                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 15, 2016
               Plaintiff-Appellee,

v                                                                  No. 324415
                                                                   Wayne Circuit Court
ANTHONY RAVON WILLIAMS,                                            LC No. 14-002247-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ.

PER CURIAM.

       A jury convicted defendant of first-degree premeditated murder of Marcellus Smith,
MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b.1 The trial court sentenced
defendant to life in prison for the murder conviction and a concurrent prison term of 57 months
to 10 years for the felon-in-possession conviction, to be served consecutive to a two-year term of
imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.

                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence to support his first-degree murder
conviction. We disagree.

        A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, by
reviewing the evidence in the light most favorable to the prosecution to determine whether the
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). “All
conflicts with regard to the evidence must be resolved in favor of the prosecution.” People v
Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). Circumstantial evidence and


1
  The jury also convicted defendant of assault with intent to murder Marquis Callins, MCL
750.83, and felonious assault against Callins, MCL 750.82, but the trial court subsequently
granted defendant’s motion for judgment notwithstanding the verdict with regard to these
charges.


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reasonable inferences from the evidence can be sufficient to prove the elements of a crime.
People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).

       The elements of first-degree premeditated murder are: (1) an intentional killing of a
human being (2) with premeditation and deliberation. People v Hoffmeister, 394 Mich 155, 158-
159; 229 NW2d 305 (1975); People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993).
On appeal, defendant challenges the evidence identifying him as a perpetrator, see People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008) (“it is well settled that identity is an element of
every offense”), but the thrust of his argument is that he lacked premeditation and deliberation.

        First, there was sufficient evidence to support the jury’s conclusion that defendant was
the perpetrator. Defendant’s own witness testified that defendant was nearby during an argument
between Smith and Curtis Jackson about Smith’s choice to bring his children to an adult party on
Crane Street. Later, Smith’s 11-year-old son, GLJ, observed defendant threaten to “kill this
n*****” when he was looking for Smith. Smith’s girlfriend, Kiara Kimble, specifically
identified defendant as a part of the angry crowd that approached Smith. Kimble was familiar
with defendant from high school and family relationships. Although Smith’s friend, Marquis
Callins, could not identify the shooter at trial, he explained that the same person who he heard
threatening to “blow . . . somebody’s face off” later shot Smith. Kimble and GLJ identified
defendant as that shooter when making reports to police, in photographic lineups, and at trial.
Kimble and GLJ were eyewitnesses to the shooting. It took place in front of Kimble’s van with
GLJ in the backseat. Kimble and GLJ both testified to clearly observing defendant raise a black
gun to Smith’s head and shooting Smith. Given all of these facts, a reasonable jury could
conclude that defendant was the perpetrator.

        Second, there was sufficient evidence of premeditation and deliberation. Premeditation
means “to think about beforehand,” and deliberation means “to measure and evaluate the major
facets of a choice or problem.” People v Plummer, 229 Mich App 293, 300; 581 NW2d 753
(1998) (citation and quotation omitted). Premeditation and deliberation require sufficient time to
allow the defendant to reconsider his actions, or in other words, sufficient time to “take a second
look.” People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999). Factors relevant to
the establishment of premeditation and deliberation include the following: “(1) the prior
relationship of the parties; (2) the defendant’s actions before the killing; (3) the circumstances of
the killing itself; and (4) the defendant’s conduct after the homicide.” Id. (quotation marks and
citation omitted).

        The record demonstrates that defendant did not take a second look after observing the
argument between Curtis and Smith. Instead, more than 30 minutes later, he had not calmed
down like the rest of the crowd, he was searching for Smith, and he was threatening to kill him.
Defendant also had time to reconsider his actions after he looked for Smith in Kimble’s minivan,
as he walked down Crane Street toward Kercheval Avenue with the crowd in search of Smith.
Once he found Smith, he still could have taken a second look when he was ordering Smith to get
into the van and leave. Instead, when Smith did not comply, defendant shot him. In addition,
the jury could infer that defendant was conscious of his guilt when, after the shooting, he went to
West Virginia, and when confronted by police there, used a false name and refused to provide his
birthdate. See People v Unger, 278 Mich App 210, 225-226; 749 NW2d 272 (2008). These
actions do not refute that defendant premeditated the shooting. Therefore, viewing the evidence

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in the light most favorable to the prosecution, there was sufficient evidence of premeditation to
support defendant’s conviction of first-degree murder.

