            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 25, 2019
               Plaintiff-Appellee,

v                                                                    No. 340305
                                                                     Kent Circuit Court
MARCUS LAMAR BIVINS,                                                 LC No. 17-000191-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        Defendant, Marcus Lamar Bivins, appeals as of right his jury trial conviction of first
degree premeditated murder, MCL 750.316(1)(a). The trial court sentenced defendant as a
fourth habitual offender, MCL 769.12, to a term of life imprisonment without parole. We affirm.

         The pertinent facts are undisputed. In the early morning hours of April 30, 2016,
defendant stabbed and killed the victim. Defendant admitted to the homicide. A former high
school classmate of defendant, Jesiah Israel, testified that defendant entered the Meijer store
where he worked at approximately 11:00 a.m. on April 30, 2016. Israel testified that, once they
were alone, defendant disclosed that he had “caught a body” — that he had killed someone.
Israel testified that defendant did not disclose why or who he killed but that defendant stated that
he had always wanted to kill someone. Israel testified that defendant then removed a knife with
blood on it from the pocket of his hooded sweatshirt but that defendant did not have any blood
on him or his clothes. Israel testified that defendant appeared coherent and normal when he
recounted the incident and that defendant continued into Meijer to shop after he disclosed the
incident.

        During an interview with Grand Rapids Police Department detectives, defendant
admitted that he stabbed and killed the victim. Defendant told the police detectives that he heard
voices—that one voice was good and Christian and another voice told him to “do monstrous
things.” Defendant told the detectives that something told him to choose the victim and that “it”
told him to wait until she was sleeping to kill her. Defendant also told the detectives that
defendant felt happy when he first saw the victim’s blood and that he laughed when he heard the



                                                -1-
victim wheezing. Defendant said he cried about the incident and that he said “I feel sorry about
it, but I don’t feel sorry about it, you know? It’s just the voices in my head.” Defendant told the
detectives that he would have continued killing if he had not been caught. Before defendant
received his sentence, defendant provided a written statement in which he stated that there were
never voices and that he “lied about that to get off.”

         Dr. Trang Walker, a forensic psychologist at the Center for Forensic Psychiatry,
conducted a criminal responsibility examination of defendant on March 27, 2017. The
psychologist testified that, during the evaluation, defendant appeared dysphoric, sad, and lacking
emotion but organized in his thoughts. Regarding defendant’s background, the psychologist
testified that defendant stated that he was removed from his mother’s care and placed in foster
care; he experienced a head injury at the age of four; he received outpatient treatment for
Attention Deficit Hyperactivity Disorder and Bipolar Disorder; he had been hospitalized for
psychiatric treatment; and, he was diagnosed with Conduct Disorder (where an adolescent
disregards rules and societal norms) and a mood disorder. The psychologist testified that, at the
time of the evaluation, defendant reported feeling depressed. but that the clinicians at the Kent
County Correctional Facility questioned whether defendant reported this symptom to obtain
more favorable housing in the mental health unit.

        The psychologist testified that, in reviewing these records and conducting her in-person
evaluation, she concluded that defendant did not suffer from a mental illness at the time of the
charged offense, meaning that he did not lack a significant ability in his judgment or behavior, an
ability to recognize reality, or an ability to cope with the ordinary demands of life. The
psychologist also concluded that defendant was able to understand the consequences and
wrongfulness of his actions, demonstrated by his statements concerning the stabbing and the
victim’s death and by his statements that he knew his actions were illegal and wrong in a moral
sense. The psychologist testified that defendant had the ability to conform his conduct to the
requirements of the law, but that he chose to engage in illegal behavior. Although the
psychologist noted that defendant exhibited some traits and characteristics of antisocial
personality disorder, she concluded that defendant’s reports of hearing voices, without other
disorganized or psychotic behaviors, did not indicate a mental illness. The psychologist stated
that generally, someone in a psychotic state or someone who suffered from delusions would
appear erratic and disorganized, but defendant appeared purposeful, goal-oriented, and
organized.

        Defendant filed a post judgment motion for a new trial and an evidentiary hearing on the
basis of ineffective assistance of counsel regarding two issues: (1) defense counsel’s failure to
object to a faulty jury verdict form and defective jury instructions, and (2) defense counsel’s
failure to secure expert testimony on the issue of whether defendant was mentally ill or legally
insane. The trial court denied defendant’s motion for a new trial as to the first issue, but granted
defendant’s motion for an evidentiary hearing on the second issue.

