of blows to the head, a victim

"might still be conscious but I would imagine they would

be seeing stars and probably a little dazed if they were

conscious at all." She testified that, after receiving even

one of these blows to the head, the victim "would not be

terribly effective at doing'much of anything." Dr. Douglas

singled out the depressed fracture of • the skull,

describing it as a "significant injury" that "extended into

the base of the skull," and concluded that this injury took

"a lot of force" to inflict. She further testified that "head

wounds bleed a lot so I would expect that there would

be a fair amount of blood [*17] loss associated with"

that injury.

According to Dr. Douglas, the toxicology report revealed

that the victim's blood contained 249 nanograms per

milliliter of methamphetamine. When the prosecutor

asked whether she was able to describe what impact

this amount of methamphetamine would have had on

the victim, Dr. Douglas stated:

So drug toxicity is a little bit of a tricky thing.

Toxicity is a combination of an individual's

vulnerabilities and tolerances and the level of

drugs. So it's hard for me to look at one value and

say this level of 249 nonograms per mil [sic] will

always produce these features in everybody; it just

sort of depends on how experienced a user

somebody is. And there are a lot of idiosyncrasies

to it so no, I can't say much about it other than it

was there.

On cross-examination, defense counsel inquired further

about the amount of methamphetamine in the victim’s

system. Dr. Douglas admitted that there was a

"significant" amount of methamphetamine in the victim's

system, but stated that interpreting the impact of the

drug on the victim's actions was "a little bit tricky"

because it involved "an interplay between individual

vulnerability and the level of drugs." She stated [*18]

that "all meth is bad meth" because “there’s no safe

level for it." She admitted that methamphetamine was a ■

stimulant and that stimulants affect different individuals

in different ways. She also admitted that "people can

exert very impressive levels of strength when they're

under the influence" of methamphetamine, including

"superhuman feats" of strength. As Dr. Douglas testified:

[Defense Counsel]: All right. What I'm asking you is

if I’m hitting a guy that's—I’m in a fight with a guy

and he's propped up on meth, the blow that you

testified to that would cause one of those injuries

may not have the same effect on him as it would a

sober person? So in other words, if l hit a guy

propped up on meth, it might not affect him the

same way as it affects a sober person, correct?

[Dr. Douglas]: I think that's fair.

[Defense Counsel]: Okay. And it might not slow him

down as much as it would a sober person, correct?

[Dr Douglas]: l think that's fair as well.

[Defense Counsel]: And he could continue to fight

more than a sober person, correct?

[Dr Douglas]: For some of those injuries, yes. The

one where there's fractures into the base of the

skull, probably not.

***

[Defense Counsel]: —to a lay person [*19] that's in

a fight with a guy that's propped up on meth, do you

think there'd be any—any visual difference, in other

words, like that something is propping this guy up,

I'm hitting him and he's not going down?

Page 6 of 16

2021 Mich. App. LEXIS 3456, *19

[Dr. Douglas]: Yeah, in [sic] so in cases of excited

delirium, that is—that's been reported so yeah,

people seem—will sometimes, yeah, keep going

when they should have been felled by an injury,

they can stay up—

[Defense Counsel]: All right.

[Dr. Douglas]: —in some contexts.

On redirect examination, Dr. Douglas testified that no

methamphetamine is good methamphetamine. And it

may be somebody is okay with it one day and then

they're tweaking the next day. I can't really say." The

prosecutor also clarified Dr. Douglas's testimony as

follows:

[The Prosecutor]: Doctor, you said—again, back

you [sic] answered that some of [defense counsel's]

questions that it's possible that say someone would

notice that this person that someone on meth would

appear crazed and appear very different. Also

possible that they wouldn’t appear any different at

ail?

[Dr. Douglas]: They might just appear agitated as

opposed to very erratic. There's a spectrum of

behavior and I don't know where [the victim]

fell [*20] on that.

[The Prosecutor]: So he could be anywhere from

just a little off to like you said crazed—

[Dr. Douglas]: Or at least psychotic, yeah, I don’t

know where he was.

Finally, on recross examination by defense counsel, Dr.

Douglas admitted that the "best evidence" of how the

victim was impacted by the methamphetamine in his

system would be the observations from someone who

personally saw how the victim was acting on the night of

the assault.

D. DEFENDANT'S TESTIMONY

After the prosecutor rested his case, defendant testified

in his own defense. Defendant explained that he was 28

years old, and that he lived with his wife, son, and

mother-in-law. On the night in question, his wife was

present with him in the home, along with their 16-monthold son and his two nieces. Defendant recalled going to

bed for the night between 11:00 p.m. and midnight, and

stated that he, his wife, and his son were all sharing a

bedroom that night.

Defendant testified that he was a "light sleeper" and that

he was awakened by a noise. Although he admitted that

he had installed motion sensors in his backyard, he

denied that he was awakened by the sensors that night;

he stated that it was raining, and that "the motion [*21]

sensors usually are defective when it's raining." When

he woke up, defendant was wearing only boxer shorts.

Defendant testified that, after checking on his nieces to

see that they were still asleep, he allowed his dog to go

outside. When he opened the exterior door to let the

dog out, he noticed that the backyard gate was open.

When he walked over to the backyard gate, he noticed

that the door to one of the dog kennels was open, about

six or seven feet away from the backyard gate.

Believing that a deer might have entered the dog kennel

to eat his marijuana plants, defendant went to

investigate:

And so I go in there, l walk about five feet into the

kennel and a guy jumps up and it scared the hell

out of me, excuse my language, scared the hell out

of me and l jumped and said what the fuck. And this

guy says I didn't steal nothing. And then suddenly

attacks me, just jumps right on me, starts swinging.

And I notice something in his hand, I wasn't for sure

what it was, it might have been a knife or a gun, I

just seen a little shine to it.

Defendant claimed that he grabbed the intruder's hand

that contained the potential weapon, and that he started

punching the intruder in the face as hard [*22] as he

could. Defendant testified that he was "scared as hell"

and that the intruder "just kept struggling with me and

would not go down. He was screaming things like I'll kill

you, bitch, fuck you, things of that nature."

Defendant testified that he and the intruder "ended up

on the ground for a second," and that defendant put his

knee into the intruder's ribs "very hard." Defendant

continued:

And then I got up to walk out of the kennel and he

jumps on my back and puts me in a headlock. I

then grab his arm and kind of maneuver out of the

headlock and when I did that, I grabbed, you know,

I had a hold of his arms.

And my wife suddenly appeared in the kennel and

was whacking him with a baseball bat. And she

roughly hit him, I don’t know, about two to five

times. So as she was hitting him, he would not go

down. He like had some superhuman strength or

you know something like that, he was psychotic,

very psycho, very psychotic. He would not go down.

Defendant admitted that he was "bigger than the guy,"

and that he was "stronger than him," but denied that he

.

Page 7 of 16

2021 Mich. App. LEXIS 3456, ‘22

was overpowering the intruder, stating that he couid not

get the intruder to stop. Defendant claimed that,

because the intruder "wouldn’t [*23] go down while my

wife was hitting him ... I reached to grab the bat from

my wife." Defendant testified that he instructed his wife

"to go back to the house" because he was worried about

his son.

Defendant testified that, as he took the baseball bat

from his wife, the victim slipped out of his hands and

grabbed a green stake that was propping up one of

defendant’s marijuana plants. Defendant testified that he

hit the intruder "in the head and arms" with the baseball

bat, and that he saw the victim drop to his knees.

