                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 February 25, 2016
              Plaintiff-Appellee,

v                                                                No. 324189
                                                                 Genesee Circuit Court
SHUKUR TEROME BROWN,                                             LC No. 13-034170-FC

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to 22-½ to 40 years’ imprisonment for his second-degree
murder conviction, and two years’ imprisonment for his felony-firearm conviction. We affirm.

        This case arises from the shooting death of 15-year-old Gianni Herron. Defendant, his
cousin Veondra Bartee, and Herron were in defendant’s basement during the early morning
hours of January 1, 2013. The three smoked marijuana while “playing” with guns in the
basement. The three were “playing, giggling,” while holding their guns and pointing them at
each other. At some point between 2:00 a.m. and 3:00 a.m., however, Herron jokingly pointed
his gun at Bartee and said, “I could have shot you . . . .” In response, Bartee, also jokingly,
raised his gun at Herron and said, “[N]o it won’t happen like that.” Defendant also raised his
shotgun in jest towards Herron and said, “[W]on’t happen like that.” However, defendant’s
shotgun discharged, striking Herron in the upper-right chest. Herron was declared dead soon
thereafter at the hospital.

       Defendant argues that his speedy trial right was violated, as the 19-month delay that
defendant had no part in causing was presumptively prejudicial. We disagree.

       “A defendant must make a formal demand on the record to preserve a speedy trial issue
for appeal.” People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999) (citation and quotation
marks omitted). Here, defendant never made a formal demand on the record regarding his
speedy trial right. Accordingly, this issue is unpreserved for appellate review.

       This Court reviews unpreserved constitutional errors for plain error affecting a
defendant’s substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
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Plain error analysis requires three findings: 1) error, 2) that is plain, 3) which affects substantial
rights. Id. at 763. A plain error will generally affect substantial rights when there is a showing
of prejudice—“that the error affected the outcome of the lower court proceedings.” Id. Once the
three findings for plain error are met, “reversal is warranted only when the plain . . . error
resulted in the conviction of an actually innocent defendant or when an error seriously affected
the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. at 763-764 (citation and quotation marks omitted).

        The United States Constitution and the Michigan Constitution both guarantee a criminal
defendant the right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20; People v
Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). To determine whether the right has been
violated, this Court must balance four factors: “(1) the length of delay, (2) the reason for delay,
(3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.” Williams, 475
Mich at 261-262. “The time for judging whether the right to a speedy trial has been violated
runs from the date of the defendant’s arrest.” Id. at 261. Where a delay is 18 months or longer,
“prejudice is presumed, and the burden shifts to the prosecution to show that there was no
injury.” Id. at 262. Thus, in sum, “a presumptively prejudicial delay triggers an inquiry into the
other factors to be considered in the balancing of the competing interests to determine whether a
defendant has been deprived of the right to a speedy trial.” Id. (citation and quotation marks
omitted).

        In assessing the reasons for delay factor, unexplained delays are attributed to the
prosecution, and scheduling delays and docket congestion are also attributed to the prosecution.
People v Waclawski, 286 Mich App 634, 666; 780 NW2d 321 (2009). However, while “delays
inherent in the court system, e.g., docket congestion, are technically attributable to the
prosecution, they are given a neutral tint and are assigned only minimal weight in determining
whether a defendant was denied a speedy trial.” Id. (citation and quotation marks omitted). Yet,
“the time needed to adjudicate defense motions is charged to the defendant.” People v Gilmore,
222 Mich App 442, 461; 564 NW2d 158 (1997).

       A defendant can be prejudiced by delay in two ways: “prejudice to his person and
prejudice to the defense.” Williams, 475 Mich at 264 (citation and quotation marks omitted). As
previously mentioned, where a delay is 18 months or longer, “prejudice is presumed, and the
burden shifts to the prosecution to show that there was no injury.” Id. at 262. Thus, in a case
where the delay is 18 months or longer, the prosecution must rebut the presumption that the
defendant’s extended incarceration was not prejudicial physically or to the legal defense.
However, where the defendant’s legal defense is not prejudiced by the delay, the prejudice factor
weighs against the defendant, despite personal prejudice. Id. at 264.

        Defendant’s right to a speedy trial was not violated. First, in considering the length of the
delay, defendant was brought to trial approximately 579 days after he was arrested.1 Therefore,


1
  The record is not precisely clear when defendant was arrested. The record does indicate,
however, that defendant was read his Miranda rights on January 3, 2013, and that he confessed
to the shooting on the same day. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

                                                 -2-
defendant’s delay is clearly more than 18 months, and accordingly, prejudice is presumed and
left for the prosecution to rebut. See id. at 262.