         At the evidentiary hearing, defense counsel testified that he sought an independent
forensic evaluation of defendant and that the examiner concluded that there was no basis to find
that defendant was criminally insane at the time of the incident. Defense counsel testified that
his trial strategy was to focus on the defense of insanity for a verdict of not guilty, rather than
arguing, in the alternative, that defendant was guilty but mentally ill. The trial court found that

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defense counsel’s decision to abstain from presenting an expert and to argue that the
prosecution’s expert was not credible was a sound trial strategy given the other evidence
presented at trial. Additionally, the trial court found that a different result was not reasonably
probable on the basis of the consistent and unequivocal conclusion of two experts that defendant
was sane at the time of the offense. The trial court denied defendant’s motion for a new trial on
this issue. Defendant now asserts on appeal that he did not receive the effective assistance of
counsel.

        A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. We review factual findings for clear error, but we review de novo questions
of constitutional law. People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). In order to
overcome this presumption, a defendant must show that: (1) defense counsel’s performance did
not meet an objective standard of reasonableness under the circumstances and according to
prevailing professional norms and (2) there was a reasonable probability that, but for defense
counsel’s errors, the results of the proceeding would be different. Strickland v Washington, 466
US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 312-
313; 521 NW2d 797 (1994). Additionally, a defendant must show that the result that occurred
was fundamentally unfair or unreliable. People v Lockett, 295 Mich App 165, 187; 814 NW2d
295 (2012).

        Defendant first contends that counsel was ineffective for failing to object to a defective
jury verdict form and defective jury instructions. We disagree.

       “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him. Further, a criminal defendant is deprived of his constitutional right to a jury trial
when the jury is not given the opportunity to return a general verdict of not guilty.” People v
Wade, 283 Mich App 462, 467; 771 NW2d 447 (2009) (quotation marks and citations omitted).
This Court reviews jury instructions in their entirety, and “[e]ven if the instructions are
somewhat imperfect, reversal is not required as long as they fairly presented the issues to be tried
and sufficiently protected the defendant’s rights.” People v Aldrich, 246 Mich App 101, 124;
631 NW2d 67 (2001).

        Here, the verdict form provided the jury eight options from which to choose: (1) not
guilty of first-degree murder; (2) not guilty of first-degree murder by reason of insanity; (3)
guilty of first-degree murder; (4) guilty of first-degree murder but mentally ill; (5) not guilty of
second-degree murder; (6) not guilty of second-degree murder by reason of insanity; (7) guilty of
second-degree murder; and (8) guilty of second-degree murder but mentally ill. The jury had the
opportunity to choose a general verdict of not guilty or a special verdict of not guilty by reason
of insanity for either the primary charge of first-degree premeditated murder or the lesser
included offense of second-degree murder. Additionally, the jury had the opportunity to make a
finding as to defendant’s legal insanity or mental illness by finding defendant not guilty by
reason of insanity or guilty but mentally ill for either the charge of first-degree murder or the
lesser included offense of second-degree murder. We conclude that the jury verdict form was
not defective because the jury had the opportunity to return a general verdict of not guilty. See
Wade, 283 Mich App at 468.

                                                -3-
         Further, the trial court properly instructed the jury on the choices provided on the jury
verdict form. The trial court instructed the jury consistent with relevant portions of the Model
Criminal Jury Instructions. See MCR 2.512(D)(2). The applicable jury instructions regarding
the jury verdict options were the instructions of “legal insanity,” “guilty but mentally ill,” and
“insanity at the time of the crime.” M Crim JI 7.11; M Crim JI 7.12; M Crim JI 7.13. These jury
instructions accurately state the applicable law and the elements of the insanity defense and the
guilty but mentally ill verdict. See MCL 768.20a, MCL 768.21; MCL 768.21a; MCL 768.29a;
MCL 768.36; see generally People v Shahideh, 482 Mich 1156; 758 NW2d 536 (2008)
(interpreting the law and procedure concerning an insanity defense). Additionally, the trial court
instructed the jury to choose only one verdict. The trial court further instructed the jury that, “if
[it is] convinced that the defendant committed an offense, [it] should consider the defendant’s
claim that he was legally insane.” The trial court also instructed the jury to consider whether
defendant was mentally ill, but not legally insane, if it is convinced that defendant was guilty of a
crime. Reviewing the jury instructions in their entirety, we conclude that the jury was properly
instructed and defendant’s right to a jury trial was therefore not violated. See Aldrich, 246 Mich
App at 124.

       Defendant next asserts that defense counsel was ineffective due to his failure to present
an expert witness concerning defendant’s legal insanity and mental illness. We disagree.

