                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 24, 2015
              Plaintiff-Appellee,

v                                                                   No. 319154
                                                                    Saginaw Circuit Court
DAQUAVIS DESHAW MARTIN,                                             LC No. 13-038567-FC

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his conviction following a jury trial of first-degree
premeditated murder, MCL 750.316(1)(a). He was sentenced to mandatory life in prison without
the possibility of parole. We affirm.

        Defendant and three accomplices brutally beat a 52-year-old man to death. The assault
took place at night in the yard of an individual who was alerted to the attack after hearing some
commotion and loud voices near his living room window. He stepped outside onto the porch
and witnessed the ongoing assault on the sidewalk in front of his home. We shall hereafter refer
to this individual as “the eyewitness.” The eyewitness testified, “As soon as I stepped on the
porch, four were hitting and kicking [the victim]. Yeah, all four were hitting and kicking[.]”
The eyewitness identified defendant as one of the perpetrators of the assault from a photographic
lineup and at trial. According to the eyewitness, the four assailants ignored his presence on the
porch for about 15 to 20 seconds, while continuing to mercilessly strike and kick the defenseless
victim. When the eyewitness thereafter spoke up and demanded to know what was going on,
two of the assailants backed away, but the other two, including defendant, continued the assault,
with, among other blows, defendant kicking the victim in the torso and the other assailant
striking the victim with a candy cane Christmas decoration. The eyewitness further testified:

              Q.      When you . . . stepped on . . . your front porch, the victim was
                      lying on the cement leading to your home, is that correct?

              A.      Correct.

              Q.      Was that person making any defensive moves whatsoever?



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               A.     At the time I stepped on the porch it appeared he was unconscious
                      so he was – he wasn’t able to defend himself at that time. He
                      wasn’t moving his arms or anything . . . .

               Q.     And this was what you’ve estimated 15 to 20 seconds that you
                      watched prior to saying something?

               A.     That’s correct.

               Q.     And even after you said something, the two . . . individuals, the
                      defendant and another . . ., continued to beat him?

               A.     That’s correct.

The eyewitness also testified that defendant blurted out that he was robbing the victim, and the
eyewitness explained that he observed defendant rifling through the victim’s clothes.

        The forensic pathologist who performed the autopsy described the following injuries
suffered by the victim: numerous bruises and lacerations on the victim’s face and head (“he had
bruises from front to back all around the head”); broken teeth; a sunken eye socket; multiple
fractures of the mandible; bruises, lacerations, and abrasions about the torso; four broken ribs;
internal bleeding in the chest cavity; extensive bleeding throughout the brain; and blood clots in
the brain’s ventricles (“When there is blood in these ventricles it is considered a very serious
injury because energy has to go through – not only through the skull but through the brain to
cause the bleeding inside of the cavity we call ventricles”). The pathologist opined that a
significant amount of force was employed to cause the victim’s injuries and that the cause of
death was “[b]lunt force head trauma.” The jury was shown autopsy photographs that were
referred to during the pathologist’s testimony.

       One of defendant’s accomplices, who pled guilty to second-degree murder, testified
about his and defendant’s presence at the crime scene and that he was “pretty sure” that his
“peoples played a part” in the attack, although he was not exactly sure “who all.” The
accomplice testified that no one in the group stood back and asked the assailants to stop the
attack. Defendant testified that he was at the crime scene but denied being involved in the
beating. He claimed that he tried to break up the attack, telling the others to stop.

       Defendant first argues that there was insufficient evidence to support his conviction with
respect to the “intent to kill” and “premeditation and deliberation” elements of first-degree
murder.1 We disagree. To convict a defendant of first-degree premeditated murder, the


1
  We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial
– in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646

                                               -2-
prosecution must prove that the defendant caused the death of the victim, that the defendant
intended to kill the victim (malice), that the intent to kill was premeditated and deliberate, and
that the killing was not justified or excused, if at issue. MCL 750.316(1)(a); People v Mendoza,
468 Mich 527, 533-534; 664 NW2d 685 (2003); People v Kelly, 231 Mich App 627, 642; 588
NW2d 480 (1998); M Crim JI 16.1.