                                  II. EVIDENCE OF FLIGHT

       Next, defendant challenges the admission of the evidence involving his trip to West
Virginia and his arrest by the police there. In the trial court, defendant objected to evidence that
he gave a false name and that he knew he was wanted. Therefore, those arguments are
preserved. Mouzon v Achievable Visions, 308 Mich App 415, 419; 864 NW2d 606 (2014). But
defendant did not object generally to the evidence that he went to West Virginia, leaving that
matter unpreserved.

        A trial court’s decision whether to admit or exclude evidence is reviewed for an abuse of
discretion. People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes. People v Fomby, 300 Mich App 46, 48; 831 NW2d 887 (2013)
(citation omitted). To the extent that defendant’s arguments are unpreserved, they are reviewed
for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).

       Defendant argues that evidence regarding his flight and interaction with West Virginia
police was not relevant. We disagree. Pursuant to MRE 401, evidence is relevant when it has a
tendency to make a material fact more or less probable. People v Sabin, 463 Mich 43, 56-57;
614 NW2d 888 (2000). Evidence of a defendant’s consciousness of guilt, such as his flight and
dishonesty, is relevant to demonstrate a guilty state of mind. People v Schaw, 288 Mich App
231, 237-238; 791 NW2d 743 (2010); Unger, 278 Mich App at 226; People v McGhee, 268
Mich App 600, 639; 709 NW2d 595 (2005).

       Defendant also argues that evidence regarding his flight should have been excluded as
substantially more prejudicial than probative under MRE 403. We disagree.

       MRE 403 provides:

               Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of time,
       or needless presentation of cumulative evidence.

In People v Pickens, 446 Mich 298, 336-337; 521 NW2d 797 (1994), our Supreme Court
explained unfair prejudice under MRE 403:

               Obviously, evidence is offered by an advocate for the always clear, if
       seldom stated, purpose of “prejudicing” the adverse party. Recognizing this, the
       Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor
       to be weighed against probative value. This unfair prejudice refers to the
       tendency of the proposed evidence to adversely affect the objecting party’s
       position by injecting considerations extraneous to the merits of the lawsuit, e.g.,


                                                -3-
       the jury’s bias, sympathy, anger, or shock.         [Citation and quotation marks
       omitted.]

        Although all relevant evidence is prejudicial, People v Murphy (On Remand), 282 Mich
App 571, 582-583; 766 NW2d 303 (2009), the record does not establish that the challenged
evidence injected considerations extraneous to the merits of the action, such as shock or bias,
Pickens, 446 Mich at 337. Defense counsel was free to argue—and, in fact, did argue—that the
evidence that defendant was arrested in West Virginia did not prove that he was conscious of his
guilt. Counsel noted in closing argument that there was no testimony that defendant admitted to
the police that he knew about the particular arrest warrant for the crimes related to Smith’s death;
he only knew that he was wanted for some unspecified crime. Moreover, counsel argued that
there was no proof regarding when defendant arrived in West Virginia, and that his ticket
actually demonstrated that he was scheduled to return to Detroit (i.e., showing that he was not
avoiding the area). Moreover, the trial court provided the jury with a limiting instruction
concerning this evidence, stating:

               Now, there’s been some evidence that the defendant left the jurisdiction
       after the alleged crime that he was accused of. This evidence does not prove
       guilt. A person may run or hide for innocent reasons, such as panic, mistake or
       fear. However, a person may also run or hide because of the consciousness of
       guilt. You must decide whether the evidence is true and if it is true, whether it
       shows that the defendant had a guilty state of mind.