Defendant stated that "l remember swinging as hard as I

could," hitting the intruder in the jaw and causing the

intruder to fall onto one of the plants. Defendant claimed

that he then began to walk away "to get a phone,” and

the victim walked out of the fenced backyard, "started

stumbling," and then fell to his knees, while moaning

and groaning.

Defendant testified that his wife brought him a cell

- phone and that he called Allegretti to "see what to do."

Contrary to his uncle’s testimony, defendant claimed

that he asked Allegretti to come to his house. Defendant

testified that the intruder started to get up, and that

defendant pushed him down with his foot. According to

defendant, [*24] his wife screamed at him to stop,

"thinking, you know, I was hurting him or something."

Defendant testified that he told his wife, "I'm holding him

down so he don't fucking go in the house." Defendant

also testified that he had lost his glasses during the

altercation with the intruder, and that he instructed his

wife to watch the intruder while he looked for his

glasses. Defendant recalled that he walked back to the

dog kennel and grabbed both his glasses and the

baseball bat, and then returned to the side door of the

house.

Defendant stated that Allegretti arrived at his house

shortly thereafter, and recalled that he was feeling

nauseous when Allegretti arrived. Defendant explained

that he suffers from "cyclic vomiting syndrome" that

causes him to vomit violently if he lacks sleep, suddenly

wakes up, or his adrenaline pumps too much. According

to defendant, he told Allegretti that he did not know what

to do and that he was starting to get sick, and Allegretti

told him to call the police. Defendant testified that he got

in the shower to prevent himself from vomiting, and that

he called 911 “from inside the shower."

Defendant denied knowledge of who had burglarized his

marijuana operation £*25] the prior week, and denied

having any idea that an intruder was going to burglarize

him that night. Defendant also denied taking a weapon

with him when he went out to his backyard, and claimed

that he was "suddenly" and "violently attacked."

Defendant stated that he was protecting his family and

himself. Defendant testified that he was worried that if

the intruder got past him, the intruder would get to his

wife and child, and that "there was no telling what this

guy would do." Defendant reiterated that he was

stronger than the intruder, and agreed that the intruder

"should have stayed down" when defendant hit him.

On cross-examination, defendant admitted that he never

told the 911 operator, Sergeant White, Officer

Hambright, or Detective Ergang that the intruder had a

weapon had threatened to kill him, had jumped on his

back, had put him in a headlock, or had grabbed a plant

stake. Defendant admitted that he gave a voluntary

interview to Detective Ergang. When asked if he told the

detective that the victim said, "I'm going to kill you,

bitch," defendant testified that he might have told the

detective that the intruder was "throwing verbal threats."

Defendant denied ever saying that-[*26] he wanted to

teach the intruder a lesson, and denied telling police

that the alarm on the motion sensors woke him up that

night. On redirect examination, defendant testified that

none of the police officers he spoke with on the night of

the assault asked him if the intruder had a weapon.

Further, defendant insisted that he was suddenly and

violently attacked when he went outside to look at his

dog kennel and that a burglar jumped on him.

E. JURY INSTRUCTIONS AND CLOSING

ARGUMENTS

After the defense rested, and outside the presence of

the jury, the trial court explained that the prosecutor and

defense counsel had met with him in chambers to

discuss the jury instructions:

[The Court]: Thank you. I want to place on the

record that l met, after I allowed the jury to go to

with the lawyers in chambers. We

lunch

preliminarily discussed jury instructions. The

lawyers went to lunch.

We came back; I was presented with new jury

instructions that comported mostly with what we

talked about. I then worked with the lawyers in

chambers; we crafted about three—or corrected

about three or four jury instructions to comport with

the facts of the case. It's my understanding that the

packet of jury instructions [*27] as it currently

Page 8 of 16

2021 Mich. App. LEXIS 3456, *27

exists meets with the satisfactions of both of the

parties, is that correct?

[The Prosecutor]: That's correct, you’re [sic] Honor.

[Defense Counsel]: It is, your Honor.

[The Courfj: All right. And I will give you both an

opportunity as—after I have read those into the

record and to the jury to object or ask for additions,

deletions or corrections.

The focus of defense counsel's closing argument was

the doctrine of self-defense. Defense counsel told the

jury that this case presented "one of the clearest cut

cases of self-defense I've ever seen." Defense counsel

argued that defendant was "at home sleeping with his

wife and toddler when he's suddenly confronted with a

violent act in his boxer shorts and rain." Defense

counsel also reminded the jury of Dr. Douglas's

testimony that a person who has methamphetamine in.

their system can appear to have "superhuman strength"

and can "act very psychotic." Defense counsel

continued:

I asked her the last question, who would be in the

best position to testify as to how the person was

acting? The person who was observing it. Who is

the only person in this room that observed [the

victim] acting the way he was? That guy

[defendant], at 3:30 [*28] in the morning in his

boxer shorts, that guy.

***

You'll have the toxicology report, you'll have the

pathologist's report, study it, remember her

testimony. She's got no dog in this fight. I didn't put

those words in her mouth, she came up with them.

Superhuman strength, psychotic behavior, that's

what this guy was exhibiting when he was

burglarizing my client's home.

After closing arguments, the trial court then read to the

jury the instructions that both the prosecutor and

defense counsel had approved. As pertinent to the

issues raised on appeal, the trial court instructed the

jury regarding the defense of self-defense, as follows:

The defendant claims that he acted in lawful selfdefense. A person has the right to use force or

even take a life to defend himself under certain

circumstances. If a person acts in lawful selfdefense, that person's actions are justified and he is

not guilty of murder or voluntary manslaughter.

You should consider all the evidence and use the

following rules to decide whether the defendant

acted in lawful self-defense. Remember to judge

the defendant's conduct according to how the

circumstances appeared to him at the time he

acted.

First, at the time he acted, [*29] the defendant

must have honestly and reasonably believed that

he was in clanger of being killed. If the defendant's

belief was honest and reasonable, he could act

immediately to defend himself even if it turned out

later that he was wrong about how much danger he

was in. In deciding if the defendant's belief was

honest and reasonable, you should consider all the

circumstances as they appeared to the defendant

at the time.

Second, a person may not kill or seriously injure

another person just to protect himself against what

seems like a threat of only minor injury. The

defendant must have been afraid of death. When

you decide if the defendant was afraid of one or

more of these, you should consider all the

circumstances: the condition of the people involved,

including their relative strength, whether the person

[sic] the other person was armed with a dangerous

weapon or had some other means of injuring the

defendant, the nature of the other person's attack or

threat, whether the defendant knew about any

previous violent acts or threats made by the other

person.

Third, at the time'he acted, the defendant must

have honestly and reasonably believed that what

he did was immediately necessary. [*30] Under the

law, a person may only use as much force as he

thinks is necessary at the time to protect himself.

When you decide whether the amount of force used

seems necessary, you may consider whether the

defendant knew about any other ways of protecting

himself but you may also consider how the

excitement of the moment affected the choice the

defendant made.

A person can use deadly force in self-defense only

where it is necessary to do so. If the defendant

could have safely retreated but did not do so you

may consider that fact in deciding whether the

defendant honestly and reasonably believed he

needed to use deadly force in self-defense.

However, a person is never required to retreat if

attacked in his own home, nor if the person

reasonably believes that an attacker is about to use

a deadly weapon, nor if the person is subject to a

sudden, fierce, and violent attack.