        With respect to the intent to kill, it is well settled that such intent may be inferred from
any facts in evidence. People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008).
“Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is
sufficient to establish a defendant’s intent to kill.” Id. The intent to kill may be gleaned from the
nature of the defendant's acts that constituted the assault, the temper or disposition of mind with
which the acts were apparently performed, whether the means used would naturally produce
death, any declarations by the defendant, and all other circumstances calculated to throw light
upon the intention with which the assault was made. People v Brown, 267 Mich App 141, 149 n
5; 703 NW2d 230 (2005). There is “no doubt that kicking a man to death can constitute first
degree murder if the clear intent to kill is present.” People v Van Camp, 356 Mich 593, 601; 97
NW2d 726 (1959).

        Here, the jury could reasonably have inferred from the evidence that defendant had the
requisite intent to kill on the basis of: the length of time that the assailants beat and kicked the
victim; the multiple blows directly to the victim’s head; the veracity and intensity of the strikes;
defendant’s clear knowledge upon observation that the victim was directly absorbing the strikes
to his body and head absent the ability to stop them; the evidence that the beating continued even
though the victim appeared unconscious and was entirely motionless; and the extensive and
severe nature of the injuries suffered by the victim as described by the pathologist. Defendant’s
argument that there was no evidence of him making a declaration indicating or suggesting an
intent to kill did not preclude the conviction, given that all of the circumstances surrounding the
killing had to also be taken into consideration by the jury. Unger, 278 Mich App at 223; Brown,
267 Mich App at 149 n 5. Also, the lack of a motive to kill did not necessarily mean that



NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime. People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). “It is for the trier of fact . . . to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded to the inferences.” Hardiman, 466 Mich at 428. The prosecution need not negate
every reasonable theory of innocence, but need only prove the elements of the crime in the face
of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the
prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).




                                                -3-
defendant lacked the intent to kill.2 Finally, in regard to defendant’s argument that there was no
evidence that he struck the victim in the head causing his death, the argument fails to appreciate
that defendant was also tried as an aider and abettor. MCL 767.39 provides:

               Every person concerned in the commission of an offense, whether he
       directly commits the act constituting the offense or procures, counsels, aids, or
       abets in its commission may hereafter be prosecuted, indicted, tried and on
       conviction shall be punished as if he had directly committed such offense.

       In People v Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006), our Supreme Court
observed:

               We hold that a defendant must possess the criminal intent to aid, abet,
       procure, or counsel the commission of an offense. A defendant is criminally liable
       for the offenses the defendant specifically intends to aid or abet, or has knowledge
       of, as well as those crimes that are the natural and probable consequences of the
       offense he intends to aid or abet. Therefore, the prosecutor must prove beyond a
       reasonable doubt that the defendant aided or abetted the commission of an offense
       and that the defendant intended to aid the charged offense, knew the principal
       intended to commit the charged offense, or, alternatively, that the charged offense
       was a natural and probable consequence of the commission of the intended
       offense.

        There was sufficient evidence to show that defendant aided and abetted in the assault of
the victim, that he intended to do so, and that the natural and probable consequence of the
assault, considering its extent and severity, was the death of the victim, resulting in the charged
offense of first-degree murder. Moreover, the underlying basis for this argument, i.e., that
defendant did not strike the victim in the head, is questionable, considering the eyewitness’s
testimony about all four men repeatedly beating and kicking the victim and the mountain of
bruises that enveloped the victim’s head. The eyewitness’s testimony about defendant kicking
the victim in the torso was in reference to defendant’s actions after the eyewitness called out to
the assailants, not before. Reversal is unwarranted.

       With respect to premeditation and deliberation, premeditation means to think about
something beforehand, while deliberation means to measure and evaluate the facets of a choice
or problem. People v Plummer, 229 Mich App 293, 300; 581 NW2d 753 (1998).
“Premeditation and deliberation require sufficient time to allow the defendant to take a second
look.” People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992). Factors that may
be considered in establishing premeditation include a defendant's actions before and after the
crime and the circumstances of the killing itself, including the nature and location of any


2
 We do note that there was evidence of an attempt to rob the victim, and one could infer that the
beating and killing was motivated by an effort to prevent the victim from ever going to the
police; the accomplice’s testimony indicated that the assailants knew the victim, which would
have been problematic for the assailants.


