                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 16, 2014
               Plaintiff-Appellee,

v                                                                   No. 311169
                                                                    Wayne Circuit Court
DEONTE HOWARD,                                                      LC No. 10-005562-01-FJ

               Defendant-Appellant.


Before: WILDER, P.J., and FORT HOOD and SERVITTO, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of first degree murder, MCL
750.316.1 He was sentenced to a mandatory term of life imprisonment, with credit for 382 days
served. We therefore affirm defendant’s conviction, but remand for resentencing pursuant to
MCL 769.25(1)(b)(i).

        Defendant was charged with first degree premeditated murder, assault with intent to
murder and felony firearm in connection with the shooting death of 19-year-old Tyrone Simpson
on April 10, 2010. The shooting occurred in front of a combination convenience store/barbecue
restaurant on the 1600 block of Tireman Street in the city of Detroit shortly after 4:00 p.m. An
argument broke out between defendant, who was 16 years old at the time, and Simpson when
Simpson accused defendant of taking his Cartier sunglasses. Defendant denied taking them and
a verbal argument ensued. Simpson then punched defendant in the face several times, at which
point defendant drew a weapon and fired at Simpson, injuring him and one of Simpson’s friends,
Aundrey Allen. Simpson attempted to run away from defendant, but defendant chased Simpson
around a vehicle, shooting at and striking him with several shots until Simpson collapsed in the


1
  Defendant was initially charged with first degree murder, assault with intent to murder, MCL
750.83, and felony firearm, MCL 750.227b. At trial, the jury convicted defendant of felony
firearm and the lesser included offense of assault with intent to do great bodily harm, MCL
750.84, but was hung with respect to the first degree murder charge, leading to retrial on that
charge only. Defendant’s retrial on the first degree murder charge is the focus of this appeal and
we do not address his trial or, convictions, or sentences for felony firearm or assault with intent
to do great bodily harm.


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street. An SUV driven by an unidentified friend of defendant’s then pulled up and defendant
jumped into the back seat. The vehicle started to leave, and then abruptly slammed on its breaks.
Defendant got back out of the vehicle and shot Simpson in the head. Defendant then got back
into the vehicle and it sped away. Simpson was dead when police arrived on the scene a short
time later. The medical examiner noted that Simpson had a total of nine gunshot wounds,
including one to his head.

       On appeal, defendant first contends that there was insufficient evidence to support his
conviction. We disagree.

        We review a challenge to the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the prosecution, to determine whether a rational trier of fact could
find that the essential elements of the crime were proven beyond a reasonable doubt. People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). “[A] reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the [trier of fact’s]
verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Circumstantial evidence
and reasonable inferences arising from the evidence may constitute satisfactory proof of the
elements of the offense. People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d
907 (1993).

        Defendant challenges the sufficiency of the evidence on two grounds. First, he contends
there was insufficient evidence identifying him as the shooter. The prosecution must prove the
identity of the defendant as the perpetrator of a charged offense beyond a reasonable doubt.
People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976); People v Kern, 6 Mich App 406,
409-410; 149 NW2d 216 (1967). Circumstantial evidence and reasonable inferences arising
from the evidence may be sufficient to identify the accused as the perpetrator. People v Nelson,
234 Mich App 454, 459; 594 NW2d 114 (1999). The credibility of identification testimony is a
question for the trier of fact that this Court will not decide over again. People v Davis, 241 Mich
App 697, 700; 617 NW2d 381 (2000). And, a positive identification by witnesses may be
sufficient to support a conviction of a crime. Id.

        In this case, defendant was identified by no less than four eyewitnesses to the shooting.
Frederick McFadden testified that he had an unobstructed view of the scene from approximately
20 feet away, and saw defendant shoot Simpson several times. His testimony was unequivocal
that defendant was the only person with a gun and that defendant shot Simpson several times,
including once in the head. As pointed out by defendant, McFadden testified at trial that he
picked out defendant and the driver of a car from a photo array, which was different from his
testimony in a prior trial that he picked out the shooter and two drivers. McFadden also
described the shooter to the police as 20 to 24 years of age and 5”11 to 6” tall when defendant
was 16 at the time of the shooting and is less than 5’6”. However, the credibility of
identification testimony is a question for the trier of fact. Davis, 241 Mich App at 700.

         Marcario Harris and Kimberly Thompson, who live across the street from the
store/restaurant where the shooting occurred, also identified defendant as the shooter. Both
testified that they had a clear view of the shooting through their front living room window, which
faced the store and they could clearly see defendant in the broad daylight. Both testified that
defendant was only person they saw with a gun during the incident. Neither was asked to view a

                                                -2-
photo array or participate in a live lineup, but identified defendant for the first time at trial. Both
Harris and Thompson described the shooter to the police immediately after the event as around
5”9 or 5’10”, thin, and in his mid-20’s. This description is not so far off as to be a
misidentification and moreover, the jury is responsible for both credibility and evidentiary
weight determinations. People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010).

