                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 8, 2016
               Plaintiff-Appellee,

v                                                                  No. 328579
                                                                   Wayne Circuit Court
FERNANDO ANTON KEATHLEY-MITCHELL,                                  LC No. 14-008097-01-FC
also known as FERNANDO KEATHLY
MITCHELL,

               Defendant-Appellant.


Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), assault
with intent to rob while armed, MCL 750.89, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life
imprisonment without parole for the felony-murder conviction and a concurrent prison term of
11 to 30 years’ imprisonment for the assault conviction, to be served consecutive to a two-year
term of imprisonment for the felony-firearm conviction. Defendant appeals as of right, and we
affirm.

       Defendant’s convictions arise from the July 24, 2014 shooting death of Merton Grundy.
Vincent Houston, who was Grundy’s friend and neighbor, testified that Grundy was shot during
a robbery at Houston’s house. According to Houston, the robbery was committed by two
gunman, one of whom was wearing a mask, and it was the masked gunman who shot Grundy
after Grundy lunged at the man. After Grundy was shot, the other robber stole a cookie tin
containing marijuana.

       The police focused on defendant as a suspect after receiving an anonymous telephone
call. When the police interviewed defendant, he initially denied being involved in the offense.
Upon further questioning, however, defendant admitted his involvement and stated that he wore
a mask because he knew that Houston would recognize him. Houston was familiar with
defendant because Houston had previously sold marijuana to defendant’s girlfriend. Defendant
claimed during his interview that he participated in the offense along with a person identified as
“DJ,” whom defendant identified as the shooter. According to defendant, DJ was not wearing a


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mask. Defendant also denied possessing an actual firearm during the offense, claiming instead
that he used a handgun that had been converted into a BB gun.

                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant argues, in both his brief on appeal and his Standard 4 brief on appeal, that the
evidence was insufficient to support his convictions of first-degree felony murder and felony-
firearm. We disagree.

        In reviewing a challenge to the sufficiency of the evidence, this Court reviews the
evidence de novo, viewing it in a light most favorable to the prosecution, to determine whether a
rational trier of fact could have found that the essential elements of the charged crime were
proven beyond a reasonable doubt. People v Lane, 308 Mich App 38, 57; 862 NW2d 446
(2014). Circumstantial evidence and any reasonable inferences arising from the evidence may be
sufficient to prove the elements of a crime. People v Brantley, 296 Mich App 546, 550; 823
NW2d 290 (2012). “This Court will not interfere with the trier of fact’s role of determining the
weight of the evidence or the credibility of witnesses.” People v Kanaan, 278 Mich App 594,
619; 751 NW2d 57 (2008). All conflicts in the evidence must be resolved in favor of the
prosecution. Id.

                                     A. FELONY MURDER

               The elements of felony murder are (1) the killing of a person, (2) with the
       intent to kill, do great bodily harm, or create a high risk of death or great bodily
       harm with the knowledge that death or great bodily harm was the probable result,
       (3) while committing, attempting to commit, or assisting in the commission of an
       enumerated felony. [Lane, 308 Mich App at 57-58.]

Robbery is an enumerated felony. MCL 750.316(1)(b). The jury was instructed on an aiding
and abetting theory of guilt. Aiding and abetting felony murder requires proof that the defendant

       (1) performed acts or gave encouragement that assisted the commission of the
       killing of a human being, (2) with the intent to kill, to do great bodily harm, or to
       create a high risk of death or great bodily harm with knowledge that death or great
       bodily harm was the probable result, (3) while committing, attempting to commit,
       or assisting in the commission of the predicate felony.

               In order to satisfy the malice standard . . . the prosecution must show that
       the aider and abettor either intended to kill, intended to cause great bodily harm,
       or wantonly and willfully disregarded the likelihood that the natural tendency of
       his behavior was to cause death or great bodily harm. Further, if an aider and
       abettor participates in a crime with knowledge of the principal’s intent to kill or to
       cause great bodily harm, the aider and abettor is acting with “wanton and willful
       disregard” sufficient to support a finding of malice. [People v Riley (After
       Remand), 468 Mich 135, 140-141; 659 NW2d 611 (2003) (citations omitted).]




                                                -2-
        Defendant does not dispute that there was sufficient evidence to prove that he willingly
participated in the charged offense. He argues, however, that he could not be convicted of felony
murder because he only possessed a BB gun, and because he did not know that his accomplice
possessed a real firearm. We disagree.

