                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 1, 2018
               Plaintiff-Appellee,

v                                                                   No. 335334
                                                                    Wayne Circuit Court
JOSEPH EMMANU WATSON, also known as                                 LC No. 16-004499-01-FC
JOE E. WATSON and JOSEPH EMMANUEL
REED,

               Defendant-Appellant.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

        Defendant, Joseph Emmanu Watson, appeals by right his jury convictions of second
degree murder, MCL 750.317, assault with intent to inflict great bodily harm, MCL 750.84,
carrying a concealed weapon, MCL 750.227, possession of a firearm by a felon, MCL 750.224f,
and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b.
The trial court sentenced him to serve 50 to 75 years for second-degree murder, five to ten years
for the assault, two to five years for carrying a concealed weapon, two to five years for felon in
possession, and two years for felony firearm. For the reasons set forth in this opinion, we affirm.

                                       I. BACKGROUND

        This appeal arises out of the death of Jose Zambrano during a visit to the home of
defendant’s cousin, Lee Wilson (“Lee”) on February 20, 2016. The victim and Lee were friends
and neighbors. For the most part, the facts are not disputed. On that date, Lee was having a
party at his home when defendant arrived. According to Lee, defendant seemed to be “tripping”
after smoking some marijuana, and began accusing people of being out to get him and he was
also brandishing a gun. When Lee first saw defendant with the weapon he told defendant to put
the gun away and defendant complied. Lee then tried to get other party guests to take defendant
home, but none would because he had a gun. After defendant pulled his gun on numerous
occasions, Lee sent his children into a back bedroom in the home. It was shortly after this that
the victim arrived with his three-year-old son Angel. The victim greeted the family, and as Lee
reached to pick up Angel to hug the child, defendant fired multiple shots.

       Two bullets hit the victim and he fell to the ground. Another guest, who was shot in the
arm, ran out of the room. Defendant also shot at Lee’s mother, who ran out of the room and got
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Angel and another child to the relative safety of the back room. Defendant then grabbed Lee and
forced him to the floor holding the gun to his head. Lee heard the victim say that he could not
breathe, and defendant said something about the victim still moving, then immediately shot the
victim a third time. The victim, who had been grazed on the chin and shot twice in the chest,
died from blood loss shortly thereafter.

        Calls were made to 911 and when four police officers arrived, defendant dropped the gun
and raised his hands. Three officers worked to secure the scene and one attended to the victim,
who was still breathing at that time. Defendant was handcuffed, but managed to break free and
run out the front door. Three officers chased him to a dead end street, where he tried to jump
through the window of a house and fought the officers before he was subdued and arrested.

        In addition to the weapons charges, defendant was charged with first-degree murder and
assault with intent to murder two other guests. The jury acquitted him of first-degree murder and
of the assault on Lee’s mother, but found him guilty of second degree murder and the assault on
another guest as well as all three weapons charges. During sentencing, the parties agreed that the
applicable minimum guideline range was 365 months to 600 months. Defense counsel argued
for a sentence below the guidelines on the ground that defendant was acting on delusional
thoughts about the victim due to having ecstasy in his system. The trial court proceeded to
sentence defendant to the maximum sentence within the guidelines, stating that the death and
harm wrought by defendant were both “senseless” and “tragic.”

       Defendant filed a motion to remand for resentencing, arguing that his sentence was
unreasonable. This Court denied the motion and this appeal ensued.

                                   II. JURY INSTRUCTIONS

        On appeal, defendant argues that the trial court erred in refusing to provide the jury
instruction for voluntary manslaughter as a lesser included defense because defendant was under
the influence of ecstasy and therefore unable to form the intent required for murder.

        This Court reviews questions of law concerning jury instructions de novo. People v
McMullan, 284 Mich App 149, 152; 771 NW2d 810 (2009). Jury instructions “must include all
elements of the crime charged and must not exclude consideration of material issues, defenses,
and theories for which there is supporting evidence.” People v Kurr, 253 Mich App 317, 327;
654 NW2d 651 (2002). A trial court’s duty to so instruct necessarily depends on the evidence
provided during the trial. People v Pouncey, 437 Mich 382, 387; 471 NW2d 346 (1991).
“[V]oluntary manslaughter is a cognate lesser included offense of murder.” Id. at 388. The rule
for whether an instruction must be given on a cognate lesser included offense is that, if the record
evidence “would support a conviction of the cognate lesser offense, then the trial judge, if
requested, must instruct on it.” Id. at 387. There must be more than some evidence, however. If
there is less than would be needed for a conviction, then the judge does not err in refusing to give
the instruction. Id.