        Aundrey Allen also identified defendant as the shooter. He had been standing with
Simpson while Simpson was arguing with defendant about his glasses and when Simpson
punched defendant in the face. Allen testified that he was also standing behind and somewhat to
the side of Simpson when defendant pulled a gun out of his pocket and started shooting at
Simpson. Allen was shot in the leg as he tried to run. Allen described the shooter to the police
as being around 5’7” or 5’8” and around 17 or 18 years old. Allen also told the police that
several people at the incident called the shooter “Tay,” which others witnesses confirmed was
defendant’s nickname. At the hospital after his surgery, Allen did view a photo array and
identify another person as the shooter. Allen explained, however, that he was under the
influence of morphine at the time of that identification. Allen thereafter participated in a live
line up and identified defendant out of the lineup as the shooter.

       The above was sufficient for a reasonable jury to find beyond a reasonable doubt that
defendant was identified as the shooter.

      Defendant next argues that the evidence was insufficient to establish that there was a
premeditated, deliberate intent to kill such that his first degree murder conviction cannot stand.
MCL 750.316(1)(a) provides:

       (1) A person who commits any of the following is guilty of first degree murder
       and shall be punished by imprisonment for life:

       (a) Murder perpetrated by means of poison, lying in wait, or any other willful,
       deliberate, and premeditated killing.

The elements of premeditated murder are (1) an intentional killing of a human being (2) with
premeditation and deliberation. People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330
(2009). With regard to premeditation and deliberation, this Court has explained:

       To premeditate is to think about beforehand; to deliberate is to measure and
       evaluate the major facets of a choice or problem. As a number of courts have
       pointed out, premeditation and deliberation characterize a thought process
       undisturbed by hot blood. While the minimum time necessary to exercise this
       process is incapable of exact determination, the interval between initial thought
       and ultimate action should be long enough to afford a reasonable man time to
       subject the nature of his response to a “second look.” [People v Plummer, 229
       Mich App 293, 300; 581 NW2d 753 (1998) (citation omitted).]

“Premeditation and deliberation may be inferred from all the facts and circumstances, but the
inferences must have support in the record and cannot be arrived at by mere speculation.” Id. at
301. There is no specific period of time that must pass for premeditation to be found; however,
“[o]ne cannot instantaneously premeditate a murder.” Id. at 305. Neither premeditation nor
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deliberation need be established by direct evidence; the required state of mind can be inferred
from all of the facts and circumstances on the record. People v Boose, 109 Mich App 455, 473;
311 NW2d 390 (1981). These elements may also be shown by consideration of the following
factors: “ ‘(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.’ ”
People v Orr, 275 Mich App 587, 591; 739 NW2d 385 (2007), quoting People v Schollaert, 194
Mich App 158, 170; 486 NW2d 312 (1992).

         No one disputes that Simpson approached defendant accusing him of stealing his glasses.
It also appears that Simpson escalated the verbal altercation to a physical level by punching the
defendant and that defendant did not punch him back. However, by all accounts, defendant was
the only one with a weapon and the only one who shot. Most important to our analysis, several
distinct rounds of shooting occurred. First, after Simpson punched defendant several times in the
face and was approaching to punch him again, defendant shot at Simpson at least twice. Allen,
who was standing next to Simpson at the time the first shots were fired, testified that defendant
initially shot at Simpson twice.

         The second round of shots came almost immediately thereafter. Allen testified that after
the first two initial shots, he ran toward the store. As he ran, he heard three more shots. Bobby
Bailey, another witness, also ran to the store after the initial shots.

        The next round of shots occurred when both Bailey and Allen were inside the store.
Bailey testified that he heard six or seven more shots while he was in the store. Allen testified
that, he too, heard additional shots while he was in the store. Allen testified that he heard eight
or nine shots right in a row, then a several second pause occurred. Allen testified that he next
heard Simpson begging for his life and a final, single shot. According to Allen, he thereafter
heard the sound of a car being floored and taking off.

         McFadden similarly testified to distinct rounds of shots. He testified the he heard three
initial shots, and then his attention was drawn to an elderly lady getting out of her car in the
street. McFadden had time to help the woman to her home before he heard the next shot, which
he testified he heard while at the same time seeing Simpson stumble backward. McFadden
testified that he then heard several more shots and Simpson was lying in the street. According to
McFadden, the defendant fired two more shots at Simpson as he lay in the street then got into an
SUV. Defendant then got back out of the SUV, said “This m—f—n--- isn’t dead yet” and shot
defendant several more times, including once in the head. Defendant then got back in the SUV
and left.