       Although defendant claimed during his police interview that he only possessed a BB gun,
and he denied being the shooter, sufficient evidence permitted the jury to discredit both of these
claims. Defendant admitted during his interview that he was the person wearing a mask. He
explained that he wore a mask because, otherwise, Houston would have recognized him.
Houston unequivocally testified at trial that the masked suspect was the person who shot Grundy.
This evidence was sufficient to enable the jury to find beyond a reasonable doubt that defendant
was the shooter. Although defendant claimed during his interview that he was armed only with a
BB gun, he stated that the gun was an actual firearm that was converted to a BB gun. Detroit
Police Sergeant Andrew Dattolo stated that it was not possible to convert a real firearm to a BB
gun. In addition, the police recovered a fired .380-caliber shell casing at the scene. Given this
evidence, the jury reasonably could have rejected any claim that defendant was armed only with
a BB gun, and found instead that he was armed with an actual firearm.

        Sufficient evidence also permitted the jury to find that even if defendant was not the
shooter, he was guilty of felony murder under an aiding and abetting theory. Defendant contends
that the evidence did not show that he was aware of his accomplice’s possession of, or intent to
use, a real firearm during the robbery. However, Houston testified that when he opened his door
to let Grundy inside his house, two people were standing behind Grundy, and both men were
pointing guns over Grundy’s head toward Houston. This evidence supports an inference that the
two suspects shared a common intent, and that each participated in the offense with knowledge
that the other was armed with a firearm. Further, assuming that defendant was not the shooter,
Houston testified that after the first suspect shot Grundy, the second suspect continued to point
his gun at Houston and told Houston, “You see what happened to your friend. Where that
money at?” This statement supports a finding that the second suspect contemplated that Houston
would also be shot if he did not cooperate, thus indicating that the second suspect participated in
the offense with knowledge that the natural tendency of his behavior was to cause death or great
bodily harm and with wanton and willful disregard for that natural tendency. Accordingly,
sufficient evidence supports defendant’s conviction of felony murder, either as a direct principal
or an aider or abettor.

                                    B. FELONY-FIREARM

       We also reject defendant’s argument that the evidence was insufficient to support his
felony-firearm conviction. “ ‘The elements of felony-firearm are that the defendant possessed a
firearm during the commission of, or the attempt to commit, a felony.’ ” People v Johnson, 293
Mich App 79, 82-83; 808 NW2d 815 (2011) (citation omitted). Defendant contends that he
could not be convicted of felony-firearm because the evidence showed that he only possessed a
BB gun, which does not qualify as a “firearm.” Before August 10, 2015, MCL 750.222(d), as
amended by 2012 PA 242, defined a “firearm” as including “a weapon from which a dangerous




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projectile may be propelled by an explosive, or by gas or air. Firearm does not include a smooth
bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by
gas or air, BBs not exceeding .177 caliber.”1

         As previously explained, the evidence was sufficient to refute defendant’s claim that he
only possessed a BB gun that did not meet the legal definition of a firearm. The evidence
supported a finding that defendant was the masked gunman, whom Houston identified as the
shooter. In addition, the evidence describing the nature of Grundy’s gunshot wound and the
recovery of a .380-caliber shell casing at the scene supports an inference that Grundy was shot
with a weapon that met the statutory definition of a firearm.2 Finally, although defendant
claimed that the gun was an actual firearm that was converted into a BB gun, Sergeant Dattolo
testified that it was not possible to convert a real firearm into a BB gun. Accordingly, the
evidence was sufficient to support defendant’s felony-firearm conviction.

                                   II. ANONYMOUS TIPSTER

        Next, defendant argues that he is entitled to a new trial because the jury heard testimony
that the police associated defendant with this incident from information supplied by an
anonymous tipster. Defendant argues that the testimony referring to information supplied by an
anonymous caller was inadmissible because it was testimonial in nature and its admission
violated defendant’s right of confrontation because he was not able to confront the anonymous
caller. He further argues that his defense counsel was ineffective for failing to object. We
disagree.