         Second, the reasons for delay factor does not tilt in favor of either defendant or the
prosecution. January 3, 2013, to January 15, 2013 (12 days)—the time between arrest and
defendant’s request for competency and criminal responsibility examinations—is attributed to
the prosecution, albeit neutrally, as defendant was merely awaiting process from the district
court. However, January 15, 2013, to September 24, 2013 (252 days), is attributed to defendant,
as this was the time defendant was awaiting his requested competency and criminal
responsibility examinations. Defendant was found competent to proceed by the district court on
September 24, 2013. September 24, 2013, to November 13, 2013 (50 days), is neutrally
attributable to the prosecution, as defendant was awaiting his preliminary examination and
bindover at this point. Furthermore, November 13, 2013, to August 5, 2014 (265 days), is
neutrally attributable to the prosecution, as the prosecution was awaiting lab reports and waiting
for trial to begin. In sum, defendant was responsible for roughly half of the days constituting his
delay, as defendant is responsible for adjudications on his own motions. See Gilmore, 222 Mich
App at 461 (holding that “the time needed to adjudicate defense motions is charged to
defendant”). The prosecution in turn was neutrally responsible for the other half, as the time
spent awaiting DNA lab reports and scheduling is neutrally attributable to the prosecution. See
Waclawski, 286 Mich App at 666 (holding that delays “inherent” in the court system are
neutrally attributable to the prosecution). Accordingly, this factor cannot tilt towards either
defendant or the prosecution.

        Third, the assertion-of-the-right factor tilts against defendant. At no point did defendant
assert his right to a speedy trial. On appeal, defendant claims the following: “The record
indicates that Defendant was ready for trial to commence on March 11, 2014.” However, we
note that defendant’s trial counsel did not actually state that defendant was ready for trial to
commence on March 11, 2014. Trial counsel merely said, “I have that [date] on my calendar as
far as being the trial.” To take such a statement as an assertion of the right to a speedy trial
would be a tenuous interpretation. See Williams, 475 Mich at 263 (holding that because
defendant had “not objected to any of the delays,” there could be no assertion of the right to a
speedy trial; emphasis added).

       Finally, the prejudice factor weighs against defendant. As defendant’s delay was over 18
months and presumptively prejudicial, the burden is upon the prosecution to prove that
defendant’s delay was not prejudicial to defendant’s person or defense. Id. at 264. The
prosecution argues on appeal that defendant does not show how the presence of Bartee as a
witness would have bolstered his defense, and further contends that Bartee could have possibly
been the prosecution’s best witness, as he would have confirmed the account of the events that
defendant himself confessed to. We agree. Considering that defendant openly confessed to the
murder, Bartee’s presence as a witness would not have bolstered defendant’s case, and
furthermore, defendant cannot describe what Bartee would have offered. While the prosecution
must also rebut the presumption that defendant was personally prejudiced by the long

(1966). Therefore, defendant was arrested as early as January 3, 2013, and was certainly arrested
by the time of his arraignment on January 9, 2013.

                                                -3-
incarceration, the fact that defendant’s legal defense was not prejudiced necessarily tilts the
prejudice factor in favor of the prosecution. See Williams, 475 Mich at 264 (holding that where
the legal defense is not prejudiced, the prejudice factor counts against the defendant, despite
possible personal prejudice).

        Considering that defendant did not assert his right to a speedy trial, was not prejudiced by
the delay, and was actually largely responsible for the delay, his right to a speedy trial was not
violated, and accordingly, there is no plain error affecting defendant’s substantial rights. In
support of this conclusion, the Michigan Supreme Court found no speedy trial violation in a case
similar to the one at bar. In Williams, 475 Mich at 261-265, 19 months elapsed between the
defendant’s arrest and trial, and the defendant actually asserted his speedy trial right (albeit the
day before trial). The prosecution was responsible for much of the delay, and the prosecution
could not give a compelling reason as to why the defendant’s case was delayed. Id. at 262-263.
However, the defendant’s legal defense was not prejudiced, as the defendant made no specific
claim that his legal defense was hampered, and accordingly, no speedy trial violation was found.
Id. at 264-265.

        Next, defendant argues that the trial court erred by failing to give defendant’s requested
jury instructions on self-defense. We disagree.

        “[J]ury instructions that involve questions of law are . . . reviewed de novo.” People v
Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). However, “a trial court’s determination
whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of
discretion.” Id. “An abuse of discretion occurs when the court chooses an outcome that falls
outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App 210,
217; 749 NW2d 272 (2008). Furthermore, “[a] trial court necessarily abuses its discretion when
it makes an error of law.” People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012).