       Witness Harris, testified that he saw defendant chasing Simpson around a Suburban,
shooting at him. After Simpson fell to the ground, defendant walked toward him and shot at him
several more times. Harris testified that defendant shot at Simpson approximately 15 times.
Witness Thompson testified that defendant first shot at Simpson while both were in the street and
Simpson fell to the ground. Defendant then got into an SUV and started to take off, then
abruptly got back out of the vehicle when Simpson started to get up. Thompson testified that
defendant chased Simpson around shooting at him. She heard Simpson begging for his life and
saw defendant walk up to Simpson, shoot him in the head, and then get back into the SUV and
leave.

                                                 -4-
        The prosecution presented sufficient evidence of premeditation and deliberation to
support defendant’s first degree premeditated murder conviction. The first shots fired by
defendant could qualify as being brought about by “hot blood” without an opportunity to take a
second thought. Simpson had just punched defendant in the face several times and was
advancing toward him again. Allen testified that at that point, defendant started reaching for his
pocket “real crazy like.” Were those the only shots fired, defendant’s argument that his actions
were rash, impulsive or a hot-blooded reaction to the circumstances would have some merit.
However, the testimony establishes that after the initial few shots, there was a minimum of a
several second pause as Allen and others fled the scene. The pause was long enough, if
McFadden’s testimony is to be believed, for him to assist an elderly lady from her car parked in
the street up to her house and for him to then return to the street and witness the next round of
shots. Allen testified that he could see Simpson’s hand go toward his stomach as though he had
been shot in that area. McFadden also testified that after one of the first several shots, he saw
Simpson stumble backward. By all witness accounts, then, Simpson was still alive after the first
shots were fired. Assuming defendant did not possess the requisite intent (premeditation or
deliberation) to murder at the time the first shots were fired, he could have left at that point and
the incident perhaps would have been over.

         However, after a pause, more shots were fired and, by all witness accounts, Simpson was
still alive. According to Harris and Thompson, it was at that point that defendant got into an
SUV and appeared to be about to leave the scene, but when Simpson started to get up out of the
street, the SUV slammed on its brakes and defendant got back out. According to these
witnesses, defendant chased Simpson around a vehicle, firing more shots at him until he fell back
into the street, then walked up to him and fired a final shot into his head. While McFadden made
no mention of defendant chasing Simpson around a vehicle as he fired shots at him, he did testify
that defendant got into an SUV, then got back out, said “This m—f—n--- isn’t dead yet” and
shot defendant several more times, including once in the head. The medical examiner testified
that when the shot to his head was delivered, Simpson was still alive.

        A reasonable jury could find that between the apparently non-fatal first shots and the final
shot to Simpson’s head, there was sufficient time for defendant to take a second look at the
nature of his actions. Defendant may have had no prior relationship with Simpson and may not
have initially gone to the store/restaurant for anything other than his stated purpose of finding his
phone. Nevertheless, the circumstances of the killing itself show that defendant thought about
taking Simpson’s life before the he took the acts which actually caused the death and pondered
the acts for some, albeit small, amount of time. Defendant then got into an SUV and the vehicle
started to leave. But it then stopped as Simpson started to get up and defendant elected to shoot
Simpson several more times while at least one witness testified that defendant made a statement
concerning an intent to kill Simpson and while other witnesses testified they heard Simpson
pleading with defendant for his life. Defendant then stood over Simpson while he lay in the
street and shot him in the head. The location of this final shot, the positions of the parties, and
the fact that defendant halted and got out of vehicle to deliver the final shots adequately suggest
that although defendant had time to take a second look and perhaps leave Simpson injured,
defendant deliberately chose to ensure that he killed Simpson. Thus, even if defendant did not
form a homicidal intent until he stopped the SUV and got back out to deliver the final round of
shots, the time span between that moment and the time the initial shots were fired would be of a


                                                -5-
sufficient amount to allow defendant to take a second look. There was thus sufficient evidence
of premeditation and deliberation to support defendant’s first degree murder conviction.