Page 9 of 16

2021 Mich. App. LEXIS 3456, *30

Further, a person is not required to retreat if the

person: has not or is not engaged in the

commission of a crime at the time the deadly force

is used, and has legal right to be where the person

is at that time, and has an honest and reasonable

belief that the use of deadly force is necessary to

prevent imminent death, [*31] great bodily harm or

sexual-assault of the person or another.

The defendant does not have to prove that he acted

in self-defense. Instead, the prosecutor must prove

beyond a reasonable doubt that the defendant did

not act in self-defense. [Emphasis added.]

After it finished reading the jury instructions, the trial

court inquired of the prosecutor and defense counsel

whether they had any requests for "additions, deletions,

[or] corrections of anything that was read," and defense

counsel answered, "No, your Honor."

convicted

defendant of first-degree

The jury

premediated murder, MCL 750.316. and manufacturing

marijuana, MCL 333.7401(2). On the murder conviction,

the trial court sentenced defendant to life in prison,

without the possibility of parole. On the marijuana

conviction, the trial court sentenced defendant to 316

days in jail, with credit for 316 days served.

Douglas. Finally, the trial court concluded that

defendant’s trial counsel did not perform deficiently

when he failed to elicit testimony regarding defendant’s

purchase of surveillance cameras because the desired

evidence was not exculpatory [*33] and because trial

counsel's failure to include it was a tactical decision.

Regarding the jury instruction on the issue of selfdefense, the trial court stated as follows:

Defendant argues that this Court gave an improper

jury instruction regarding self-defense. Self-defense

is defined as an individual who has not or is not

engaged in the commission of a crime, at the time

he or she uses deadly force against another

individual, when the individual honestly and

reasonably believes that the use of the deadly force

is necessary to prevent the imminent death of or

imminent great bodily harm to himself or herself or

to another. MCL 780.972(1). This Court's

instructions to the jury stated that the Defendant

must have been afraid of death. While the selfdefense statute allows for deadly force when

defending against imminent death, serious injury, or

sexual assault, only the relevant theories of selfdefense need to be utilized.

F. POST-TRIAL PROCEEDINGS

After sentencing, defendant filed a motion in the trial

court seeking a new trial and a directed verdict of

acquittal based on ineffective assistance of counsel,

prosecutorial misconduct, and the quantum of evidence

regarding premeditation and deliberation. Defendant

argued that his trial counsel had rendered ineffective

assistance [*32] when he (1) failed to object to

allegedly improper arguments from the prosecutor

during opening and closing arguments, (2) failed to

object to allegedly improper jury instructions regarding

self-defense,' (3) failed to file timely notice of defendant's

proposed expert witness, and (4) failed to elicit

exculpatory evidence. The trial court denied the motion

in a written opinion.

As it would have been improper for this Court to

instruct the jury of deadly forced [sic] used in selfdefense against sexual assault, it was also

improper for it to include self-defense against

serious injury. Defendant's theory of defense was

that the victim's intention was to kill [*34]

Defendant. Defendant statesthat the victim said ’Til

kill you," and "things of that nature." The Court

found this specific instruction to be more accurate

given the defense's theory. See People v

Richardson, 490 Mich 115, 119-120; 803 N.W.2d

302 12011) (stating that trial judges should not

hesitate to modify or disregard the criminal jury

instructions when presented with a clearer or more

accurate instruction).

The trial court concluded that the prosecutor made no

improper arguments in his opening or closing

arguments, that the jury instructions regarding selfdefense were not erroneous, and that the failure of

defendant's trial counsel's to object to those items did

not constitute deficient performance.The trial court also

concluded that the failure of defendant's trial counsel to

disclose the expert witness in a timely manner did not

cause defendant prejudice because the proposed

expert's testimony would have been "corroborative at

best" with the testimony presented by defendant and Dr.

Furthermore, these instructions are reviewed in its

[sic] entirety. People v Clark. 274 Mich App 248,

255: 732 N.W.2d 605 (2007J. When read in its

entirety, the Court also notes that the jury was

instructed that a person is not required to retreat if

the person "has an honest and reasonable belief

that the use of deadly force is necessary to prevent

imminent death, great bodily harm or sexual assault

of the person or another." If the Court erred in

specifically tailoring Criminal Jury Instruction 7.15,

•

Page 10 of 16

2021 Mich. App. LEXIS 3456, ‘34

Use of Deadly Force in Self-Defense, to refer to

pretrial investigation or interview witnesses, and failed to

only the fear of imminent death, then the Court at

mount any type of defense,

least supplemented this potential error in its

additional jury instructions to properly comport with

all statutory requirements of MCL 780.972(1). For

that reason, this Court also finds that trial counsel

was not ineffective for not objecting to these jury

instructions, as this Court does not find the jury

instructions improper.

^ jury INSTRUCTIONS

After the trial [‘35] court denied his motion for a new

trial and a directed verdict of acquittal, defendant, in

propria persona, moved this Court to remand this case

for a Ginther hearing regarding his claims of ineffective

assistance of. counsel. In that motion, defendant raised

substantially the same arguments that he had raised in

the trial court in his post-trial motions. This Court denied

the motion to remand. People v Branham, unpublished

order of the Court of Appeals, entered October 6, 2020

(Docket No. 350452).

Defendant now appeals his murder conviction to this

Court; defendant does not challenge his marijuanarelated conviction.

II. ANALYSIS

On appeal, defendant raises multiple arguments through

counsel. Defendant argues that the trial court

erroneously instructed the jury regarding self-defense

and that it abused its discretion when it denied his

motion for a new trial because the jury instructions

regarding the defense of self-defense did not include the

words "seriously injured," but only used the word

"death." Defendant also argues that his trial counsel

was ineffective in multiple ways, and that the prosecutor

committed misconduct that denied defendant a fair trial

because he misrepresented [*36] evidence to the jury

and made flagrantly improper arguments. Finally,

defendant argues that the evidence was insufficient to

submit the case to'the jury and was insufficient to

sustain a conviction because the prosecutor failed to

disprove the defense of self-defense beyond a

reasonable doubt and because the conviction was

against the great weight of the evidence.

.

In addition, defendant raises several issues in his

Standard 4 brief. Defendant argues that the trial court

impermissibly excluded an expert witness as a sanction

for a discovery violation, that the evidence presented by

the prosecutor was insufficient to support his conviction,

that his conviction was against the great weight of the

evidence, and that his trial counsel rendered ineffective

assistance of counsel because he failed to perform any

Defendant first argues that the trial court erroneously

instructed the jury regarding self-defense. Defendant

p0jnts to the trial court's instructions that, to act in lawful

self-defense, a defendant "must have honestly and

reasonably believed that he was in danger of being

killed" [*37] and that a defendant may not kill or

serious|y injure another person to protect himself

agajnst mjnor injury) but "must have been afraid of

death... Defendant argues that the trial court should

hgve jnstructed the jury that he acted in lawful self­

defense if he honestly and reasonably believed that he

wgs jn danger of ..jmmjnent great bodily harm" and that

the fai|ure t0 gjve the jury this instruction deprived him of

a fair trial.

is

"the

intentional

relinquishment

or

Waiver

abandonment of a known right," People v Kowalski. 489.