         “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). Accordingly, “[w]hen
a defendant requests a jury instruction on a theory or defense that is supported by the evidence,
the trial court must give the instruction.” Id. “A defendant asserting an affirmative defense must
produce some evidence on all the elements of the defense before the trial court is required to
instruct the jury regarding the affirmative defense.” People v Guajardo, 300 Mich App 26, 34-
35; 832 NW2d 409 (2013). “However, if an applicable instruction was not given, the defendant
bears the burden of establishing that the trial court’s failure to give the requested instruction
resulted in a miscarriage of justice.” Riddle, 467 Mich at 124. A defendant’s conviction will not
be overturned “unless, after examining the nature of the error in light of the weight and strength
of the untainted evidence, it affirmatively appears that it is more probable than not that the error
was outcome determinative.” Id. at 124-125.

      The affirmative defense of self-defense is codified in the Self-Defense Act (SDA). MCL
780.971 et seq.; Guajardo, 300 Mich App at 35-36. The relevant portion of the act—MCL
780.972(1)—provides the following:

       (1) An individual who has not or is not engaged in the commission of a crime at
       the time he or she uses deadly force may use deadly force against another

                                                -4-
       individual anywhere he or she has the legal right to be with no duty to retreat if
       either of the following applies:

               (a) The individual honestly and reasonably believes that the use of deadly
       force is necessary to prevent the imminent death of or imminent great bodily harm
       to himself or herself or to another individual.

Therefore, to receive an instruction on self-defense, the defendant is responsible for presenting
“some evidence” that he was not committing a crime when he used deadly force, that he honestly
and reasonably believed that he was in danger of imminent death or great bodily harm, and that
he honestly and reasonably believed that the use of deadly force would prevent imminent death
or great bodily harm. See MCL 780.972(1)(a); Guajardo, 300 Mich App at 34-35.

        Defendant did not present “some” evidence regarding all the elements of self-defense.
Defendant argues that when Herron said “I got you” to defendant, he was in fear for his life, and
was accordingly justified in shooting Herron. Herron never said “I got you” to defendant. The
record indicates that Herron said to Bartee, “I could have shot you.” Nonetheless, the record also
indicates that defendant, Bartee, and Herron were “playing.” Defendant told police officers the
following:

              And my cousin had a .25 and he pointed it at Gianni like, no it won’t
       happen like that. We was playing, we all was playing, giggling, like no it won’t
       happen like that. I raised my gun and said it, won’t happen like that. I raised it
       and it was going down and it shot and he just held his heart, like call the
       ambulance and I just went crazy.

The record makes clear that the evidence presented actually gravitates against defendant honestly
and reasonably believing that deadly force was required to prevent imminent death or great
bodily harm. Defendant unequivocally indicated that he was “playing” with the other two.
Defendant also indicated that he was in the process of lowering the gun—“it was going down
and it shot . . . .” In fact, defendant actually told police officers that the gun Herron was
wielding—a “High Point 9”—was “dead,” thus possibly indicating that defendant knew the gun
was not functional. Moreover, defendant failed to present evidence showing that he was not in
the process of committing a crime, and to the contrary, might have actually proven that he was
committing a crime.2 Therefore, defendant failed to present “some” evidence to support each
element of self-defense. Accordingly, the trial court did not abuse its discretion in denying
defendant’s request for a self-defense jury instruction.

        Finally, defendant argues that trial counsel provided ineffective assistance because he
failed to request a missing witness instruction. We disagree.




2
 Defendant readily told police officers that they were “smoking a blunt,” and brandishing their
weapons at each other.

                                               -5-
        “[A] defendant must move the trial court for a new trial or evidentiary hearing to preserve
the defendant’s claim that his or her counsel was ineffective.” People v Lane, 308 Mich App 38,
68; 862 NW2d 446 (2014). Here, defendant did not move for a new trial or request an
evidentiary hearing regarding ineffective assistance of counsel below. Therefore, this issue is
unpreserved for appellate review.

       “[T]his Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of law.” Lane, 308 Mich App at 67-68. “When the trial court has not conducted a
hearing to determine whether a defendant’s counsel was ineffective, our review is limited to
mistakes apparent from the record.” Id. at 68.

        The Sixth Amendment to the United States Constitution, as incorporated to the states
through the Fourteenth Amendment, in addition to the Michigan Constitution, guarantees
criminal defendants the right to the assistance of counsel. US Const, Am VI; Const 1963, art 1,
§ 20; Gideon v Wainwright, 372 US 335, 345; 83 S Ct 792; 9 L Ed 2d 799 (1963). The right to
counsel necessarily includes the right to effective assistance of counsel. People v Vaughn, 491
Mich 642, 669; 821 NW2d 288 (2012). Generally, to make an ineffective assistance of counsel
claim, a defendant must show first that “counsel’s representation fell below an objective standard
of reasonableness,” and second, that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v
Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In determining
whether Strickland’s two-part test is met, the reviewing court must be mindful that “[d]efense
counsel should be strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Vaughn, 491 Mich at
670 (citation and quotation marks omitted). Additionally, “[t]he defendant must also overcome
the presumption that the challenged action might be considered sound trial strategy.” People v
Brown, 279 Mich App 116, 140; 755 NW2d 664 (2008).