        Defendant next argues that he was deprived of the right to the effective assistance of
counsel. We disagree. Defendant did not bring a motion for a new trial on the basis of
ineffective assistance of counsel, and failed to request a Ginther hearing (People v Ginther, 390
Mich 436; 212 NW2d 922 (1973)) before the trial court. Accordingly, defendant's claim of
ineffective assistance of counsel is unpreserved and we review his claim for mistakes apparent
on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

        An ineffective assistance claim “is a mixed question of fact and constitutional law. A
judge must first find the facts, then must decide whether those facts establish a violation of the
defendant's constitutional right to the effective assistance of counsel.” People v Grant, 470 Mich
477, 484; 684 NW2d 686 (2004). To merit a new trial because of ineffective assistance of
counsel, the defendant has the heavy burden of demonstrating that defense counsel's performance
was so deficient that he was not functioning as constitutionally guaranteed “counsel” and that
defense counsel's performance prejudiced the defendant to the extent that it is reasonably
probable that the outcome of the proceedings would have been different. People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001), quoting Strickland v Washington, 466 U S 668; 104 S Ct
2052; 80 L Ed 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, then,
defendant must prove two components: (1) that counsel's performance was deficient and that,
under an objective standard of reasonableness, counsel made an error so serious that he was not
performing as the attorney guaranteed by the constitution and (2) prejudice. People v Pickens,
446 Mich 298, 302-303; 521 NW2d 797 (1994); Strickland, 466 US at 687. To satisfy the first
component, defendant must show that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
supra at 687. The second component requires the defendant to show “the existence of a
reasonable probability that, but for counsel's error, the result of the proceeding would have been
different.” Carbin, 463 Mich at 600. Defendant must overcome the presumption that the
challenged conduct might be considered sound trial strategy and must further show that he was
prejudiced by the error in question. Pickens, 446 Mich at 312-314. That a particular trial
strategy does not work does not necessarily constitute ineffective assistance of counsel. Id. at 61.

        Defendant directs us to three instances that he claims amount to ineffective assistance on
trial counsel’s part. First, defendant asserts that counsel was deficient in failing to call Sergeant
Martel as a witness at trial to refute Allen’s testimony that when he identified someone other
than defendant as the shooter in a photo array while he was in the hospital, it was because he was
under the influence of morphine. According to defendant, at his first trial, which resulted in a
hung jury (and a mistrial) on the first degree murder charge, Martel’s testimony had made it clear
that Allen was coherent when he identified a Deonte Miller as the shooter and that based on
Allen’s identification, Martel prepared a search warrant for Miller’s home. Defendant contends
that Allen’s identification of him as the shooter was critical to the prosecution’s case and, as
such, it was critically important for defense counsel to properly challenge Allen’s testimony
through Martel.

       At defendant’s first trial Allen testified that on the date of the incident, when he first had
contact with the police, he was in the hospital and “had like a lot of morphine inside me.” Allen

                                                -6-
testified that he was unable to write at that time and the officers asked him to explain what had
happened. Allen testified that officers also showed him six photographs and that he was able to
identify someone in the photographs but that he does not know who he identified because “at the
time . . . I was so out of it.” Allen testified that he identified the person who looked closest to
defendant because he really did not know defendant. It is undisputed that Allen identified
someone other than defendant as the shooter in the photo array.

       Martel testified that he was not in the room when Allen made an identification of
someone in the photo lineup. He testified that he also took a statement from Allen. He testified
that Allen may have been on some medication or painkillers when he gave the statement to
Martel, but that Allen seemed coherent. Martel testified that he would not have taken his
statement had he not believed Allen to be coherent.

        It is true that Martel’s testimony would have placed doubt on Allen’s testimony that he
mistakenly identified someone other than defendant in the photo lineup due to drug intoxication.
However, decisions on whether to call or question witnesses are presumed to be matters of trial
strategy that will not be second-guessed on appeal. People v Horn, 279 Mich App 31, 39; 755
NW2d 212 (2008). Even if counsel’s failure to call Martel as a witness was in error, it cannot be
said to have been outcome determinative. This is necessarily so, as Allen participated in a live
lineup after being released from the hospital and identified defendant, who was irrefutably part
of that lineup, as the shooter. Thus, Allen’s later positive identification of defendant as the
shooter would likely have negated any effect of his initial photo identification of another person
as the shooter. Thus, counsel did not render ineffective assistance in failing to call Martel as a
witness.

       Defendant next contends that counsel was ineffective for failing to enter a stipulation that
was entered at his first trial—that Detective Myron Love would testify that he showed McFadden
a photo lineup; that defendant’s picture was not included in the photo lineup; that McFadden
picked out three people, and; that Love did not remember who McFadden picked out.

         It is not clear from the record why the above stipulation was entered. However, it is clear
that Love appeared at defendant’s second trial and testified. Thus, a stipulation as to what he
would have testified to was obviously not an option at that point. Defendant has also provided
nothing to indicate that defense counsel failed to request the same stipulation, rather than that he
perhaps sought the same stipulation and was denied the opportunity to present it at trial instead
of Love’s live testimony. Given the above, it cannot be found that counsel was ineffective for
failing to procure the stipulation.