Mich 488. 503: 803 NW2d 200 (2011) (cleaned up); and

”[o]ne who waives his rights under a rule may not then

seek appellate review of a claimed deprivation , of those

rights, for his waiver has extinguished any error;" People

v Carter. 462 Mich 206. 215: 612 NW2d 144 (20001

(c|eaned up). Accordingly, when counsel goes beyond

sjmp|y fajjjng to object to a jury instruction, and

"affjrmatjVely approves a jury instruction," he waives any

error_ Peoo!e v Hershev. 303 Mich Add 330. 349; 844

NW2d 127 (2013) (cleaned up). "[Tjhere are n0 'magic

words- that constitute a waiver"; rather, "waiver analysis

should consider the entire context of a defendant's

conduct concerning a purportedly waived issue to

determjne whether the defendant, in fact, intentionally

relinquished a known right." Id. at 350.

jn this case, before either the prosecutor or

defendant's [*38] trial counsel presented their closing

arguments, the trial court indicated that it had discussed

the jury instructions with counsel in chambers, and

defendant’s trial counsel expressed satisfaction with the

instructions as drafted. Both the prosecutor and

defendant's trial counsel, however, discussed the jury

instructions regarding self-defense in their closing

argjjmentSi and both of thejr arguments seem to

indjcate that they believed the trial court would instruct

^

thgt whether defendant acted in self-defense

hjnged on whether defendant reasonably believed that

^ was jp danger of being killed, seriously injured, or

sexually assaulted. The trial court's written opinion

denying defendant's motion for a new trial also appears

Page 11 of 16

2021 Mich. App. LEXIS 3456, *38

to suggest that the trial court may have altered the

agreed-upon instruction regarding self-defense after the

prosecutor and defense counsel had approved it.

Nonetheless, the record reflects that, when the trial

court finished reciting the final jury instructions and

asked the parties if they had requests for corrections,

defense counsel said, "No, your Honor." Because this

statement expressed satisfaction with the instructions as

read, we conclude that [*39] defendant has waived

appellate review of the alleged instructional error. See

Kowalski. 489 Mich at 503. This Court "has consistently

held that an affirmative statement that there are no

objections to the jury instructions constitutes express

approval of the instructions, thereby waiving review of

any error on appeal." Hershev, 303 Mich Add at 351.

Given that defendant has raised a claim that his trial

counsel was ineffective for failing to object to the selfdefense instruction given, we will nonetheless analyze

the propriety of the instruction given, as required for

resolution of the ineffective-assistance claim.

"Claims of instructional error are generally reviewed de

novo by this Court, but the trial court’s determination

that a jury instruction is applicable to the facts of the

case is reviewed for an abuse of discretion." People v

Dobek. 274 Mich Add 58. 82: 732 NW2d 546 (2007). An

abuse of discretion occurs when the trial court chooses

an outcome that falls outside the range of principled

outcomes. People v March. 499 Mich 389, 397; 886

NW2d 396(2016).

Because a "defendant in a criminal trial is entitled to

have a properly instructed jury consider the evidence

against him," the "trial court's role is to clearly present

the case to the jury and to instruct it on the applicable

law." Dobek. 274- Mich Add at 82. "Jury instructions

must include all the elements of [*40] the offenses

charged against the defendant and any material issues,

defenses, and theories that are supported by the

evidence." Id. "If supported by the evidence, defendant's

theory of the case must be given." People v Rajput. 505

Mich 7. 10: 949 NW2d 32 (2020) (cleaned up). "Jury

instructions are reviewed in their entirety, and there is

no error requiring reversal if the instructions sufficiently

protected the rights of the defendant and fairly

presented the triable issues to the jury." Dobek. 274

Mich Add at 82.

The Michigan Legislature codified the defense of selfdefense as follows:

(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. .

. . \MCL 780.972(1Ua)/I

"[Ojnce a defendant 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 [*41] bears the burden of disproving the

affirmative defense of self-defense beyond a reasonable

doubt." Rajput. 505 Mich at 11.

The model jury instruction regarding the use of deadly

force in self-defense, M Crim Jl 7.15, provides optional

language. As appropriate to the facts of a case, the

instruction may read that, "at the time he acted, the

defendant must have honestly and reasonably believed

that he was in danger of being killed," or the word

"killed" may be replaced with the words "seriously

injured" or "sexually assaulted." Furthermore, the

instruction may read that the defendant "must have

been afraid of death," or the word "death" may be

replaced with the words "serious physical injury" or

"sexual assault." Mich Crim Jl 7.15.

In this case, defendant filed a motion for a new trial in

the trial court, citing this issue regarding the selfdefense instructions. The trial court denied the motion

for a new trial, reasoning that the instructions given

were appropriate because defendant testified that the

victim said "I'll kill you" and "things of that nature."

Therefore, the trial court reasoned that defendant's

theory of self-defense was that he was attempting to

protect himself from threat of imminent death, not from

threat of imminent [*42] great bodily harm. We note

defendant's testimony that he was "suddenly” and

"violently attacked," that he thought the attacker might

have had a weapon in his hand, that the attacker was

"very psychotic" and was exhibiting "superhuman

strength," and that there was "no telling what this guy

would do." Defense counsel stressed this testimony in

his argument to the jury. Based on this testimony, the

trial court's determination that the instruction given was

applicable to the facts of the case was not an abuse of

discretion. See March. 499 Mich at 397. And defendant

fails to demonstrate that the instruction resulted in a

miscarriage of justice. See People v Dupree. 486 Mich

Page 12 of 16

2021 Mich. App. LEXIS 3456, *42

fi93. 702: 788 NW2d 399 (2010). The trial court included comments constituted reasonable interferences from the

the "bodily harm" language in its instruction regarding evidence, not misconduct. Defendant told a police

the duty to retreat, and it instructed the jury that the witness that "he just wanted to teach [the victim] a

prosecutor must prove beyond a reasonable doubt that lesson." Using defendant's own words cannot be ^

defendant did not act in self-defense. When reviewed in construed to be an unreasonable inference. With

their entirety, even if imperfect, the instructions respect to staging, the prosecutor presented evidence

represented the issues to be tried and sufficiently from which the jury could have inferred that the victim

protected the defendant's rights. See People v Clark, had suffered his fatal injury—the fracture to the base of

his skull—in the dog kennel, where a large amount of

274 Mich Add 248. 255: 732 NW2d 605 (2007).

blood was found. The prosecutor also presented

B. PROSECUTORIAL MISCONDUCT

evidence through Dr. Douglas that the victim likely

would have been unable to move under his own power

Defendant next argues that the prosecutor committed

after suffering that skull fracture. Yet, a trail of blood led

misconduct when he misrepresented evidence and from the dog kennel to the location where the victim's

made improper arguments during his opening body was discovered, at the door to defendant's house.

statement [*43]

and closing argument. Because Although defendant argues that there was no evidence

defense counsel did not object to the prosecutor's° that the victim was dragged, Sergeant White testified

statements at trial, this issue is unpreserved. People

that, drawing on his experience, it appeared to him that

Grant 445 Mich 535. 546: 520 NW2d 123 (19941 This the. victim's body had been staged [*45] because he

Court reviews unpreserved issues for plain error was lying on his back, with his legs straight out. The

affecting substantial rights. People v Carines, 460 Mich prosecutor's use of Sergeant White's opinion was within

750. 774: 597 NW2d 130 (1999k People v Gibbs, 299

the scope of reasonable interference.

Mich Add 470. 482: 830 NW2d 821 (20131.