         Under MCL 767.40a(1), a prosecutor “shall attach to the filed information a list of all
witnesses known to the prosecuting attorney who might be called at trial and all res gestae
witnesses known to the prosecuting attorney or investigating law enforcement officers.”
Furthermore, MCL 767.40a(3) provides that “[n]ot less than 30 days before the trial, the
prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the
prosecuting attorney intends to produce at trial.” Additionally, pursuant to MCL 767.40a(4),
“[t]he prosecuting attorney may add or delete from the list of witnesses he or she intends to call
at trial at any time upon leave of the court and for good cause shown or by stipulation of the
parties.” In the event that the prosecution fails to produce an endorsed witness, the prosecution
“may show that the witness could not be produced despite the exercise of due diligence.” People
v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). However, “[i]f the trial court finds a
lack of due diligence, the jury should be instructed that it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case.” Id. “[D]ue diligence is the
attempt to do everything reasonable, not everything possible, to obtain the presence of a
witness . . . .” Id. at 391. This Court has found due diligence to exist when the prosecution
pursued all reasonable leads and made multiple visits to known family members. Id. at 389-390
(holding that the prosecution’s numerous visits and sustained contact with the missing witness’s
mother and girlfriend and multiple visits to the witness’s known addresses constituted due
diligence).
                                                -6-
        Defendant’s trial counsel did not provide ineffective assistance because trial counsel’s
failure to ask for a missing witness instruction was not performance falling below an objective
standard of reasonableness. Furthermore, even assuming that trial counsel’s performance was
deficient, defendant was not prejudiced. First, trial counsel’s performance was adequate and
objectively reasonable, as defendant was not entitled to a missing witness instruction based on
the evidence presented at trial. The prosecution does not contest that defendant’s father, Terry
Brown, and Bartee were endorsed res gestate witnesses. However, the prosecution presented
abundant evidence that it had exercised due diligence in trying to locate the two witnesses.
Michigan State Police Detective Trooper Tiffany Robbins—the law enforcement officer
responsible for locating Terry Brown and Bartee for trial—clearly exercised due diligence in her
efforts. To locate Bartee, Detective Trooper Robbins visited Bartee’s last known address, where
she made contact with members of Bartee’s family. Bartee’s family told Detective Trooper
Robbins that Bartee had been gone for several months, and provided her with an address in Port
Huron, Michigan. Detective Trooper Robbins contacted her colleague, Detective VanSingel, to
investigate the address, as Detective VanSingel was closer to Port Huron. At the Port Huron
address, Detective VanSingel learned that Bartee had not lived there for approximately two
months. With respect to Terry Brown, Detective Trooper Robbins visited two known addresses,
and established contact with defendant’s mother, but was informed that Terry Brown had likely
left the state. Even up until trial, Detective Trooper Robbins and her team periodically checked
the known addresses to see if either witness was back. The prosecution exercised due diligence
in attempting to locate the two witnesses. Through Detective Trooper Robbins and her team, the
prosecution made numerous visits to the witnesses’ known locations, established contact with
members of their families, and conducted routine checks to ensure that they were not back at the
locations. These efforts are virtually indistinguishable from the prosecution’s efforts in Eccles,
260 Mich App at 389-390. The prosecution is not required to do everything possible—only what
is reasonable. Id. at 391. Therefore, as a missing witness instruction would not be warranted,
trial counsel’s failure to ask for one could not be considered performance falling below an
objective standard of reasonableness.

        Second, assuming that counsel’s performance was deficient, defendant could not have
been prejudiced. Defendant claims that Bartee, with no mention of what Terry Brown would
have said, would have bolstered defendant’s self-defense claim. However, as discussed above,
defendant himself told police officers that the three had been “playing” and “giggling” with their
guns. Defendant was in the process of lowering his gun while still “playing” and “giggling”
when he shot Herron. Defendant likely knew that Herron’s gun did not work. Accordingly,
Bartee’s testimony, even assuming that he would have said that Herron had pointed a gun at
defendant, would most likely not have affected the outcome of defendant’s trial. Defendant fails
to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 US at 694.

       Affirmed.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ David H. Sawyer
                                                            /s/ Cynthia Diane Stephens

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