A cautionary instruction may limit the potential for undue prejudice, Murphy, 282 Mich App at
583, and jurors are presumed to follow instructions from the trial court, People v Waclawski, 286
Mich App 634, 674; 780 NW2d 321 (2009); see also People v Cutchall, 200 Mich App 396, 398;
504 NW2d 666 (1993) (“[a]lthough such evidence ‘may be as consistent with innocence as with
guilt . . . it is always for the jury to say whether it is under such circumstances as to evidence
guilt’ ”) (citation omitted). Accordingly, the evidence of flight was properly admitted.

                               III. FAILURE TO INVESTIGATE

        Defendant next argues that he was denied a fair trial because the government failed to
investigate other possible witnesses, including Curtis, Kimble’s aunt Yolanda Jackson, and the
honoree of the party, Natika Newsome. We disagree. Defendant did not raise this issue in the
trial court. Therefore, review of defendant’s unpreserved failure to investigate claim is limited to
plain error affecting substantial rights. People v Cox, 268 Mich App 440, 448; 709 NW2d 152
(2005).

       Due process demands that a criminal defendant have “a meaningful opportunity to
present a complete defense,” which includes a defendant’s receipt of exculpatory evidence.
People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006) (citation and quotation marks
omitted). A prosecutor must disclose exculpatory and material evidence in his or her possession,
regardless of whether the defendant has asked for the disclosure. People v Schumacher, 276
Mich App 165, 176; 740 NW2d 534 (2007). Defendant cites Brady v Maryland, 373 US 83, 87;
83 S Ct 1194; 10 L Ed 2d 215 (1963), under which a defendant must prove: “(1) the prosecution
has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is

                                                -4-
material, People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). In addition, when
evidence is lost or not preserved and the exculpatory value of the evidence is indeterminate and
only potentially useful, a defendant must show that the government acted in bad faith in failing
to preserve the evidence. Arizona v Youngblood, 488 US 51, 57-58; 109 S Ct 333; 102 L Ed 2d
281 (1988); People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992).

        Defendant does not argue that the prosecutor or the police actually possessed evidence
that could potentially have assisted his defense, or failed to preserve evidence in its possession.
Instead, defendant argues that the police and prosecutor denied him his right to a fair trial by
failing to sufficiently investigate the case. Again, defendant argues that the prosecutor should
have developed the evidence by investigating other witnesses.

       In Anstey, 476 Mich at 461, our Supreme Court explained:

       For due process purposes, there is a crucial distinction between failing to disclose
       evidence that has been developed and failing to develop evidence in the first
       instance . . . Because the instant case involves the failure to develop evidence, as
       opposed to the failure to disclose existing evidence, the bad-faith test in
       Youngblood is inapplicable.

              Defendant’s right to present a defense was not violated because the police
       have no constitutional duty to assist a defendant in developing potentially
       exculpatory evidence.

As the Supreme Court explained in Youngblood, defendant was free to argue to the jury that
further investigation might have pointed to a different perpetrator, but the police do not have a
constitutional duty to collect certain evidence. Youngblood, 488 US at 59. Because neither the
prosecutor nor the police owed defendant a constitutional duty to develop potentially favorable
evidence, defendant has failed to show that any inaction by the prosecutor amounted to a plain
error that deprived him of his due process right to a fair trial. Antsey, 476 Mich at 461-462.

        Furthermore, even if the Youngblood test applied, defendant cites no evidence of bad
faith and, on the contrary, the record demonstrates good faith explanations for his claims. For
example, officers went to Curtis and Yolanda’s home and left a business card, but received no
response from them. The officer in charge also testified that he did not continue to pursue the
investigation of other witnesses because, in light of two witnesses’ identification of defendant as
the shooter, he and his supervisor believed there was sufficient evidence to support the warrant.
Absent any bad faith in failing to preserve the evidence defendant cites, he cannot demonstrate
plain error with respect to the investigation of the case.