The prosecutor's statements in regard to defendant's

To resolve a claim of prosecutorial misconduct, this p|annjng and the motion detectors and cameras also

Court examines whether a prosecutor's remarks constjtuted reaSonable inferences from the evidence,

prejudiced a defendant's trial by examining the whole

evjdence indicated that, approximately one week

record and evaluating the prosecutor's conduct in ^efore

njgbt jn question, defendant became aware

context. People v Mann. 288 Mich App 114, 119; 792

someone had trespassed onto his property. When

NW2d 53(2010). “The purpose of closing argument is to pdjce offjcers investigated the scene, they found motion

allow attorneys to comment on the evidence and to sensors that could only be seen, and would only alert, if

argue their theories of the law to the jury." People v a person entered the enclosed area in which the

Finlev. 161 Mich Add t 9: 410 NW2d 282 (1987), marijuana plants were located. Therefore, it was

"Generally, prosecutors are accorded great latitude reasonab|e for the prosecutor to infer that defendant set

regarding their arguments, and are free to argue the up the motion sensors in response to the earlier

evidence and all reasonable inferences from the trespass to protect his marijuana operation and to teach

evidence as they relate to their theory of the case,

the next trespasser a lesson. Moreover, it is unclear why

People v Seals, 285 Mich App 1, 22; 776 NW2d 314 defendant's argument that he purchased security

(20091Defendant objects to the prosecutor's comments, made

during his opening statement, that defendant beat the

victim to death with a baseball bat, that he "snuck up on

him and he ambushed him," and that he did so because

he wanted to teach the victim a lesson. Defendant also

objects to the prosecutor's suggestion that defendant

"staged the body" after the assault ended. Defendant

further objects to the prosecutor's comments, [*44]

made during his closing argument, that defendant

wanted to "teach somebody a lesson" and that he had

installed motion sensors, but not cameras, in his

backyard.

We

conclude

that' the

prosecutor's

challenged

cameras but had not installed them because the Internet

was out the day before the altercation would help his

argument, if anything, this assertion seemingly makes

the prosecutor's inference as to the motion sensors

more reasonable because it suggests [*46] that the

security equipment was new and was purchased in

response to the earlier trespass. Accordingly, the

prosecutor did not commit prosecutorial misconduct.

c. EXCLUSION OF EXPERT-WITNESS TESTIMONY

Defendant argues, in his Standard 4 brief, that the trial

court abused its discretion when it excluded Dr. Dennis

Simpson's expert testimony. This Court reviews for an

abuse of discretion a trial court's decision to admit

Page 13 of 16

2021 Mich. App. LEXIS 3456, *46

expert testimony. People v Unaer. 278 Mich Add 210.

918- 74Q NWP.d 217. (2008) "A preserved error in the

'counsel' guaranteed the

defendant by the Sixth

Amendment." Strickland v_ Washington, 466 US 668,

affirmatively appear that it is more probable than not

that the error was outcome determinative.” Peopte_v

BurnSi 4Q4 M!ch 104. 110; 832 NW2d 738 (2013)

Although "[cjounsel has a duty to bring to bear such skill

and knowledge as will render the trial^ a reliable

adversarial testing process," a reviewing "court must

indulge a strong presumption" that counsel's challenged

action was "sound trial strategy." Strickland. 466 US at

688-689. "Judicial scrutiny of counsel's performance

must be highly deferential." Id. at 689. A reviewing court

must affirmatively entertain the range of possible

reasons for a counsel's actions. Cullen v Pinholster, 563

us 170. 196:131 S Ct 1388:179 L Ed 2d 557 (2011),

rrsrrsrrzrrz EsassstssfiSZEs

(cleaned up).

Although a defendant "has a constitutionally guaranteed

right to present a defense, which includes the right to

call witnesses," this right is not absolute. People v YosL

278 Mich Add 341: 749 NW2d 753 (2008). A defendant

must comply with established rules of procedure and

evidence. Id. MCL 767.94a requires the defense to

make certain disclosures no later than 10 days before

trial. Among those disclosures is'the curriculum vitae of

a testifying expert and either a report or written,

description of the expert's proposed testimony. MCR

6.201(A)(3). in this case, defense counsel did not

provide [*47] the prosecutor with Dr. Simpson's

curriculum vitae and a report or written description of his

proposed testimony within the required time period.

Therefore, on the first day of trial, the trial court properly

granted the prosecution's motion to exclude Dr.

Simpson's testimony.

D. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his trial counsel was ineffective

for failing to object to the comments, discussed earlier,

that the prosecutor made during his opening statement

and closing argument. Defendant's argument lacks

merit. Defendant fails to demonstrate that his trial

counsel's failure to object to the challenged comments

Was not sound trial strategy or that it was prejudicial,

See Strickland. 466 US at 688-689. An objection could

have drawn further attention to the prosecutor's

comments. Moreover, as we discussed earlier, the

prosecutor's

challenged

statements

constituted

reasonable interferences, and therefore, were not

improper. See Seals. 285 Mich Aoo at 22.

We now turn to five arguments that defendant's trial

counsel was ineffective—four raised by defense counsel

and one by defendant in his Standard 4 brief. Each

argument lacks merit.

Defendant also argues that defense counsel was

ineffective [*49] because he failed to object to the jury

instruction regarding self-defense. As explained above,

the trial court's instructions fairly represented the issues

and sufficiently protected defendant's rights: See Clark,

Whether a person has been denied effective

274 Mich Ado at 255. Failing to advance a meritless

assistance of counsel is a mixed question of fact------------------.

.

and constitutional law. The trial court must first find argument or raise a futile objection does not constitute

the facts and then decide whether those facts ineffective assistance of counsel. People v Smder 239

of the

defendant's Mich Add 393, 425: 608 NW2d 502 (2000}. Defense

constitute

a violation

counsel's failure to object to the self-defense

• constitutional right to effective assistance of

instructions did not constitute deficient performance.

counsel. The trial court's factual findings are

reviewed for clear error, while its constitutional

Next, defendant argues that defense counsel was

determinations are reviewed de novo. [People v

ineffective because he did not comply with discovery

Matuszak. 263 Mich Add 42. 48: 687 NW2d 342

rules that required him to provide the subject matter of

(2004) (cleaned up).]

proposed expert testimony to the prosecutor, which led

to the exclusion of Dr. Simpson's testimony. Defendant's

"To establish ineffective assistance of counsel,

deficient argument fails because defense counsel’s performance

defendant must prove that counsel's ■.

not prejudicial. See Dixon. 263 Mich Add at 396.

Sr”zrJtsrzrz s—• »i—"r-rzrs £

"This requires showing that counsel made errors [*48]

victim's behavior. Defendant's trial counsel elicited

so serious that counsel was not functioning as the

expert testimony that "people can exert very impressive

Page 14 of 16

2021 Mich. App. LEXIS 3456, *49

levels of strength when they’re under the influence" of

methamphetamine, including "superhuman feats" of'

strength, and that individuals [*50] under the influence

of the drug can appear to be "psychotic." Importantly,

Dr. Douglas admitted that the "best evidence" of how

the victim was impacted by the methamphetamine in his

system would be the observations from someone who

personally saw how the victim was acting on the night of

the assault. Defendant's trial counsel stressed this

testimony in his closing argument, noting that only

defendant personally saw how the victim was acting,

Defendant has not shown that his proffered expert

strategic reasons why defendant's trial counsel could

have declined to elicit testimony regarding the cameras,

The record includes testimony that defendant knew

about trespassers a week before the incident with the

victim, yet defendant's reason regarding why the

cameras were not set up was only that the Internet was

out the day before the altercation. Focusing on these

facts could have caused the jury to further question

defendant's motives in setting up the motion sensors

(but not the cameras) and his actions on the night in

question.