        Because there was no objection to the testimony in question on Confrontation Clause
grounds, the Confrontation Clause issue is unpreserved. See People v Benton, 294 Mich App
191, 202; 817 NW2d 599 (2011). An unpreserved claim of error is reviewed for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). With
regard to defendant’s ineffective assistance of counsel claim, defendant failed to preserve the
issue by raising it in a motion for a new trial or a Ginther3 hearing, and our review of this issue is


1
  The statute was amended after defendant’s trial by 2015 PA 28, effective August 10, 2015, to
redefine a “firearm” as “any weapon which will, is designed to, or may readily be converted to
expel a projectile by action of an explosive.” MCL 750.222(e).
2
  To the extent defendant suggests that he could not have been found guilty of assault with intent
to rob while armed, or could not have committed an armed robbery, unless he possessed a gun
that met the legal definition of a firearm, he is mistaken. Those offenses do not require the use
of an actual firearm. They only require that the offender be armed with (1) an “article used or
fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous
weapon,” MCL 750.89 (assault with intent to rob while armed), or “an article used or fashioned
in a manner to lead any person present to reasonably believe the article is a dangerous weapon,”
MCL 750.529 (armed robbery). Nevertheless, the evidence was sufficient to prove that
defendant possessed an actual firearm during the commission of the charged offense.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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therefore limited to errors apparent from the record. People v Lopez, 305 Mich App 686, 693;
854 NW2d 205 (2014). A claim of ineffective assistance of counsel is a mixed question of fact
and law. Lane, 308 Mich App at 67. “Generally this Court reviews for clear error the trial
court’s findings of fact and reviews de novo questions of law.” Id. at 68.

       In People v Chambers, 277 Mich App 1, 10-11; 742 NW2d 610 (2007), this Court stated:

               A defendant has the right to be confronted with the witnesses against him
       or her. The Confrontation Clause prohibits the admission of all out-of-court
       testimonial statements unless the declarant was unavailable at trial and the
       defendant had a prior opportunity for cross-examination. A statement by a
       confidential informant to the authorities generally constitutes a testimonial
       statement. However, the Confrontation Clause does not bar the use of out-of-
       court testimonial statements for purposes other than establishing the truth of the
       matter asserted. Thus, a statement offered to show the effect of the out-of-court
       statement on the hearer does not violate the Confrontation Clause. Specifically, a
       statement offered to show why police officers acted as they did is not hearsay.
       [Citations omitted.]

This Court rejected the defendant’s claim that information about an informant’s tip to an FBI
agent violated the defendant’s right of confrontation. Id. at 11. This Court explained:

                In the present case, the challenged testimony did not violate defendant’s
       right of confrontation. The testimony was not offered to establish the truth of the
       informant’s tip. Rather, it was offered to establish and explain why the detective
       organized a surveillance of defendant’s home and how defendant came to be
       arrested. Because the Confrontation Clause does not bar the use of out-of-court
       testimonial statements for purposes other than establishing the truth of the matter
       asserted, the testimony did not violate defendant’s right of confrontation. Thus,
       the trial court did not plainly err when it admitted the detective’s testimony. In
       addition, because the testimony did not violate defendant’s right of confrontation,
       any objection to the testimony would have been futile. Counsel is not ineffective
       for failing to make a futile objection. Accordingly, defendant was not denied the
       effective assistance of counsel. [Citation omitted.]

        In the case at bar, the jury heard that the police identified defendant as a possible suspect
in the charged offense on the basis of information provided by an anonymous tipster. That
information was not offered to prove the truth of the information supplied by the tipster, but to
explain why the police identified defendant as a possible suspect and decided to question him
about his involvement in the offense. Because the testimony was not offered to establish the
truth of any information provided by the caller, its admission did not violate the Confrontation
Clause. Additionally, even assuming that the testimony was improper, defendant cannot show
that the error affected the outcome of the trial because defendant confirmed in his police
interview that he was present at the scene of the incident and participated in the robbery. Thus,
the testimony indicating that an anonymous tipster connected defendant with the crime did not
prejudice defendant. Further, because the testimony was not improper, defense counsel was not
ineffective for failing to object to the testimony. People v Ericksen, 288 Mich App 192, 201;

                                                -5-
793 NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.”).

                          III. DEFENDANT’S STANDARD 4 BRIEF

       Defendant raises additional issues in his Standard 4 brief, none of which have merit.

                                     A. BRADY VIOLATION

        Defendant argues that the prosecutor violated his duty under Brady v Maryland, 373 US
83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), to disclose all exculpatory evidence to the defense.
Because defendant failed to raise this issue below, it is unpreserved and our review is limited to
plain error affecting defendant’s substantial rights. See People v Cox, 268 Mich App 440, 448-
450; 709 NW2d 152 (2005).

