                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 29, 2016
              Plaintiff-Appellee,

v                                                                  No. 328119
                                                                   Wayne Circuit Court
MARK SHAPPELL DORCH,                                               LC No. 14-009454-FC

              Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals as of right his convictions following a jury trial of second-degree
murder, MCL 750.317, five counts of assault with intent to do great bodily harm less than
murder (AWIGBH), MCL 750.84, and one count of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to 30 to 60 years’
imprisonment for the murder conviction, 2 to 10 years’ imprisonment for each of the AWIGBH
convictions, and 2 years’ imprisonment for the felony-firearm conviction. We affirm.

        Defendant shot and killed Mary Spears, and he then shot five other individuals when he
sprayed bullets into a retreating group of people. The shootings occurred outside a club in
Detroit. Defendant claimed that he acted in self-defense. Prior to the shootings, there was an
incident inside the club between defendant and Spears, who was with family and friends.
Witnesses testified that the two had some sort of exchange, followed by defendant punching
Spears in the face. Spears’s relatives responded by hitting defendant, who was then escorted out
of the venue by security staff. Spears and her circle of friends and family subsequently exited
the club.

        Once outside, defendant and Spears approached one another. One of Spears’s family
members testified that she, the family member, yelled out, “He’s got a gun, run,” and a group of
people ran toward Spears and defendant. One witness explained that the group stood behind
defendant, unbeknownst to him, and that Spears’s fiancé hit defendant “in the back of the head.”
Defendant asserted that it was at that time he drew his gun from his holster, although video
surveillance footage appeared to show that defendant had the gun in his hand before any
altercation occurred. Defendant agreed that the video footage showed him “raising [the gun]
very quickly” and shooting Spears after he was hit. Defendant testified, “I feared for my life. I
was getting attacked by a group of people and I feared for my life.” Defendant turned around

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and “emptied the clip” at the people running away from him. Five individuals, aside from
Spears, were struck by one or more bullets.

        Defendant argues on appeal that he was denied the effective assistance of counsel when
defense counsel did not request an instruction on voluntary manslaughter. We granted
defendant’s motion to remand for a Ginther1 hearing.2 At the hearing, defense counsel testified
that he did not request the instruction because he thought it was “frivolous.” Defense counsel
indicated that his opinion was based on an enhanced photograph taken from the video footage
admitted at trial showing that defendant had his gun drawn before he was hit from behind.
Defense counsel also believed that a voluntary manslaughter instruction was not warranted
because defendant “was not struck from behind by [Spears],” and therefore Spears “was actually
a[n] innocent third person.” The trial court concluded that requesting the instruction would have
been meritless and denied defendant’s motion for a new trial.

        Whether counsel was ineffective presents a mixed question of fact and constitutional law,
which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884
(2001), our Supreme Court, addressing the basic principles governing a claim of ineffective
assistance of counsel, observed:

                 To justify reversal under either the federal or state constitutions, a
         convicted defendant must satisfy the two-part test articulated by the United States
         Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
         2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
         (1994). “First, the defendant must show that counsel’s performance was deficient.
         This requires showing that counsel made errors so serious that counsel was not
         performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
         supra at 687. In so doing, the defendant must overcome a strong presumption that
         counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
         defendant must show that the deficient performance prejudiced the defense.” Id.
         at 687. To demonstrate prejudice, the defendant must show the existence of a
         reasonable probability that, but for counsel’s error, the result of the proceeding
         would have been different. Id. at 694. “A reasonable probability is a probability
         sufficient to undermine confidence in the outcome.” Id. Because the defendant
         bears the burden of demonstrating both deficient performance and prejudice, the
         defendant necessarily bears the burden of establishing the factual predicate for his
         claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 People v Dorch, unpublished order of the Court of Appeals, entered January 21, 2016 (Docket
No. 328119)


