                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 10, 2015
              Plaintiff-Appellee,

v                                                                  No. 319414
                                                                   Wayne Circuit Court
JASON ROSELL PECK,                                                 LC No. 13-005447-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       A jury convicted defendant of felony murder, MCL 750.316(1)(b), and torture, MCL
750.85, in relation to the stabbing death of Stacy Hightower.1 Defendant contends that his trial
counsel was ineffective for failing to request lesser included offense instructions in connection
with the felony-murder charge. Such instructions were not supported by a rational view of the
evidence, however. Defendant challenges counsel’s lack of trial preparation, a claim not
supported by the record. Defendant also raises a meritless claim of prosecutorial misconduct.
Absent any discernible error in the trial proceedings, we affirm.

                                       I. BACKGROUND

       On the evening in question, defendant met Hightower at a bar where a party was being
thrown. According to Hightower’s friends, defendant left the party right after Hightower and
followed her out. Defendant’s friend, on the other hand, testified that defendant left before
Hightower and that Hightower left with another woman and the disc jockey. Witnesses basically
agreed on defendant’s apparel that night, however. They asserted that defendant was wearing a
blue jean jacket and blue denim pants along with white and light blue gym shoes and a pair of
dark sunglasses.




1
  The prosecutor also charged defendant with first-degree premeditated murder and the jury
convicted him of the lesser included offense of second-degree murder. The trial court vacated
that conviction at sentencing.


                                               -1-
         About an hour later, a mother, SM, and her teenage son, DM, awakened in their second
floor apartment to the sound of a man speaking “aggressively” and a woman screaming. They
called 911. Despite contacting authorities four times, no one came to the rescue and the fight on
the first floor lasted 45 minutes. At one point during the extended ordeal, the witnesses heard the
woman beg, “just kill me.” They also heard the victim call her assailant “the devil.” They
recognized the sounds of a person being slammed against a wall and slapped, and someone
rummaging loudly through the apartment’s kitchen. They also heard someone unsuccessfully
trying to open the apartment door, implying that the victim was trying to escape. The mother
and son saw the assailant when he left the apartment building. He wore a blue jean “outfit” and
brown boots, and drove away in a white construction van with no windows and a ladder or
railing on the top.

        Investigating officers learned defendant’s name from employees at the bar where the
party had been thrown. They travelled to defendant’s residence and saw a white construction
van with a roof ladder rack parked in the driveway. Defendant exited the house while the police
awaited a search warrant. Defendant was wearing tan work boots, like those allegedly worn by
the assailant. The officers arrested defendant and found a pair of vice grips and bloody socks in
his pocket. DNA analysis revealed Hightower’s blood on the socks. Defendant’s hands smelled
like gasoline and bleach. A wet, freshly bleached blue jean outfit was found in defendant’s
basement. Defendant had a cut on one of his fingers.

        Officers found Hightower lying face down on the bedroom floor of her apartment. There
was blood throughout the apartment, including bloody fingerprints on the bedroom wall. A
piece of a knife blade and handle were found next to Hightower’s body. Hightower had been
stabbed approximately 60 times all over her body. The fatal cluster of 12 stab wounds was
located on the back of Hightower’s head and neck. She also had bruising on her right hand and
face, and several lacerations inside her mouth. Hightower also bore marks from being punched
and kicked. A pair of sunglasses bearing defendant’s DNA was found inside the apartment.

       The defense theory was that someone other than defendant committed the murder. In
support, defense witnesses testified that a white construction van belonging to an unknown third
party was parked outside the victim’s apartment shortly after the murder. Defendant also
explained his cut as a work injury from the day before the incident. In closing argument, counsel
focused on the absence of Hightower’s blood on the denim outfit and the failure to evaluate the
bloody fingerprint evidence on the bedroom wall. Defense counsel suggested that Hightower
may have accidentally brought home defendant’s sunglasses, explaining their presence in her
apartment. Counsel also suggested that the bloody socks found on defendant’s person were
planted by the police.

                                    II. JURY INSTRUCTIONS

        The prosecution charged defendant with alternate counts of first-degree murder—
premeditated and committed during a felony, specifically torture. After instructing the jury on
the premeditated murder charge, the court informed the jury that it could convict defendant of the
lesser included offense of second-degree murder. In relation to the felony-murder charge,
however, the court did not instruct the jury on a lesser included offense. Defendant contends that
his trial counsel was ineffective because he failed to request this lesser included offense

                                                -2-
instruction and approved the instructions as given. Based on these instructions, the jury
acquitted defendant of premeditated murder and convicted him of the lesser included second-
degree murder charge, as well as felony murder and torture.

                 A party must object or request a given jury instruction to preserve the
         error for review. Absent an objection or request for an instruction, this Court will
         grant relief only when necessary to avoid manifest injustice. Where counsel
         expresses satisfaction with the jury instructions, however, any claim of error is
         deemed waived, leaving nothing for this Court's review. [People v Galloway, 307
         Mich App 151, 157; ___ NW2d ___ (2014) (quotation marks and citations
         omitted.]

Defendant also failed to preserve his challenge to counsel’s performance by requesting a new
trial or a Ginther2 hearing. Our review is therefore limited to errors apparent on the record. Id.