                          IV. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.

                            A. MANSLAUGHTER INSTRUCTION



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       Defendant argues that the trial court should have instructed the jury on the lesser offense
of voluntary manslaughter. We disagree. Because defendant did not request an instruction on
voluntary manslaughter, this issue is unpreserved and review is limited to plain error affecting
substantial rights. People v Aldrich, 246 Mich App 101, 124-125; 631 NW2d 67 (2001).

        In a criminal trial, the instructions given to a jury “must include all elements of the
charged offenses and any material issues, defenses, and theories if supported by the evidence.”
McGhee, 268 Mich App at 606. Manslaughter is a necessarily included lesser offense of murder,
and a manslaughter instruction is warranted when a rational view of the evidence would support
it. People v Mendoza, 468 Mich 527, 539-540, 548; 664 NW2d 685 (2003). While both are
intentional killings, voluntary manslaughter is separated from murder because of the absence of
malice—in manslaughter the killing occurred as the result of provocation. Id. at 540. The
provocation necessary to mitigate a homicide from murder to voluntary manslaughter is that
which causes the defendant to act out of passion rather than reason. Id. at 535. The “passion”
necessary to support a voluntary manslaughter instruction must be “that which would cause a
reasonable person to lose control.” People v Tierney, 266 Mich App 687, 715; 703 NW2d 204
(2005) (citation omitted).

        Defendant maintains that there was insufficient evidence of premeditation and
deliberation. As discussed earlier, however, the evidence showed that there was a disagreement
between Curtis and Smith, and then defendant made threats against Smith, but he had multiple
opportunities to take a second look to control his passions. Moreover, defendant does not argue
how the record demonstrates adequate provocation or passion that would cause a reasonable
person to lose control and shoot another. On the contrary, there was unrest at the party because
Smith brought his children and, later, Smith failed to comply with defendant’s demands that he
get in Kimble’s minivan. Even if the jury believed defendant’s witness that Smith pushed Curtis,
Yolanda, and Kimble, defendant subsequently escalated the conflict by shooting Smith. Without
evidence of adequate provocation, a manslaughter instruction was not rationally supported, and
therefore, failure to instruct the jury on voluntary manslaughter was not plain error.

        In addition, even if we were to conclude that the jury should have been given a
manslaughter instruction, failure to give the instruction did not affect defendant’s substantial
rights. The jury was instructed on second-degree murder, in addition to first-degree murder. The
jury rejected that intermediate lesser offense and found defendant guilty of the greater offense.
Thus, any failure to give an instruction on the lesser offense of manslaughter did not prejudice
defendant. See, e.g., People v Wilson, 265 Mich App 386, 395-396; 695 NW2d 351 (2005).

                         B. EFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also makes several arguments that he was denied the effective assistance of
counsel. Defendant did not raise these claims in a motion for a new trial or a Ginther2 hearing,
or in a motion to remand in this Court. Therefore, review is limited to errors apparent on the



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                               -6-
record. People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012). As explained in
People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014):

       Effective assistance of counsel is presumed, and defendant bears a heavy burden
       of proving otherwise. To demonstrate ineffective assistance, defendant must
       show: (1) that his attorney’s performance fell below an objective standard of
       reasonableness, and (2) that this performance so prejudiced him that he was
       deprived of a fair trial. “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.” [Citation omitted.]