       Moreover, the only way in which Love’s testimony at trial differed from the stipulation
was that at defendant’s trial, Love testified that he was unsure whether defendant’s photo was
included in the photo array and the stipulation provided that defendant’s photo was not in the
photo array. While defendant makes much of this distinction and contends that the difference
was significant in undermining McFadden’s testimony at trial that he was positive he picked
defendant’s photo out of the photo array, defense counsel elicited from Love that had McFadden
picked defendant out of a photo array they would have had documentation of the same and they
did not. Thus, counsel effectively undermined McFadden’s credibility in asserting that he had
picked defendant out of a photo lineup despite the difference between the stipulation and the live

                                                -7-
testimony. Defense counsel was thus not ineffective in failing to procure the same stipulation
regarding Love’s testimony that was presented at his first trial.

        Defendant also argues that counsel was ineffective in declining to cross-examine
investigator Simon. At his first trial, defendant points out that his trial counsel cross-examined
Simon regarding her treatment of people she has interrogated. Counsel elicited that Simon had
lied to suspects during interrogations, had cursed at them, and had told them if they did not talk
they were going to jail. Counsel asked Simon if she had threatened witness Bobby Bailey during
her questioning of him and Simon denied threatening him, telling him to shut up, or threatening
to ruin his business because he did not tell her what she wanted to know. While defendant
argues that Simon’s alleged threats were an important piece of the defense theory that the police
engaged in misconduct, defendant has identified no other alleged acts of misconduct on the part
of the police or further explained how any theory of misconduct was conveyed to the jury and
influenced or was intended to influence his case. And, any admissions that first trial counsel
elicited form Simon about any untoward treatment of persons she questioned was limited to
treatment of suspects—not of witnesses such as Bailey.

       Additionally, because Simon unequivocally denied making any threat in any form to
Bailey in the first trial, it was reasonable for defense counsel at defendant’s second trial to
conclude she would testify consistently and deny any wrongdoing. And on direct examination
by the prosecution, she, in fact, did. Thus, it would be a reasonable trial strategy to elicit from
Bailey, as defense counsel did, that Simon had threatened him and that Bailey had just agreed to
whatever she said due to the threats, that Simon told him to shut up and would not let him talk
and just wanted to make the shooter defendant, and let those accusations stand unanswered by
Simon to the greatest degree possible. Though the prosecutor asked Simon on direct whether she
had threatened Bailey during her questioning of him and she again denied making any threats,
there would be nothing gained by defense counsel again asking her the same questions and
having her reiterate her denials. This Court will not substitute its judgment for trial counsel's in
matters of trial strategy. People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999).

         Defendant’s next argument on appeal is that his conviction was obtained through the use
of false and/or perjured testimony, thus denying him his due process rights. Specifically,
defendant contends that witness McFadden testified at the second trial that he was positive he
identified defendant in a photo array and that this testimony is contrary to the stipulation entered
in the first trial of Detective Love that defendant was not in the photo array and of Love’s
testimony in the second trial that if McFadden had identified defendant, there would have been
documentation of the same. Defendant asserts that, similarly, Love’s testimony at the second
trial that he was unsure whether defendant’s photo was in the array was false and/or perjured as
it contrasted with the stipulation in the first trial that defendant’s photo was not in the array. We
review this unpreserved allegation of constitutional error for plain error affecting the defendant's
substantial rights. People v Carines, 460 Mich 750, 763–764; 597 NW2d 130 (1999).

       A conviction obtained through the knowing use of perjured testimony offends a
defendant's due process protections guaranteed under the Fourteenth Amendment. Mooney v
Holohan, 294 US 103, 112; 55 S Ct 340; 79 L Ed 791 (1935); Napue v Illinois, 360 US 264, 269;
79 S Ct 1173; 3 L Ed 2d 1217 (1959); People v Aceval, 282 Mich App 379, 389-390; 764 NW2d
285 (2009). If there is any reasonable likelihood that the false testimony could have affected the

                                                -8-
judgment of the jury, the conviction must be set aside. Aceval, 282 Mich App at 389-390.
Stated differently, a conviction will be reversed and a new trial will be ordered, but only if the
tainted evidence is material to the defendant's guilt or punishment. Id.

       Michigan courts have also recognized that the prosecutor has a duty to correct false
evidence. See People v Herndon, 246 Mich App 371, 417; 633 NW2d 376 (2001). But the mere
fact that a witness's testimony conflicts with earlier statements does not establish that a
prosecutor knowingly presented perjured testimony. People v Parker, 230 Mich App 677, 690;
584 NW2d 753 (1998). Perjury requires a material, willful false statement. In re Contempt of
Henry, 282 Mich App 656, 677–678; 765 NW2d 44 (2009).