        Defense counsel has wide discretion as to matters of trial strategy. Unger, 278 Mich App
at 242. This Court presumes that decisions regarding whether to call or question a witness,
including an expert witness, are matters of trial strategy. People v Russell, 297 Mich App 707,
716; 825 NW2d 623 (2012). “[T]he failure to call witnesses only constitutes ineffective
assistance of counsel if it deprives the defendant of a substantial defense,” i.e., a defense that
might have made a difference in the outcome of the trial. People v Dixon, 263 Mich App 393,
398; 688 NW2d 308 (2004); People v Marshall, 298 Mich App 607, 612; 830 NW2d 414 (2012),
vacated in part on other grounds, 493 Mich 1020, 829 NW2d 876 (2013). Trial counsel is not,
however, ineffective for failing to make meritless objections. People v Matuszak, 263 Mich App
42, 58; 687 NW2d 342 (2004).

        Defense counsel sought an independent psychological evaluation of defendant and he
additionally underwent a psychological examination by the state. On both occasions, the
examiner concluded that there was no basis to find that defendant was criminally insane at the
time of the offense. Thus, defense counsel attempted to cross-examine the prosecution’s expert,
focusing on the psychologist’s lack of experience and arguing that the psychologist failed to
diagnose a personality disorder when she examined defendant. Additionally, defense counsel
focused on the defense of insanity for a verdict of not guilty, rather than presenting testimony to
distinguish between the verdicts of guilty and guilty but mentally ill. We conclude that defense
counsel’s decision to abstain from presenting an expert witness was a sound trial strategy. See
People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

        Additionally, defendant failed to show that defense counsel’s alleged deficient
performance prejudiced his case or deprived him of a substantial defense. Defense counsel
raised the defense of insanity, even without an expert, and attempted to support that defense.

                                                -4-
The jury was instructed on the relevant verdict options, including the insanity defense and the
verdict of guilty but mentally ill. We conclude that defendant failed to establish that defense
counsel’s performance fell below an objective standard of reasonableness and that there was a
reasonable probability that the jury verdict would have been different. See Strickland, 466 US at
687-688; Solmonson, 261 Mich App at 663-664.

        Finally, in a Standard 41 brief, defendant argues that he did not receive effective
assistance of counsel because his defense counsel failed to object to the bind over to the circuit
court on the charge of first-degree premeditated murder. We disagree.

        Defendant did not raise this issue in a motion for a new trial or in a request for an
evidentiary hearing. See Ginther, 390 Mich at 443; Wilson, 242 Mich App at 352. Therefore,
this issue is not properly preserved for appellate review. However, this Court may review
unpreserved issues regarding ineffective assistance of counsel. In doing so, this Court’s review
is limited to errors apparent on the record. Matuszak, 263 Mich App at 48.

        “Defense counsel must be afforded broad discretion in the handling of cases.” Pickens,
446 Mich at 325 (quotation marks and citation omitted). And, trial counsel is not ineffective for
failing to raise a futile objection or make a futile a motion. People v Fonville, 291 Mich App
363, 384; 804 NW2d 878 (2011) (quotation marks and citation omitted). Trial counsel’s
decision to abstain from challenging the sufficiency of the evidence to support probable cause
and thus, a bind over, is not deficient if there was sufficient evidence to create a question of fact
regarding whether the defendant committed the acts as charged. Id.2

        Contrary to defendant’s argument, defense counsel objected to the prosecutor’s motion
for a bind over on the charge of first-degree premeditated murder. Defense counsel argued at the
conclusion of the preliminary examination that it was more appropriate to bind over defendant to
the circuit court on the charge of open murder, a charge that included both first-degree
premeditated murder and second-degree murder. Defense counsel in fact performed the conduct
that defendant alleged was the basis of his ineffective assistance of counsel claim. Additionally,
the jury fairly convicted defendant of first-degree premeditated murder, and the jury had the
option to find defendant guilty of second-degree murder or not guilty of either offense.
Therefore, the objection to the district court’s decision to bind over defendant to the circuit court
on the charge of first-degree premeditated murder was futile. See Fonville, 291 Mich App at




1
    See, Admin. Order No. 2004-6.
2
  See also People v Wilson, 469 Mich 1018; 677 NW2d 29 (2004) (“If a defendant is fairly
convicted at trial, no appeal lies regarding whether the evidence at the preliminary examination
was sufficient to warrant a bindover.”).


                                                 -5-
384. We conclude that defendant failed to establish that defense counsel’s performance fell
below an objective standard of reasonableness and that there was a reasonable probability that
the jury verdict would have been different. See Strickland, 466 US at 687-688; Solmonson, 261
Mich App at 663.

       Affirmed.



                                                         /s/ Jane M. Beckering
                                                         /s/ Deborah A. Servitto
                                                         /s/ Cynthia Diane Stephens




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