                              1. EXPERT ON IDENTIFICATION

        Defendant argues that defense counsel was ineffective for failing to consult and call an
expert in eyewitness identification. We disagree. Defendant has failed to demonstrate that, had
defense counsel requested an expert witness in eyewitness identification, there is a reasonable
probability that the outcome would have been different. MCL 775.15 provides a trial court with
discretion to appoint an expert witness for an indigent defendant upon request. People v
Carnicom, 272 Mich App 614, 616-617; 727 NW2d 399 (2006). The statute requires a
defendant to show that an expert’s testimony is required to enable the defendant to “safely
proceed to a trial.” MCL 775.15. To be entitled to the appointment of an expert witness,

       an indigent defendant must demonstrate a nexus between the facts of the case and
       the need for an expert. People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838
       (1995). It is not enough for the defendant to show a mere possibility of assistance
       from the requested expert. [People v] Tanner, [469 Mich 437, 443; 671 NW2d
       728 (2003)]. Without an indication that expert testimony would likely benefit the
       defense, a trial court does not abuse its discretion in denying a defendant’s motion
       for appointment of an expert witness. Jacobsen, [448 Mich at 641]. [Carnicom,
       272 Mich App at 617.]

Nothing in the record demonstrates that an expert was necessary for defendant to safely proceed
to trial. Through cross-examination, defense counsel challenged the strength and reliability of
Kimble’s and GLJ’s identification testimony, elicited apparent discrepancies, and then argued
bases for questioning the accuracy of their identifications in closing argument. Therefore,
defendant cannot show that defense counsel was ineffective for failing to retain an expert, or that
he was prejudiced by the absence of the expert at trial. Consequently, defendant cannot establish
a claim of ineffective assistance of counsel on this basis.

                            2. MANSLAUGHTER INSTRUCTION

         Defendant argues that defense counsel was ineffective for failing to request an instruction
on voluntary manslaughter. As explained earlier, a rational view of the evidence did not support
a manslaughter instruction. Because a request for a manslaughter instruction would have been
futile, defense counsel was not ineffective for failing to request the instruction. People v Goodin,
257 Mich App 425, 433; 668 NW2d 392 (2003).

                           3. DEFENDANT’S RIGHT TO TESTIFY
                                                -7-
         Defendant lastly argues that defense counsel was ineffective for advising him not to
testify on his own behalf at trial. Defendant stated on the record that it was his decision, after
consulting with defense counsel, not to testify. Defendant therefore waived his right to testify,
People v Simmons, 140 Mich App 681, 684-685; 364 NW2d 783 (1985), and his arguments that
defense counsel was ineffective are without merit. Although defendant claims that defense
counsel advised him not to testify because she was unprepared, defendant has failed to establish
a factual predicate for this claim. People v Stokes, ___ Mich App ___; ___ NW2d ___ (2015)
(Docket No. 321303), lv pending; slip op at 14 (“[a] defendant raising a claim of ineffective
assistance of counsel bears the burden of proving the factual predicate of his or her claim”). In
addition, defendant claims that defense counsel promised to communicate the message of his
proposed testimony in other ways at trial. Because defendant does not make any claims on
appeal about how he would have testified differently than the defense presented at trial, he has
not overcome the strong presumption that his counsel’s decision was anything other than sound
trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).

                           C. FAILURE TO DISCLOSE EVIDENCE

        Finally, defendant argues that the prosecution violated Brady, supra, by failing to
disclose evidence that the officer in charge was allegedly under investigation for theft.
Defendant’s argument is devoid of any evidence supporting this allegation. According to MCR
7.210(A), “[a]ppeals to the Court of Appeals are heard on the original record.” “In an appeal
from a lower court, the record consists of the original papers filed in that court or a certified
copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits
introduced.” MCR 7.210(A)(1). Defendant makes no citation to the record to support the
allegations about Sergeant Alex Vinson and he did not file a motion with this Court to expand
the record on appeal under MCR 7.216(A)(4). Accordingly, it is “impermissible to expand the
record on appeal.” People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
Moreover, defendant bears the burden of “furnishing the reviewing court with a record to verify
the factual basis of any argument upon which reversal was predicated,” People v Elston, 462
Mich 751, 762; 614 NW2d 595 (2000), and he has failed to do so here. We therefore reject this
claim of error.

       Affirmed.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Kathleen Jansen
                                                            /s/ Cynthia Diane Stephens




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