Therefore,

defendant has. failed to

demonstrate that failure to elicit this

testimony

witness would have offered different testimony on this

constituted deficient performance.

issue, or testimony that would have been more

favorable to defendant. Rather, the proposed testimony

of defendant's proffered expert would have been

cumulative to the testimony provided by Dr. Douglas,

Defendant therefore fails to demonstrate a reasonable

In his Standard 4 brief, defendant argues that defense

counsel was ineffective because he failed to interview

defendant's grandmother-in-law, Margaret L. McNally,

who supposedly owned the house in which defendant

probability that the outcome of the trial would have been lived, and who possessed a baseball-bat collection.

different but for counsel’s failure to properly present Dr. Defendant also argues that defense counsel failed to

explain to the jury that McNally owned several of the

Simpson's testimony. See Dixon, 263 Mich App at 396.

marijuana plants. Defendant further alleges [*53] that

Defendant also argues that his trial counsel rendered defense counsel failed to investigate cyclic vomiting

ineffective assistance because he failed to prepare for syndrome. Defendant fails to demonstrate that, even

trial. Specifically, defendant highlights his trial counsel's cumulatively, these additional pieces of information, if

statement that he had not watched for some time admissible, would have had a reasonable probability of

defendant's

recorded

interview [*51]

with

law altering the outcome of the trial. See Dixon, 263 Mich

enforcement. Defendant's argument lacks merit. Add at 396. None of these additional pieces of

Although defendant's trial counsel admitted that he had information would have aided the jury in determining

not watched defendant’s recorded interview recently, he whether defendant premediated the killing of the victim,

requested additional time to watch the interview. The The facts that defendant took a shower after the

trial court not only granted that request, but invited struggle, got sick after the struggle, and had a ready

defendant’s trial counsel to play the entire recording for supply of baseball bats does not negate the prosecutor's

the jury. Defendant's trial counsel considered the issue, argument that defendant premediated his attack on the

and for what appear to be sound tactical reasons, next person who entered his marijuana-grow operation,

decided not to play the entire recording for the jury. And the facts promoted by defendant, even if true, do

Given defendant's boasting to Detective Ergang not negate the reasonable inference that "the lesson"

regarding how strong he was, how he was "bigger than defendant said he wanted to teach the victim included

the guy," how he significantly overpowered the victim, killing him. 1

who was a "little guy" who "didn't have a chance" ________

against defendant, and given defendant's testimony that

he struck the victim with as much force as he possibly 1 Defendant also argues that the trial court abused its

could, playing the entire recording for the jury could discretion when it denied his motion for an evidentiary hearing

have focused the jury's attention on evidence that would on ineffective assistance of counsel. Defendant contends that

factual issues exist regarding whether his trial counsel acted

have been harmful to defendant's case.

strategically or negligently. The trial court denied the motion

Defendant also argues that his trial counsel should have on the basis that defendant failed to establish that defense

presented evidence (apparently, through defendant's counsel's performance was prejudicial. Defendant does not

recorded interview) that defendant had purchased address this basis. Moreover, for the reasons discussed

earlier, the available record provided sufficient detail for the

cameras for his property and should have used this fact

trial court to conclude that defense counsel’s performance,

to object to the prosecutor’s [*52] closing argument. As

even if deficient, did not affect the outcome of the

the trial court reasoned in its opinion denying proceedings. Accordingly, defendant fails to demonstrate that

defendant's motion for a new trial, there are a myriad of the trial court abused its discretion when it declined to hold an

Page 15 of 16

2021 Mich. App. LEXIS 3456, *53

E. SUFFICIENCY AND GREAT WEIGHT

Next, defendant argues, both in his brief filed by counsel

and in his Standard 4 brief, that the prosecutor

presented insufficient evidence to support his firstdegree murder conviction and that this conviction is

against the great weight of the evidence. Specifically,

defendant argues that the prosecutor presented [*54]

no evidence of premeditation and that the prosecutor

did not disprove defendant's claim of self-defense. On

the same basis, defendant argues that the trial court

abused its discretion when it denied his motion for a

directed verdict of acquittal.

• 1. SUFFICIENCY OF THE EVIDENCE

Due process requires that a conviction is supported by

"sufficient evidence to justify a rational trier of fact in

finding guilt beyond a reasonable doubt." People v

Johnson. 460 Mich 720. 722-723: 597 NW2d 73 (1999)

(cleaned up). This Court reviews a sufficiency of the

evidence claim de novo. People v Meissner. 294 Mich

Add 438. 452: 812 NW2d 37 (2011).

[W]hen determining whether sufficient evidence has

been presented to sustain a conviction, a court

must view the evidence in a light most favorable to

the prosecution and determine whether any rational

trier of fact could have found that the essential

elements of the crime were proven beyond a

reasonable doubt. \Peoole v Wolfe. 440 Mich 508,

515: 489 NW2d 748 (1992). amended 441 Mich

1201 (1992).]

Appellate courts do not hear testimony of witnesses

and, therefore, defer to the jury's credibility

determinations. People v Henderson. 306 Mich Add 1,

9: 854 NW2d 234 (2014). "Circumstantial evidence and

the reasonable inferences that arise from that evidence

can constitute satisfactory proof of the elements of the

crime." Id.

This Court reviews for an abuse of discretion the trial

court's grant [*55] or denial of the motion for a new trial,

People v DeLisle, 202 Mich App-658, 661: 509 NW2d

885 (1993). “An appellate court will review a properly

preserved great-weight issue by deciding whether the

Evidence preponderates so heavily against the verdict

that it would be a miscarriage of justice to allow the

verdict to stand." People v Cameron. 291 Mich App 599,

617:806 NW2d 371 (2011).

evidentiary hearing. See Unger. 278 Mich Add at 216-217.

To obtain a conviction of first-degree premediated

murder, the prosecutor must prove beyond a reasonable

doubt that the defendant committed a "willful, deliberate,

ancj premeditated killing." MCL 750.316(1)(a). There is

no specific time requirement sufficient to establish

premeditation. People v Plummer. 229 Mich Add 293,

300: 581 NW2d 753 (1998). Instead, "sufficient time

must have elapsed to allow the defendant, to take a

’second look.'" Id. (citations omitted),

Based on our review of the record, a .rational fact-finder

could have readily concluded that the prosecutor

presented sufficient evidence of premeditation. See

‘ Johnson. 460 Mich at 122-723: see also Plummer; 229

Mich Add at 300-301. The prosecutor presented

testimony that defendant learned, about a week before

the incident, that someone was stealing his marijuana.

He set up motion sensors that could alert him to the

presence of an intruder. Defendant stated that he

"wanted to teach [the victim] a lesson." Defendant is

asking this Court to judge the credibility of his claim that

he did not want to [*56] "hurt the guy." Defendant’s

argument that the prosecutor failed to disprove selfdefense asks this Court to do the same. Juries are

allowed to reach reasonable inferences, and this Court

must view the evidence in the light most favorable to the

prosecutor. Viewing this evidence in the light most

favorable to the prosecutor, the jury could have

reasonably concluded that defendant killed the victim

•

with premeditation. Therefore, defendant’s argument as

to the sufficiency of the evidence fails.