         In Pouncey, our Supreme Court explained the elements of voluntary manslaughter:
“First, the defendant must kill in the heat of passion. Second, the passion must be caused by an
adequate provocation. Finally, there cannot be a lapse of time during which a reasonable person

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could control his passions.” Id. at 388. Provocation is adequate only when it would cause a
reasonable person to lose control. Id. at 389. The Court elaborated:

              “The law does not excuse actors whose behavior is caused by just any . . .
       emotional disturbance . . . . Rather, the law asks whether the victim’s provoking
       act aroused the defendant’s emotions to such a degree that the choice to refrain
       from crime became difficult for the defendant. The legal doctrine reflects the
       philosophical distinction between emotions that only cause choice and emotions
       so intense that they distort the very process of choosing.” [Id. at 389, quoting
       Moore, Causation and the Excuses, 73 Cal L Rev 1091, 1132 (1985) (emphasis
       added).]

        In Pouncey, as here, the issue was whether the defendant was sufficiently provoked.
There, the evidence showed that the defendant and his friends Mr. White and Mr. Johnston went
to the house of a Mr. Bland and accused him of stealing Mr. White’s car. When Mr. Bland
denied it, they left, but Mr. Bland followed them to Mr. White’s house with his older brother,
Mr. Powers, who became the victim in that case. Id. The argument continued, and the victim
threatened to “put the defendant ‘on his head,’ ” called the defendant names and walked towards
the defendant while being held back by his brother. Id. at 384-385. The defendant testified that
he knew that the victim was unarmed. Id. at 385. He walked into the house and came back with
a shotgun, instructing Mr. Johnston to hit the victim with a monkey wrench. When the victim
ducked the attempted blow, the defendant shot the victim and then drove away. Id. Because the
victim’s provocation of the defendant was purely verbal, the Supreme Court held that “[t]he
judge was absolutely correct in ruling that as a matter of law there was insufficient evidence to
establish an adequate provocation.” Id. at 391-392.

        Here, the evidence clearly established that the victim did not provoke defendant. Rather,
the victim had been invited to the house earlier that day, and came with his three-year-old son for
a visit with his close friends, as he did quite frequently. Defendant shot the victim almost
immediately as he was greeting the family, then shot him again as he lay defenseless on the
floor. Lacking any evidence of physical provocation by the victim, defendant argues that ecstasy
was the provocation, and that any reasonable person who took ecstasy would have become
paranoid and lost control of himself. Defendant does not cite to and this Court cannot find any
support for this argument aside from noting the standard for adequate provocation is objective;
that of a reasonable man, not a reasonable man on drugs.

      This Court explained the need for an objective standard in People v Sullivan, 231 Mich
App 510, 519; 586 NW2d 578 (1998):

                “If reasonableness were not required, a man who flew into a rage and
       killed a woman for refusing to have sex with him would be guilty of nothing more
       than manslaughter. Furthermore, when the law rewards irrational behavior, it
       encourages people to feign irrationality. Thus, if the man in the above
       hypothetical [a man who flies into a rage at the slightest insult] had coolly decided
       to kill the woman as punishment for her refusal, he would be encouraged to feign
       rage in order to mitigate his crime.” [Citation omitted.]


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Thus, Sullivan held that no special traits of a defendant may be considered when examining the
issue of adequate provocation, adding “[t]he fact that [the] defendant may have had some mental
disturbance is not relevant to the question of provocation.” Id. at 519-520. It is axiomatic that
the reasonable person standard does not include a person who is not reasonable because he is
under the influence of illegal narcotics at the time of the murder. Whether the defendant was
mentally disturbed, for whatever reason, bears no relevance to the question of whether he was
adequately provoked by the victim. Id. at 519-520. Therefore, the trial court did not err in
refusing to give the instruction for voluntary manslaughter. Defendant is not entitled to relief on
this issue.

         Defendant next argues that he was also entitled to have had the second paragraph of the
Michigan Criminal Jury Instruction 6.2(2) included as part of the jury instructions. MCJI 6.2(2)
states, in relevant part:

       The defendant is not guilty of [murder] if the defendant proves by a
       preponderance of the evidence that he lacked the intent to [kill] because he
       voluntarily consumed a legally obtained and properly used medication or other
       substance and did not know and reasonably should not have known that he would
       become intoxicated or impaired as a result. Jury instructions should not include
       any instruction that is unsupported by evidence. (Emphasis added.)