         There is no indication in the record that the prosecutor, who was the same person for both
trials, concealed any prior contradictory statements or elicited and allowed perjured testimony to
stand, or even that the statements were, in fact contradictory or perjured. With respect to Love,
as previously indicated, a stipulation was entered in the first trial that “. . . if Detective Myron
Love showed, the testimony would be Detective Myron Love showed Frederick McFadden a
photographic line-up regarding the shooting of Tyrone Simpson. In front of Detective Love,
Frederick McFadden picked out three people. Detective Love does not remember who Frederick
McFadden identified, but Deonte Howard was not one of those people.” The prosecutor added,
“He was no[t] in the line-up.” At this point defense counsel stated, “Right. Deonte Howard was
not in the photographic line-up that was shown to Frederick McFadden . . . .” The prosecutor
stated, “That’s correct, Judge. And I’ve sign[ed] the document to that effect.”

       At defendant’s second trial, Love appeared as a witness and testified that he showed a
photo array with six photos to McFadden. When advised that there were two different suspects
involved in the case, Love indicated that he believed he was involved with the first suspect
[Deonte Miller]. Love testified that when shown the photo array, McFadden picked out three
people that he indicated he recognized. Love further testified that he was “not really positive” if
defendant’s photo was in the photo array. Love testified that he did not have a copy of the photo
array and he had no documentation to show that McFadden had picked defendant out of the
photo array. Love testified that had McFadden picked out defendant, they would have had
documentation of the same.

         Clearly, Love was not in charge of what the prosecutor and defense counsel in the first
trial placed on the record as far as the stipulation that defendant was not part of the photo array
shown to McFadden. The prosecutor was the individual who volunteered this information as
part of the stipulation so likely had a basis for making such a statement, but that would be bare
speculation at this point. In any event, Love’s live testimony at defendant’s second trial does not
contradict this stipulation. Instead, Love simply stated he was “not positive” whether
defendant’s photo was or was not part of the array, indicating a lapse of memory, not a material,
willful false statement. See In re Contempt of Henry, 282 Mich App at 677–678.

       Concerning McFadden, at defendant’s first trial McFadden testified that he was shown
three pages of pictures and that he picked out “the shooter and two drivers.” At defendant’s
second trial, McFadden testified that he saw three pictures and that he picked out two people.
McFadden specifically testified that he picked out defendant and the driver. He testified that he
was “positive” that he picked out defendant in the photos. Notably, the prosecution did not ask

                                                -9-
McFadden any questions about the photo identification on direct examination—it was defense
counsel who elicited this information on cross-examination. In any event, comparing the
testimony at the two trials, while there are some differences, the significant factor is the absence
of any mention of defendant in McFadden’s first testimony. McFadden did not testify at the first
trial that he picked defendant out of the photo array; he testified that he picked out the shooter.
Thus there is no conflict with respect to defendant in his testimony at defendant’s second trial.

       According to defendant, McFadden’s testimony that he identified defendant as the
shooter in the photo array is nevertheless clearly false. However, all inconsistencies were
disclosed to the jury and it was for the jury to determine whether McFadden’s trial testimony,
including his alleged identification of defendant in a photo array, was credible. People v Davis,
241 Mich App at 700.

        Were we to find that the testimony was, in fact, false, it cannot be concluded that the
admission of the testimony affected the jury’s verdict and thus the outcome of the trial. Not only
did McFadden identify defendant in court as the shooter, several other eyewitnesses, whose
credibility defendant does not challenge, also unequivocally identified defendant as the shooter.

        Defendant’s final argument on appeal is that the Supreme Court’s ruling in Miller v
Alabama __ US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012) prohibits a sentence of life without
the possibility of parole imposed under a statutory scheme that requires mandatory life for those,
such as defendant, who were juveniles at the time of the offense. We review this unpreserved
constitutional issue for plain error affecting defendant's substantial rights. See Carines, 460
Mich 750, 764; 597 NW2d 130 (1999).

         To avoid issue forfeiture under the plain-error rule, defendant must prove the following:
(1) there was an error, (2) the error was plain, and (3) the plain error affected substantial rights,
i.e., the outcome of the lower-court proceedings. Id. at 763. Once defendant has established
these requirements, this Court “must exercise its discretion in deciding whether to reverse.” Id.
Reversal is warranted only if the error seriously affected the fairness, integrity, or public
reputation of the judicial proceedings or resulted in the conviction of an actually innocent person.
Id.