2. GREAT WEIGHT OF THE EVIDENCE

Defendant's great-weight argument likewise lacks merit,

unlike a challenge to the sufficiency of the evidence, a

c|aim that the verdict was against the great weight of the

evjdence is not a constitutional claim. People v.'Roper,

286 Mich Add 77. 83-84: 111 NW2d 483 (2009). A court

revjewing whether a . verdict was against the great

weight of the evidence is required to review the whole

body of proofs. People v Herbert. 444 Mich 466, 475;

511 ^2d 654 (1993). A reviewing court may only

substitute its view regarding witness credibility for that of

the jury under exceptional circumstances: if witness

-testimony contradicts indisputable physical facts or

|awSj js patently incredible, defies physical realities, is

SQ implausible that it could not be believed by a

reasonable juror, or was [*57] so far impeached that it

was deprived of all probative value. People v Lemmon

456 Mich 625. 642-644: 576 NW2d 129 (19981. A

reviewing court may not function as a thirteenth juror. Id

at 647. "Generally, a verdict may be vacated only when

Page 16 of 16

2021 Mich. App. LEXIS 3456, ‘57

the evidence does not reasonably support it and it was

more likely the result of causes outside the record, such

as passion, prejudice, sympathy, or some other

extraneous influence." People v Lacalamita. 286 Mich

Add 467. 469: 780 NW2d 311 12009). "The hurdle that a

judge must clear in order to overrule a jury and grant a

new trial is unquestionably among the highest in our

law." Unger, 278 Mich Add at 232 (2008) (cleaned up).

Defendant's argument is simply that the great weight of

the evidence weighs heavily against defendant's firstdegree murder conviction. This case does not equate

with one of the scenarios described in Lemmon that

would allow this Court to overturn a verdict on the basis

of credibility. See Lemmon, 456 Mich at 642-644.

Therefore, defendant's argument fails.2 Because

defendant's conviction was supported by sufficient

evidence and was not against the great weight of the

evidence, the trial court's denial of defendant's motion

for directed verdict was a principled outcome. See

March. 499 Mich at 397. There is no indication (and

defendant, does not argue) that the jury’s verdict was

more likely the result of causes outside the record.

Additionally, [*58] the record reasonably supported the

jury's verdict. See Lacalamita. 286 Mich Add at 469.

Specifically, the prosecutor presented testimony that

defendant installed the motion sensors to protect his

marijuana operation and wanted to teach the victim a

lesson. Therefore, defendant's argument fails.

3. MOTION FOR A DIRECTED VERDICT

Finally, we conclude that the trial court did not abuse its

discretion when it denied defendant's motion for a

directed verdict. "Due process commands a directed

verdict of acquittal when 'sufficient evidence to justify a

rational trier of fact in finding guilt beyond a reasonable

doubt' ... is lacking." Lemmon. 456 Mich at 634-634

(citations omitted). The evidence presented before the

motion is made must be viewed in the light most

favorable to the prosecutor. Id. at 634. Again, the

prosecutor presented evidence that defendant knew

about a previous trespass, that defendant installed

motion sensors that only alerted him to someone

trespassing on his marijuana operation, and that

2 For the first time, in his Standard 4 brief, defendant maintains

that McNally owned the home and some of the marijuana

plants. Defendant also maintains McNally had a lifelong

obsession with baseball bats. These facts are not part of the

record. And, even if they were, defendant simply asks this

Court to make credibility judgments that we cannot make. See

Henderson. 306 Mich Add at 9.

defendant told a police officer that he wanting to teach

the victim a lesson. Viewed in the light most favorable to

the prosecutor, the trial court's determination that the

prosecutor

presented

sufficient

evidence

of

premeditation was a principled outcome. [*59] See

People v Mehali. 454 Mich 1. 6: 557 NW2d 110 (1997).

Affirmed.

Isl Brock A. Swartzle

Isl Jane E. Markey

/s/ Jonathan Tukel

End of Document

Branham v. Michigan

Appendix B

*

O Neutral

As of: July 15, 2022 5:14 PM Z

People v. Branham

Supreme Court of Michigan

March 25, 2022, Decided

SC: 163202

Reporter

971 N.W.2d 212 *; 2022 Mich. LEXIS 551 **; 2022 WL 905446

PEOPLE OF THE STATE OF MICHIGAN, PlaintiffAppellee, v NATHAN LEON BRANHAM, DefendantAppellant.

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History: [**1]COA: 350452. Kalamazoo CC:

2018-001812-FC.

People v. Branham. 2021 Mich. Add. LEXIS 3456. 2021

WL 2284515 (Mich. Ct. Add.. June 3, 2021)

(2020). We REMAND this case to the Court of Appeals

for consideration of whether trial counsel's failure to

request a self-defense jury instruction that included the

fear of serious injury, see M Crim Jl 7.15, was

"representation [that] fell below an objective standard of

reasonableness," see Strickland v Washington, 466 US

668. 688: 104 S. Ct. 2052: 80 L. Ed. 2d 674 (1984), that

prejudiced him, see id. at 687. 694. In all other respects,

leave to appeal [**2] is DENIED, because we are not

persuaded that the remaining questions presented

should be reviewed by this Court.

We do not retain jurisdiction.

Core Terms

End of Document

serious injury, self-defense

Judges: Bridget M. McCormack, Chief Justice. Brian K.

Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth

T. Clement, Megan K. Cavanagh, Elizabeth M. Welch,

Justices.

Opinion

[*212] Order

On order of the Court, the application for leave to appeal

the June 3, 2021 judgment of the Court of Appeals is

considered and, pursuant to MCR 7.305(H)(1), in lieu of

granting leave to appeal, we REVERSE that part of the

Court of Appeals opinion holding that a request for a

self-defense instruction that included fear of serious

injury would have been meritless or futile. This omitted

instruction was supported by the evidence and the

instructions actually provided did not sufficiently protect

defendant's right to a properly instructed jury.

Accordingly, had trial counsel requested this instruction,

the trial court would have been required to provide it.

See People v Rajput. 505 Mich 7. 10; 949 N.W.2d 32

Branham v. Michigan

Appendix C

O Neutral

As of: July 15, 2022 5:13 PM Z

People v. Branham

Court of Appeals of Michigan

July 7, 2022, Decided

No. 350452

Reporter

2022 Mich. App. LEXIS 3984 *

PEOPLE OF THE STATE OF MICHIGAN, PlaintiffAppellee, v NATHAN LEON BRANHAM, DefendantAppellant.

Notice: THIS IS AN UNPUBLISHED OPINION. IN

ACCORDANCE WITH MICHIGAN COURT OF

APPEALS RULES, UNPUBLISHED OPINIONS ARE

NOT PRECEDENTIALLY BINDING UNDER THE

RULES OF STARE DECISIS.

Prior History: [*1] Kalamazoo Circuit Court. LC No.

2018-001812-FC.

People v. Branham. 2020 Mich. Ado. LEXIS 4758 (Mich.

Ct. Add.. July 28. 2020)

Core Terms

serious injury, premeditation, killed, use deadly force,

self defense, trial court, self-defense, murder, ineffective

assistance claim, instruct a jury, trial counsel, firstdegree, ineffective, prejudiced, marijuana, intruder,

feared, defendant’s conviction, instruction of a jury,

necessary to prevent, proper instructions, reasonably

probable, great bodily harm, jury’s conclusion,

reasonable belief, imminent death, jury's verdict, per

curiam, instructions, convicted

Counsel: For PEOPLE OF Ml, Plaintiff-Appellee: MARK

A. HOLSOMBACK.

For BRANHAM NATHAN LEON, Defendant-Appellant:

MARY A. OWENS.

Judges: Before: SWART2LE, P.J., and MARKEY and

LETICA, JJ.

Opinion

ON REMAND

Per Curiam.