        To establish a Brady violation, defendant must show that (1) the prosecution suppressed
evidence; (2) the evidence was favorable to defendant; and (3) viewed in its totality, the evidence
is material. People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). Defendant argues
that the prosecution suppressed evidence by not calling certain witnesses, including some who
defendant contends were interviewed by the police. However, the only witness or witnesses
defendant refers to are unnamed persons who called Crime Stoppers with information about this
case, which led the police to focus on defendant as a potential suspect. First, there is no evidence
that the prosecution suppressed any evidence related to the tips received in relation to this
investigation. Although Sergeant Dattolo testified at trial that information was received from an
“anonymous” caller, there is no evidence that the police had information about the tipster’s
identity, or that the police actually interviewed any tipsters. Second, there is no basis for
concluding that any information provided by a tipster was favorable to defendant. Indeed, the
record discloses that the information caused the police to focus on defendant as a suspect. Third,
there is no indication that any tipster had any personal knowledge of the offense. Thus, there is
no basis for concluding that any additional information from the tipster or tipsters would have
been material to defendant’s defense. Accordingly, we reject defendant’s claim of a Brady
violation.

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that defense counsel was ineffective for (1) not calling as a
witness defendant’s cousin, Anthony Young, who had possession of the BB gun that defendant
claimed to have used during the offense; and (2) not challenging the prosecution’s case. Because
defendant failed to raise an ineffective assistance of counsel claim in a motion for a new trial or a
Ginther hearing, the issue is unpreserved, and our review of this issue is limited to errors
apparent from the record. Lopez, 305 Mich App at 693. A claim of ineffective assistance of
counsel is a mixed question of fact and law. Lane, 308 Mich App at 67. “Generally this Court
reviews for clear error the trial court’s findings of fact and reviews de novo questions of law.”
Id. at 68.

       To establish ineffective assistance of counsel, defendant must show that “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s

                                                -6-
deficient performance, there is a reasonable probability that the outcome would have been
different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). Defendant must
overcome the strong presumption that the challenged action stemmed from sound trial strategy.
Id. at 52.

         “Decisions regarding whether to call or question witnesses are presumed to be matters of
trial strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Trial
counsel’s failure to call a witness only constitutes ineffective assistance if the failure deprived
the defendant of a substantial defense. Id. A substantial defense is defined as one that might
have made a difference in the trial’s outcome. People v Chapo, 283 Mich App 360, 371; 770
NW2d 68 (2009). “This Court will not substitute its judgment for that of trial counsel regarding
matters of trial strategy, even if that strategy backfired.” People v Rodgers, 248 Mich App 702,
715; 645 NW2d 294 (2001).

        Defendant asserts that he informed his attorney that Young had the gun that defendant
used during the offense. Defendant also told the police in his interview that Young had the gun.
However, it is not apparent from the record whether defense counsel contacted Young or
otherwise investigated defendant’s claim that Young had the gun that defendant allegedly used
during the offense. Moreover, defendant has not submitted any affidavit from Young indicating
that he actually had the gun and explaining the circumstances under which he acquired the gun
from defendant, or how defendant obtained it from Young to use during the offense. See People
v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (“[D]efendant has the burden of establishing the
factual predicate for his claim of ineffective assistance of counsel[.]”). Furthermore, even if
Young did possess a BB gun, that would not have established that it was the gun used by
defendant during the offense. In light of this, and given Sergeant Dattolo’s testimony that it was
impossible to convert a real firearm to a BB gun as defendant claimed, as well as the other
circumstantial evidence that a real firearm was used to commit the offense, counsel reasonably
may have determined that it would have been more harmful that helpful to have Young testify
about a BB gun in his possession. Accordingly, defendant has not shown that counsel was
ineffective for failing to call Young as a witness. In addition, without an appropriate offer of
proof from Young, defendant has not demonstrated that this matter should be remanded for an
evidentiary hearing on this issue.

       Defendant also has not shown that defense counsel failed to challenge the prosecutor’s
case. Although defendant complains that counsel asked the same questions that were asked at
defendant’s first trial, which ended in a mistrial, defendant fails to explain why those questions
were improper. The questioning of witnesses is presumed to be a matter of trial strategy. People
v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defendant fails to identify any particular
question that counsel failed to ask, or any particular subject matter that counsel failed to explore.
Defendant has not demonstrated that counsel was ineffective simply because he did not question
the witnesses differently. Accordingly, his ineffective assistance of counsel claim is without
merit.




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Affirmed.



                  /s/ Kathleen Jansen
                  /s/ Mark J. Cavanagh
                  /s/ Mark T. Boonstra




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