       In Miller, 132 S Ct 2455, the United States Supreme Court held that mandatory life
imprisonment without the possibility of parole for those under the age of 18 when they
committed a crime violated the Eighth Amendment’s prohibition against cruel and unusual
punishment. Looking to its precedents, the Supreme Court noted that it had historically treated
juveniles differently from adults and, because of their lesser culpability, has barred capital
punishments for juveniles and barred life imprisonment without the possibility of parole in non-
homicide cases as violative of the Eighth Amendment’s protection against cruel and unusual
punishment. Id. at 2463-2465. The Miller Court further stated:

       Mandatory life without parole for a juvenile precludes consideration of his
       chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents taking
       into account the family and home environment that surrounds him—and from
       which he cannot usually extricate himself—no matter how brutal or

                                                -10-
       dysfunctional. It neglects the circumstances of the homicide offense, including
       the extent of his participation in the conduct and the way familial and peer
       pressures may have affected him. Indeed, it ignores that he might have been
       charged and convicted of a lesser offense if not for incompetencies associated
       with youth—for example, his inability to deal with police officers or prosecutors
       (including on a plea agreement) or his incapacity to assist his own attorneys. See,
       e.g., Graham[v Florida], 560 US 48, [at 78], 130 S Ct [2011], at 2032 [176 L Ed
       2d (2010)] (“[T]he features that distinguish juveniles from adults also put them at
       a significant disadvantage in criminal proceedings”); J.D.B. v North Carolina,
       564 US ––––, 131 S Ct 2394, 2400–2401, 180 L Ed 2d 310 (2011) (discussing
       children's responses to interrogation). And finally, this mandatory punishment
       disregards the possibility of rehabilitation even when the circumstances most
       suggest it. Id. at 2468.

       In holding that the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without the possibility of parole for juvenile offenders, the Miller Court specifically
declined to hold that the Eighth Amendment requires a categorical bar on life without parole for
juveniles. Id. at 2469. The Miller Court did, however require a sentencing court in juvenile
homicide cases to “take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” Id.

        A panel of this Court recently considered the applicability of Miller to Michigan juvenile
homicide cases. In People v Eliason, 300 Mich App 293, 295; 833 NW2d 357 (2013), this Court
reviewed a 14- year-old’s appeal of his conviction for first degree premeditated murder and the
mandatory sentence of life imprisonment without the possibility of parole that was imposed.
Referencing Miller, this Court held that because the defendant’s case was pending on direct
review at the time Miller was decided, “therefore, Miller applies and defendant's mandatory
sentence of life imprisonment without the possibility of parole constitutes cruel and unusual
punishment under the Eighth Amendment.” Eliason, 300 Mich App at 309. The Eliason Court
also explained that a prior published Court of Appeals case discussing the effect of the Miller
decision, People v Carp, 298 Mich App 472, 526–527; 828 NW2d 685 (2012), only determined
that the “limited holding in Miller was that a juvenile cannot be automatically subjected to a
punishment of life imprisonment without the possibility of parole” and that the actual holding in
Carp was “that Miller did not apply retroactively to collateral challenges to sentences.” Eliason,
300 Mich App at 309. The Eliason Court explained the remedy for juveniles convicted of
homicide and sentenced to mandatory life in prison without parole after Miller as thus:

              However, contrary to defendant's assertions, he is not entitled to a remand
       at which the trial court has unfettered discretion to impose a sentence for any term
       of years. In fact, he could still receive the same sentence on remand, as the Miller
       Court did not “foreclose a sentencer's ability” to sentence a juvenile in a homicide
       case to life imprisonment without parole, so long as the sentence “take[s] into
       account how children are different, and how those differences counsel against
       irrevocably sentencing them to a lifetime in prison.” Id. at ––––, 132 S Ct at
       2469. In other words, a trial court can still sentence a juvenile who committed a
       homicide to life in prison without the possibility of parole, so long as that
       sentence is an individualized one that takes into consideration the factors outlined

                                              -11-
       in Miller. Id. at ––––, 132 S Ct at 2466–2467, 2471. We recognized as much in
       Carp, 298 Mich App at 525, where we opined in dicta that the rule from Miller
       “does not . . . imply that a sentencing court has unfettered discretion when
       sentencing a juvenile. Rather, the focus is on the discretion of the sentencer to
       determine whether to impose the harshest penalty of life without the possibility of
       parole on a juvenile convicted of a homicide offense.”

       Therefore, the only discretion afforded to the trial court in light of our first-degree
       murder statutes and Miller is whether to impose a penalty of life imprisonment
       without the possibility of parole or life imprisonment with the possibility of
       parole. Carp, 298 Mich App at 527. In deciding whether to impose a life
       sentence with or without the possibility of parole, the trial court is to be guided by
       the following nonexclusive list of factors:

       (a) the character and record of the individual offender [and] the circumstances of
       the offense, (b) the chronological age of the minor, (c) the background and mental
       and emotional development of a youthful defendant, (d) the family and home
       environment, (e) the circumstances of the homicide offense, including the extent
       of his participation in the conduct and the way familial and peer pressure may
       have affected [the juvenile], (f) whether the juvenile might have been charged
       [with] and convicted of a lesser offense if not for incompetencies associated with
       youth, and (g) the potential for rehabilitation. [ Id. at 532, citing Miller, 567 US at
       ––––, 132 S Ct at 2467–2468 (quotation marks and citations omitted).]