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        Voluntary manslaughter is a necessarily included lesser offense of murder, and therefore
“when a defendant is charged with murder, an instruction for voluntary . . . manslaughter must be
given if supported by a rational view of the evidence.” People v Mendoza, 468 Mich 527, 541;
664 NW2d 685 (2003). “[D]etermining whether a rational view of the evidence may support . . .
manslaughter . . . requires considering whether a rational jury could conclude that the defendant
did not act with malice . . . .” People v Holtschlag, 471 Mich 1, 15 n 8; 684 NW2d 730 (2004).
“[T]o show voluntary manslaughter, one must show that the defendant killed in the heat of
passion, the passion was caused by adequate provocation, and there was not a lapse of time
during which a reasonable person could control his passions.” Mendoza, 468 Mich at 535.
“[P]rovocation is not an element of voluntary manslaughter.” Id. at 536. Instead, “provocation
is the circumstance that negates the presence of malice.” Id. “The provocation necessary to
mitigate a homicide from murder to manslaughter is that which causes the defendant to act out of
passion rather than reason.” People v Sullivan, 231 Mich App 510, 518; 586 NW2d 578 (1998)
(emphasis added). “Passion, in the context of voluntary manslaughter, describes a state of mind
incapable of cool reflection.” People v Hopson, 178 Mich App 406, 411; 444 NW2d 167 (1989).
“[T]he provocation must be adequate, namely, that which would cause a reasonable person to
lose control.” Sullivan, 231 Mich App at 518.

        Defendant’s own testimony reflected that he did not act out of passion and did not lose
control; rather, his testimony revealed that upon being assaulted, he acted out of reason,
reflection, however brief, and with control, determining that he needed to shoot Spears in order
to defend himself. The evidence did not indicate that, upon being struck from behind, defendant
became incensed and lost control, provoking him to shoot Spears out of passion. Defendant’s
argument on appeal conflates self-defense and heat of passion, suggesting that evidence showing
that an act was taken in self-defense necessarily supports a voluntary manslaughter instruction.
Moreover, the question of whether a rational view of the evidence supported a voluntary
manslaughter instruction was, at best, a close question, such that the decision to forgo requesting
a voluntary manslaughter instruction cannot be viewed as falling below an objective standard of
reasonableness. In an earlier trial regarding the shootings, the jury was hung on the offense of
second-degree murder, with defendant solely arguing self-defense, absent any claim of or
instruction on voluntary manslaughter. Counsel’s decision to take that same approach in the trial
here was quite reasonable and did not constitute ineffective assistance.

        Additionally, assuming deficient performance by defense counsel, defendant simply
cannot show the requisite prejudice. First, given the ruling at the Ginther hearing, the trial court
ostensibly would not have instructed on voluntary manslaughter even had an instruction been
requested by defense counsel. Second, and more importantly, the jury determined that defendant
indeed acted with malice in finding him guilty of second-degree murder, and it rejected the claim
of self-defense, necessarily concluding that the prosecution had proven beyond a reasonable
doubt that defendant had not acted in self-defense. And defendant relies on the very same
evidence that he argued to the jury in support of his self-defense theory to support his voluntary
manslaughter argument on appeal. Therefore, it would be nonsensical for us to conclude that the
jury, which did not accept the self-defense claim, would have been open to finding defendant
guilty of voluntary manslaughter instead of second-degree murder. Reversal is unwarranted.

        Defendant also argues that he was denied his constitutional right to a jury trial when the
trial court ordered him to pay restitution for Spears’s funeral expenses, given that restitution is a
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form of punishment and any underlying supportive facts regarding the amount owed were for a
jury to resolve. We rejected this precise argument in People v Corbin, 312 Mich App 352, 371-
373; 880 NW2d 2 (2015). Accordingly, being bound by Corbin, MCR 7.215(J)(1), we reject
defendant’s argument. And defendant’s associated claim of ineffective assistance based on the
failure of defense counsel to raise the issue below must fail, as counsel is not required to raise
futile objections, People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), nor can
prejudice be established.

       Affirmed.



                                                            /s/ Kathleen Jansen
                                                            /s/ William B. Murphy
                                                            /s/ Michael J. Riordan




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