                                                -4-
wounds. Plummer, 229 Mich App at 300. Premeditation and deliberation can be inferred from
the circumstances surrounding a killing, and “[m]inimal circumstantial evidence is sufficient to
prove an actor’s state of mind.” People v Ortiz, 249 Mich App 297, 301; 642 NW2d 417 (2002).
The severity and length of time of a beating, People v Haywood, 209 Mich App 217, 230; 530
NW2d 497 (1995), the number of violent blows, Unger, 278 Mich App at 231, and the
opportunity to reconsider actions before completing a killing, People v Ortiz-Kehoe, 237 Mich
App 508, 520; 603 NW2d 802 (1999), can all give rise to an inference of premeditation and
deliberation.

        Here, the jury could reasonably have inferred from the evidence that the killing was
premeditated and deliberate on the basis of: the fact that the assailants had to take the time to
park their vehicle and approach the victim before engaging in the assault; the length of time that
the assailants beat and kicked the victim; the evidence that the assault continued even after the
eyewitness spoke up and despite the fact that the victim was essentially unconscious and
motionless; the evidence that none of the perpetrators sought to stop the assault after it was
initiated; and the extensive nature of the injuries suffered by the victim, which clearly took some
amount of time to inflict before the beating finally stopped. Defendant and his accomplices had
an opportunity to take a second look and reconsider their actions. There was sufficient evidence
of premeditation and deliberation, and reversal is unwarranted.

        We also note that, in the context of defendant’s sufficiency arguments, he contends that
because the eyewitness’s testimony was allegedly inconsistent, it was rendered completely
incredible and unreliable. This is merely an attack on the credibility of the eyewitness. As
indicated above, we will not interfere with the jury’s role of assessing the credibility of
witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Furthermore, the
alleged inconsistencies or problematic aspects of the eyewitness’s testimony were insignificant
when viewed in the context of his overall testimony, which was strong and consistent on the
facts most relevant to the crime.

       Defendant next argues that the trial court erred in instructing the jury on flight and on
inferences regarding state of mind predicated on use of a weapon. These arguments are
meritless. A trial court’s determination as to whether a jury instruction is applicable to the facts
of the case is reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712
NW2d 419 (2006). There was evidence that defendant and his accomplices fled the scene of the
crime twice, once after the eyewitness confronted them, although not immediately, and next
when, after returning to the scene in an attempt to retrieve their cell phones, they sped off after
the eyewitness opened his door.3 This was sufficient to instruct the jury on flight. People v
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995) (“The term ‘flight’ has been applied to
such actions as fleeing the scene of the crime[.]”). Next, the trial court instructed the jury as
follows:




3
  The eyewitness had gathered up the cell phones after the assailants inadvertently left them
behind when fleeing the scene the first time.


                                                -5-
               The defendant’s state of mind may be inferred from the kind of weapon
       used, the type of wounds inflicted, the acts and words of the defendant and any
       other circumstances surrounding the alleged killing.

        This instruction was consistent with M Crim JI 16.21(2), a standard instruction on
inferring state of mind, which concept we discussed earlier in this opinion. Defendant maintains
that there was no “weapon” used in the attack. First, there was evidence that the victim was
struck with a Christmas ornament, which perhaps was not a dangerous weapon, but we note that
the remainder of M Crim JI 16.21, which was not read to the jury, concerned “dangerous”
weapons. Regardless, the instruction simply directed the jury to consider all of the
circumstantial evidence in determining defendant’s state of mind; the trial court never directly
told the jurors that a weapon was indeed used in the fatal assault.

        Additionally, with respect to both claims of alleged instructional error, even assuming
error, defendant had not established the requisite prejudice. MCL 769.26; People v Lukity, 460
Mich 484, 495; 596 NW2d 607 (1999).

         Defendant next argues that the trial court erred by admitting photographs of the deceased
victim. We review a trial court’s decision to admit photographs for an abuse of discretion.
People v Gayheart, 285 Mich App 202, 227; 776 NW2d 330 (2009). Photographic evidence is
generally admissible when relevant, MRE 401, and if not unduly prejudicial, MRE 403.
Gayheart, 285 Mich App at 227. Such evidence can be used to corroborate the testimony of a
witness, and it need not be excluded on the basis of gruesomeness alone. Id. Photographs can
also be relevant to establishing the elements of the crime, including the “intent” element relative
to first-degree murder. People v Mesik (On Reconsideration), 285 Mich App 535, 544; 775
NW2d 857 (2009). Here, the photographs were properly admitted to corroborate the forensic
pathologist’s testimony regarding the victim’s injuries and to assist the prosecution in
establishing the intent to kill (nature and extent of injuries), as well as premeditation and
deliberation (extent of injuries). We agree with the trial court’s determination that, while the
photographs are gruesome, they “illustrate[d] the injuries and the type of force necessary to
create” the injuries. There was no abuse of discretion.