Defendant was growing marijuana in his backyard and

suspected that someone-was stealing it, so he installed

motion sensors near the plants. A week later, an

individual attempted to steal defendant's marijuana in

the middle of the night. Defendant confronted the

individual, a fight ensued, and defendant killed the

intruder. Following a jury trial, defendant was convicted

of first-degree premediated murder, MCL 750.316, and

manufacturing marijuana, MCL 333.74012.

Defendant appealed and argued, in relevant part, that

his trial counsel was ineffective for failing to request a

self-defense jury instruction that would have informed

the jury that defendant could lawfully use self defense if

he feared serious injury. The theme of trial counsel's

closing argument was, in fact, the doctrine of self

defense. The trial court instructed the jury on self

defense, though the focus of the instructions was on

whether defendant had an honest and reasonable belief

that he was in danger of being killed, [*2] not seriously

injured. (The trial court did mention, at one point, that

defendant would have to- possess "an honest and

reasonable belief that the use of deadly force is

necessary to prevent imminent death, great bodily harm,

or sexual-assault of the person or another.") We

affirmed defendant's convictions and concluded that the

jury was properly instructed and, by extension, that his

trial counsel was not ineffective for failing to challenge

the jury instructions. People v Branham, unpublished

per curiam opinion of the Court of Appeals, issued June

3, 2021 (Docket No. 350452) (Branham /), p 14-16, 19.

Defendant then appealed to the Supreme Court, which

reversed in part and remanded in part, stating:

[W]e REVERSE that part of the Court of Appeals

opinion holding that a request for a self-defense

instruction that included fear of serious injury would

have been meritless or futile. This omitted

Page 2 of 3

2022 Mich. App. LEXIS 3984, ‘2

force is authorized if an individual honestly and

reasonably believes that it is necessary to prevent the

imminent death, great bodily harm, or sexual assault of

himself or another. MCL 780.972(1); People v Conyer,

281 Mich App 526, 529-530: 762 NW2d 198 (2008).

With that said, a jury’s conclusion that a defendant killed

with premeditation "necessarily entails a rejection" of

self defense. People v Bynum, 496 Mich 610, 634; 852

NW2d 570 (20141. See also People v Truong, 218 Mich

App 325, 337-338; 553 NW2d 692 (19961 People v

Daniels, 192 Mich App 658, 673; 482 NW2d 176 (1991),

State v Bell. 280 Kan 358. 367: 121 P3d 972 (2005);,

below an objective standard of reasonableness," _______

Strickland v Washington, 466 US 668. 688; 104 Commonwealth v Gibson, 424 Mass 242, 248; 675

see

S. Ct. 2052; 80 L. Ed. 2d 674 (1984), that NE2d 776 {1997).

instruction was supported by the evidence and the

instructions actually provided did not sufficiently

protect defendant’s right to a properly instructed

jury. Accordingly, had trial counsel requested this

instruction, the trial court would have been required

to provide'it. See People v Rajput 505 Mich 7. 10;

949 N.W.2d 32 (2020). We REMAND this case [*3]

to the Court of Appeals for consideration of whether

trial counsel's failure to request a self-defense jury

instruction that included the fear of serious injury,

see M Crim Jl 7 15 was "representation [that] fell

prejudiced him, see id. at 687, 694. In all other

respects, leave to appeal is DENIED, because we

are not persuaded that the remaining questions

presented should be reviewed by this Court.

[People v Branham, _ Mich _j 971 NW2d 212

(2022) (Branham II) (alteration in original).]

For the reasons that follow, we again affirm defendant's

first-degree murder conviction.

Because the trial court did not hold a Ginther1 hearing,

"our review is limited to the facts on the record." People

v Wilson. 242 Mich Add 350. 352: 619 NW2d 413

(2000). "A claim of ineffective assistance of counsel is a

mixed question of law and fact. A trial court’s findings of

fact, if any, are reviewed for clear error, and this Court

reviews the ultimate constitutional issue arising from an

ineffective assistance of counsel claim de novo." People

v Petri. 279 Mich Add 407. 410: 760 NW2d 882 (20081.

To establish a claim of ineffective assistance of counsel,

defendant must show that: (1) defense

_ il counsel's

.

.

performance was deficient; and (2) the deficient

performance prejudiced the defense. People v Taylor^

2.75 Mich Ado 177. 186: 737 NW2d 790 (20071- The

performance will be deemed to have prejudiced the

defense if[*4] it is reasonably probable that, but for

counsel’s error, the result of the proceeding would have

been different. People v Jordan, 275 Mich App 65JL

687: 739 NW2d 706 (2007).

Defendant's claim of ineffective assistance of counsel

centers on the lack of a self-defense instruction

regarding serious injury. Self-defense is an affirmative

defense that, if established, will justify otherwise

punishable criminal conduct. People v Dupree, 486 Mich

6Q3. 707: 788 NW2d 399 (2010). The use of deadly

People v Ginther. 290 Mich 436: 212 NW2d 922 (1973).

As we explained in Branham I, unpub op at 21, "Based

on our review of the record, a rational fact-finder could

have readily concluded that the prosecutor presented

sufficient evidence of premeditation." We further

concluded that the jury's verdict that defendant

committed a "willful, deliberate, and premeditated killing"

was supported by the great weight of the evidence. Id.

at 21-22. See also MCL 750.316(1)(a). Those

conclusions were affirmed by our Supreme Court in

Branham II, and defendant's independent claims [*5]

for relief on those grounds are not before this Court on

remand.

By convjctjng defendant of first-degree murder, the jury

conc[uded that defendant had an opportunity for a

"second look" during the altercation, but that he

nevertheless chose to kill the intruder. Branham I,

unpub op at 21-22. This finding is fundamentally

incompatible with a conclusion that defendant used

deadly force because he feared serious injury. Given

the jury’s verdict and the ample evidence supporting that

verdicti there is not a reasonable probability that the jury

would have viewed defendant’s conduct as lawful self

defense if it was instructed that defendant’s fear of

serious injury could justify his use of deadly force.

jf defendant had been convicted of a lesser offense that

did not require premeditation, or if the evidence of

premeditation had been more equivocal, then perhaps

he could be entitled to relief. (The trial court did, in fact,

instruct the jury on second-degree murder.) But that is

not the case before us. The jury’s conclusion that

defendant acted with premeditation when he killed the

j^der forecloses any reasonable likelihood that it also

WQu|d hgve conc|ucjed that his use of deadly force [*6]

was justified because he feared serious injury. Thus, a

different result was not reasonably probable even if the

jury had been properly instructed.

Page 3 of 3

2022 Mich. App. LEXIS 3984, *6

Affirmed.

1st Brock A. Swartzle

Is! Jane E. Markey

Isl Anica Letica

End of Document

A

Branham v. Michigan

Appendix D

A

0 Neutral

As of: June 15, 2023 6:16 PM 2

People v. Branham

Supreme Court of Michigan

April 4, 2023, Decided

SC: 164730

Reporter

2023 Mich. LEXIS 513 *; 987 N.W.2d 201; 2023 WL 2775910

PEOPLE OF THE STATE OF MICHIGAN, PlaintiffAppellee, v NATHAN LEON BRANHAM, DefendantAppellant.

Prior History: [*1] COA:

2018-001812-FC.

350452.

Kalamazoo CC:

Judges: Elizabeth T. Clement, Chief Justice. Brian K.

Zahra, David F. Viviano, Richard H. Bernstein, Megan

K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden,

Justices.

Opinion

Order

On order of the Court, the application for leave to appeal

the July 7, 2022 judgment of the Court of Appeals is

considered, and it is DENIED, because we are not

persuaded that the questions presented should be

reviewed by this Court.

End of Document