                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 12, 2016
                Plaintiff-Appellee,

v                                                                    No. 325055
                                                                     Genesee Circuit Court
AARON DOMINIQUE IVORY,                                               LC No. 14-035239-FC

                Defendant-Appellant.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of first-degree felony murder, MCL
750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. We affirm.

        Defendant’s convictions arise from an armed robbery in the parking lot of a party store
that resulted in the victim being shot to death. After his arrest, defendant confessed to the
shooting, but stated that it was an accident. At trial, defendant testified that he was not involved
in the crime at all; he had only confessed because he had been threatened and feared for the
safety of his family. Defendant was convicted as charged.

        On appeal, defendant argues that he was denied his right to effective assistance of
counsel because defense counsel failed to request jury instructions on the necessarily included
lesser offenses of second-degree murder and involuntary manslaughter. We disagree.

       To preserve a claim of ineffective assistance of trial counsel, a defendant must move for a
new trial or for a Ginther1 hearing in the trial court. People v Lopez, 305 Mich App 686, 693;
854 NW2d 205 (2014). Because defendant did not do so, this issue is not preserved and our
review is limited to errors apparent on the record. See id. (citation omitted).

       To establish a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance was below an objective standard of reasonableness and there is a


1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


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reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000).
Effective assistance of counsel is presumed, and the defendant bears a substantial burden of
proving otherwise. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). There is a
strong presumption that defense counsel employed effective trial strategy. People v Payne, 285
Mich App 181, 190; 774 NW2d 714 (2009). This Court “will not substitute our judgment for
that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when
assessing counsel’s competence.” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272
(2008).

        The elements of first-degree felony murder are that a human being was killed by a person
with malice2 who was committing, attempting to commit, or assisting in the commission of a
felony enumerated in MCL 750.316(1)(b), which includes robbery. People v Smith, 478 Mich
292, 318-319; 733 NW2d 351 (2007). The difference between first-degree felony murder and
second-degree murder is the absence of the predicate felony supporting the charge of felony
murder. “[S]econd-degree murder is first-degree murder minus . . . the enumerated felony.”
People v Clark, 274 Mich App 248, 257; 732 NW2d 605 (2007), quoting People v Carter, 395
Mich 434, 437-438; 236 NW2d 500 (1975). And involuntary manslaughter is the unintentional
killing of another, a homicide “committed with a lesser mens rea of gross negligence or an intent
to injure, and not malice.” People v Gillis, 474 Mich 105, 138; 712 NW2d 419 (2006), quoting
People v Holtschlag, 471 Mich 1, 21-22; 684 NW2d 730 (2004).

        Here, for a second-degree murder jury instruction to be applicable, evidence must have
existed from which a jury could rationally conclude that defendant killed the victim, with malice,
but not during the commission of an armed robbery. The record evidence included that
defendant told police he used a gun to commit the armed robbery, but claimed that the shooting
was an accident. At trial, defendant denied any involvement in the crime. Thus, a jury could not
rationally conclude that defendant killed the victim, with malice, but not during the commission
of an armed robbery. Accordingly, his counsel was not ineffective for failing to request a jury
instruction on second-degree murder because counsel is not required to argue meritless positions.
See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

        Similarly, for an involuntary manslaughter jury instruction to be applicable, evidence
must have existed from which a jury could rationally conclude that the victim’s death was caused
by gross negligence or an intent to injure that did not amount to malice. Gillis, 474 Mich at 138.
Again, the record evidence included that defendant told police he used a gun to commit the
armed robbery, but claimed that the shooting was an accident. Defendant stated that the victim
had begun “reaching” during the confrontation, but defendant did not aim the gun at the victim;
if anything, defendant thought the gun was going to shoot the car. The use of a deadly weapon



2
  “Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do
an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579 NW2d 868
(1998).


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to rob the victim, and then to fire a gunshot near him that ultimately killed him, amounts to
malice. See Goecke, 457 Mich at 464; see also People v Bulls, 262 Mich App 618, 627; 687
NW2d 159 (2004). In light of the record evidence, a jury could not rationally conclude that
defendant shot the victim to death, but that the death was caused by gross negligence or an intent
to injure that did not amount to malice. See Gillis, 474 Mich at 138; People v McMullan, 284
Mich App 149, 153; 771 NW2d 810 (2009). Accordingly, defense counsel was not ineffective
for failing to request a jury instruction on involuntary manslaughter because counsel is not
required to argue meritless positions. See Ericksen, 288 Mich App at 201.

        Moreover, even if a rational view of the evidence supported either of the lesser included
offense instructions, requesting these jury instructions would have been inconsistent with defense
counsel’s trial strategy to create a reasonable doubt that defendant was even involved in the
armed robbery and shooting. Although “a defendant in a criminal matter may advance
inconsistent claims and defenses[,]” People v Cross, 187 Mich App 204, 205-206; 466 NW2d
368 (1991), failing to request an instruction when it is inconsistent with a defense theory and
might damage a defendant’s case is a matter of trial strategy, People v Gonzalez, 468 Mich 636,
645; 664 NW2d 159 (2003). This Court will not second-guess counsel on matters of trial
strategy. People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).

       Affirmed.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




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