         However, in response to Miller, and after Eliason was decided, the Legislature enacted
MCL 769.25 and MCL 769.25a which “significantly altered Michigan’s sentencing scheme for
juvenile offenders convicted of crimes that had previously carried a sentence of life without
parole.” People v Carp, 496 Mich 440, 456; 852 NW2d 801 (2014). These statutes became
effective on March 4, 2014, and apply to a criminal defendant who is less than 18 at the time he
or she committed an offense either after the effective date of the amendatory act added the
statutes or was less than 18 prior to that effective date and (1) either the case was still pending in
the trial court or the applicable time periods for direct appellate review had not yet expired or (2)
on June 25, 2012, (the day before Miller was decided) the case was pending in the trial court or
the applicable time period for direct appellate review had not yet expired. MCL 769.25(1)(a)(i)
and (ii). The effect of MCL 769.25 is that juveniles who commit even the most serious of
offenses are no longer sentenced under the same fixed sentences as adults who commit the same
offenses may be sentenced. Under this new law, absent a motion by the prosecutor seeking a
sentence of life without parole, “the court shall sentence the individual to a term of imprisonment
for which the maximum term shall be not less than 60 years and the minimum term shall be not
less than 25 years or more than 40 years.” MCL 769.25(4) and (9); Carp, 496 Mich at 458. If
the prosecutor files a motion seeking life imprisonment without the possibility of parole for the
allowed enumerated offenses, the trial court must hold a hearing, at which it must consider the
factors listed in Miller and shall specify on the record any reasons supporting the sentence
imposed. MCL 769.25(6) and (7). Carp, 496 Mich at 458-459.

      More recently, in Carp, our Supreme Court considered the Eliason decision. That case,
when consolidated with People v Carp, unpublished opinion per curiam of the Court of Appeals

                                                -12-
issued November 15, 2012, (Docket No. 307758) and People v Davis, unpublished order of the
Court of Appeals, entered June 15, 2000, (Docket No. 224046), called upon our Supreme Court
to determine whether Miller should be applied retroactively to cases in which the defendant's
sentence became final for purposes of direct appellate review before Miller was decided and (2)
whether the Eighth Amendment of the United States Constitution or Const 1963, art 1, § 16
categorically bars the imposition of a life-without-parole sentence on a juvenile homicide
offender. Our Supreme Court decided both questions in the negative. Relevant to the instant
matter, however, the Supreme Court determined that while resentencing was indeed the proper
directive in Eliason, the trial court was not, as the Court of Appeals in Eliason indicated,
afforded with only the discretion to impose a penalty of life imprisonment without the possibility
of parole or life imprisonment with the possibility of parole. Instead, because the defendant’s
case was on direct review at the time Miller was decided, he was entitled to resentencing
pursuant to MCL 769.25(1)(b)(ii). The Supreme Court noted that:

       Under MCL 769.25(9), the default sentence for a juvenile convicted of first-
       degree murder is a sentence of a term of years within specific limits rather than
       life without parole. A juvenile defendant will only face a life-without-parole
       sentence if the prosecutor files a motion seeking that sentence and the trial court
       concludes following an individualized sentencing hearing in accordance with
       Miller that such a sentence is appropriate. MCL 769.25(2) through (7). Carp, 496
       Mich at 528.

In this case, defendant committed the crime at issue when he was 16 years old and was sentenced
on May 27, 2011, when he was 17 years of age. Due to a court error, it became necessary for the
trial court to enter an order to reinstate his claim of appeal on May 31, 2012.2 Defendant
thereafter filed his timely claim of appeal on July 5, 2012. Because defendant’s time for filing
an appeal had not expired when Miller was decided (June 25, 2012), he is entitled to
resentencing pursuant to MCL 769.25(1)(b)(i). See, Carp, supra.

     We therefore affirm defendant’s convictions, but remand for resentencing pursuant to
MCL 769.25(1)(b)(i). We do not retain jurisdiction.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Deborah A. Servitto




2
  Defendant signed a written request for appellate counsel on May 31, 2011, but, for reasons
unknown, this form request was not processed by Wayne County. In January 2012, defendant
wrote to the trial judge, again requesting the appointment of appellate counsel. His request and
appeal were properly pursued at that point and his appeal, though now technically untimely
through no fault of his own, was regarded as a claim of appeal.


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