         Here, there was no evidence that defendant “consumed a legally obtained and properly
used medication or other substance and did not know and reasonable should not have known that
he would become intoxicated or impaired as a result.” The requested instruction applies only to
a defendant who consumed a legal medication, used it properly, and had no reasonable way to
know that he would become impaired as a result. In this case defendant, by his own admission,
took ecstasy, which is neither legal nor a medication. Nor can it be said to be a substance from
which defendant did not know that he would become intoxicated. Consequently, the plain
language of MCJI 6.2 compels us to conclude that defendant was not entitled to have the trial
court instruct the jury by reading MCJI 6.2(2). Accordingly, defendant is not entitled to relief on
this issue.

                                 III. REVIEW OF SENTENCE

       Defendant next argues that his sentence for murder should be reviewable for
reasonableness despite the fact that he was sentenced within the minimum sentence guidelines.

      This Court reviews de novo issues that involve the interpretation and application of the
minimum sentence guidelines. People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006).

        Our Supreme Court found Michigan’s sentencing guidelines to be constitutionally
deficient under Alleyne v United States, 570 US 99, 133 S Ct 2151, 186 L Ed 2d 314 (2013).
People v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015), concluding that Michigan’s
sentencing guidelines violate the Sixth Amendment right to a jury trial whenever judicially-




                                                -4-
found facts mandatorily increase the minimum sentencing range. Id. To cure the constitutional
deficiency, the Court severed MCL 769.34(2)1 to the extent that it compelled the sentencing of
defendants based on facts not admitted by the defendant or found by a jury beyond a reasonable
doubt, and struck down the requirement set forth in MCL 769.34(3)2 for a court to articulate a
“substantial and compelling reason” for departing from the guideline range. Id. at 364-365.
Consequently, while trial courts must still score the guidelines and consider that score in
sentencing a defendant, the guidelines are now advisory only, and “a sentence that departs from
the applicable guidelines range will be reviewed by an appellate court for reasonableness.” Id. at
365 (emphasis added). When our Supreme Court recently considered how such a review should
be conducted in People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), it again
characterized Lockridge as holding that “departure sentences post-Lockridge would be reviewed
for reasonableness.” Id. at 462 (emphasis added).

       MCL 769.34(10) requires appellate courts to affirm any minimum sentence that falls
within the guidelines range, unless there is an error in scoring the guidelines or inaccurate
information was relied on in determining the sentence.3 As we previously have determined, the
holding in Lockridge did not strike down or limit MCL 769.34(10) in any way. People v
Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016) (a reasonableness review is not
warranted because the sentence was within the applicable guidelines and the defendant did not
contend that any factor was scored incorrectly or inaccurate information relied upon).

        Like the defendant in Schrauben, defendant does not contend that the guidelines were
scored incorrectly or that erroneous information was relied upon in scoring the applicable
factors. He claims instead that Schrauben was wrongly decided and argues that a review should
be conducted any time a sentence departs upwards from the minimum guideline range that would
be applicable if only jury-found facts were used in scoring the sentencing factors. Defendant
provides no supporting authority for his position, and we are aware of none. Accordingly, we


1
    MCL 769.34(2) provides:
                 Except as otherwise provided in this subsection or for a departure from the
         appropriate minimum sentence range provided for under subsection (3), the
         minimum sentence imposed by a court of this state for a felony enumerated in part
         2 of chapter XVII committed on or after January 1, 1999 shall be within the
         appropriate sentence range under the version of those sentencing guidelines in
         effect on the date the crime was committed. (Emphasis added.)
2
  MCL 769.34(3) provides, in relevant part: “A court may depart from the appropriate sentence
range established under the sentencing guidelines set forth in chapter XVII2 if the court has a
substantial and compelling reason for that departure and states on the record the reasons for
departure.”
3
  MCL 769.34(10) provides, in relevant part: “If a minimum sentence is within the appropriate
guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for
resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant’s sentence.”


                                                 -5-
decline his implied offer to declare a conflict with Schrauben. Accordingly, because this case is
indistinguishable from Schrauben, we conclude that defendant is not entitled to have his sentence
reviewed for reasonableness.

       Affirmed.



                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Stephen L. Borrello
                                                           /s/ Brock A. Swartzle




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