        Defendant next alleges numerous instances of prosecutorial misconduct. Given the
failure to preserve the issue, we review for plain error affecting substantial rights. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). With respect to defendant’s claims
pertaining to questions concerning gang signs allegedly reflected in certain photographs of the
assailants and as to underage drinking, defendant has simply failed to establish plain error
affecting his substantial rights. Moreover, the trial court instructed the jury that the attorneys’
questions were not evidence, and jurors are presumed to follow their instructions. Unger, 278
Mich App at 235.

        With respect to defendant’s claim that the prosecutor impermissibly told the jurors that
they would have to justify to him any finding that the eyewitness was not credible, it is clear that
the prosecutor was simply emphasizing that the eyewitness was a credible witness and worthy of
belief based on the facts and testimony, which is proper argument. People v Dobek, 274 Mich
App 58, 66; 732 NW2d 546 (2007).


                                                -6-
        Defendant next takes issue with the prosecutor’s remark that the victim did not deserve
what occurred to him and the prosecutor’s statement, “If you want to talk about a totally
senseless, brutal, unimaginable crime, you would be hard put to come up with something worse
than this one.” “Appeals to the jury to sympathize with the victim constitute improper
argument.” People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). The prosecutor’s
characterization of the crime was consistent with the evidence. Although poignant, the
prosecutor did not ask the jury to convict defendant out of sympathy for the victim. In any event,
the trial court instructed, and the prosecutor reiterated, that the attorneys’ statements were not
evidence. See Unger, 278 Mich App at 235.

        Defendant also argues that the prosecutor impermissibly elicited a witness’s opinion
about another witness’s credibility. The prosecution asked defendant why the eyewitness would
have lied about what he had witnessed on the night of the incident. Defendant simply responded
that he did not know the answer to that question. We fail to see how defendant was prejudiced
by this questioning; assuming error, it was harmless.

        Defendant next argues that the prosecutor misstated the law regarding the presumption of
innocence and accomplice testimony. “A prosecutor’s clear misstatement of the law that remains
uncorrected may deprive a defendant of a fair trial,” but “if the jury is correctly instructed on the
law, an erroneous legal argument made by the prosecutor can potentially be cured.” People v
Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002). Assuming a misstatement of law by
the prosecutor, reversal is unnecessary because the trial court specifically and accurately
instructed the jury on the presumption of innocence and accomplice testimony, curing any
presumed misstatements.

        Defendant next presents an argument that trial counsel was ineffective in relationship to
all of the preceding arguments addressed in this opinion to the extent that counsel failed to
preserve the issues or waived them or was otherwise deficient in his performance. Given our
rulings on the prior issues, this argument fails, as nothing counsel could have done would change
the outcomes on these issues.

        Finally, in his Standard 4 brief, defendant argues that he was denied a fair trial when the
trial court admitted the results of an allegedly unconstitutional and highly suggestive
photographic identification process. He also argues that trial counsel was ineffective for failing
to object to the identification. “A photographic identification procedure or lineup violates due
process guarantees when it is so impermissibly suggestive as to give rise to a substantial
likelihood of misidentification.” People v McDade, 301 Mich App 343, 357; 836 NW2d 266
(2013).

        Here, the eyewitness initially testified that he was shown two photographic lineups, one
with two individuals and one with six individuals. He then testified that defendant, whom he had
identified, was the only individual common to both. It is conceivable that this, in and of itself,
would have been impermissibly suggestive. However, the eyewitness later testified that he was
actually shown only one lineup with six individuals and saw the other depiction later that
evening on television. Further, he was only told that an assailant “may” be in the lineup. There
is nothing to indicate that such identification was impermissibly suggestive. And as an objection
to the photographic identification would have been futile, defendant is unable to show that

                                                -7-
counsel’s performance fellow below an objective standard of reasonableness. People v Toma,
462 Mich 281, 302; 613 NW2d 694 (2000). Reversal is unwarranted.

      Affirmed.



                                                       /s/ Michael J. Riordan
                                                       /s/ William B. Murphy
                                                       /s/ Mark T. Boonstra




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