                 “ ‘[T]he right to counsel is the right to the effective assistance of
         counsel.’” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d
         657 (1984), quoting McMann v Richardson, 397 US 759, 771 n 14; 90 S Ct 1441;
         25 L Ed 2d 763 (1970). An ineffective assistance claim includes two
         components: “First, the defendant must show that counsel’s performance was
         deficient. . . . Second, the defendant must show that the deficient performance
         prejudiced the defense.” Strickland v Washington, 466 US 668, 687; 104 S Ct
         2052; 80 L Ed 2d 674 (1984). To establish the deficiency component, a defendant
         must show that counsel’s performance fell below “an objective standard of
         reasonableness” under “prevailing professional norms.” People v Solmonson, 261
         Mich App 657, 663; 683 NW2d 761 (2004). With respect to the prejudice aspect,
         the defendant must demonstrate a reasonable probability that but for counsel’s
         errors, the result of the proceedings would have differed. Id. at 663-664. The
         defendant also must overcome the strong presumptions that his “counsel’s
         conduct [fell] within the wide range of reasonable professional assistance,” and
         that counsel’s actions were sound trial strategy. Strickland, 466 US at 689.
         [Galloway, 307 Mich App at 157-158.]

        Defendant correctly notes that second-degree murder is a necessarily included lesser
offense of felony murder. People v Clark, 274 Mich App 248, 257; 732 NW2d 605 (2007),
quoting People v Carter, 395 Mich 434, 437-438; 236 NW2d 500 (1975). This does not mean
that defendant was automatically entitled to a second-degree murder instruction. “ ‘[A] requested
instruction on a necessarily included lesser offense is proper if the charged greater offense
requires the jury to find a disputed factual element that is not part of the lesser included offense
and a rational view of the evidence would support it.’ ” People v Smith, 478 Mich 64, 69; 731
NW2d 411 (2007) (alteration in original), quoting People v Cornell, 466 Mich 335, 357; 711
NW2d 83 (2006). A defendant is entitled to a retrial before a properly instructed jury if “the
evidence presented at trial ‘clearly’ supported the lesser included instruction.” People v Silver,


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


                                                 -3-
466 Mich 386, 388; 646 NW2d 150 (2002). “A[n] offense is ‘clearly’ supported when there is
substantial evidence to support the requested lesser instruction.” Id. at 388 n 2.

        A “rational view of the evidence” did not support the reading of a second-degree murder
instruction as an alternative lesser offense to felony murder. The elements of second-degree
murder are: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without
justification or excuse.” People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014)
(citations and quotation marks omitted). “Malice is defined as the intent to kill, the intent to
cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”
People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). The malice necessary to establish
a second-degree murder charge is substantively identical to that required for a felony-murder
conviction. See People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330 (2009). The only
difference between the two offenses in this case would have been that felony murder required a
determination that defendant committed torture—the underlying offense.

        The existence of substantial evidence of torture rendered a lesser second-degree murder
instruction insupportable. The torture charge underlying defendant’s felony-murder offense is
defined in MCL 750.85 as follows:

       (1) A person who, with the intent to cause cruel or extreme physical or mental
       pain and suffering, inflicts great bodily injury or severe mental pain or suffering
       upon another person within his or her custody or physical control commits torture
       and is guilty of a felony punishable by imprisonment for life or any term of years.

       (2) As used in this section:

          (a) “Cruel” means brutal, inhuman, sadistic, or that which torments.

          (b) “Custody or physical control” means the forcible restriction of a person’s
       movements or forcible confinement of the person so as to interfere with that
       person’s liberty, without that person's consent or without lawful authority.

          (c) “Great bodily injury” means either of the following:

            (i) Serious impairment of a body function as that term is defined in . . . MCL
       257.58c.

             (ii) One or more of the following conditions: internal injury, poisoning,
       serious burns or scalding, severe cuts, or multiple puncture wounds.

          (d) “Severe mental pain or suffering” means a mental injury that results in a
       substantial alteration of mental functioning that is manifested in a visibly
       demonstrable manner caused by or resulting from any of the following:

             (i) The intentional infliction or threatened infliction of great bodily injury.

                                                ***

                                                 -4-
             (iii) The threat of imminent death.

             (iv) The threat that another person will imminently be subjected to death,
       [or] great bodily injury. . . .

       (3) Proof that a victim suffered pain is not an element of the crime under this
       section . . . .

         Hightower’s attack lasted 45 minutes. During this time, her assailant kicked and slapped
her and slammed her against walls. Hightower attempted to escape as evidenced by the presence
of blood in multiple rooms of the apartment and the noises heard by the upstairs neighbors. Her
attacker would not allow her to escape, however. Hightower was heard screaming in pain and
fright, and even begging the perpetrator to take her life rather than continue with his sadistic acts.
Ultimately, the killer likely used one of Hightower’s own kitchen knives to repeatedly stab her.
She bore defensive wounds from trying to stave off the approximately 50 nonfatal knife thrusts.
Unfortunately, the killer overcame his victim. Hightower was found face down with a dozen
fatal stab wounds to the back of her head and neck.

        It is possible from the evidence that the jury could have concluded that defendant did not
plan his attack ahead of time, thereby supporting a second-degree murder instruction as an
alternate to the premeditated murder count. The same cannot be said with the second count.
Substantial evidence of torture placed this offense clearly in the realm of felony murder, negating
any right to a lesser offense instruction to this charge. Defense counsel cannot be deemed
ineffective for “[f]ailing to advance a meritless argument or a futile objection.” People v
Erickson, 288 Mich App 192, 201; 793 NW2d 120 (2010). And absence of this instruction
would not have merited a retrial. Accordingly, we discern no error in counsel’s conduct.3

                                      III. INVESTIGATION

        In a pro se brief filed pursuant to Admin Order 2004-6 Standard 4, defendant contends
that defense counsel was ineffective for failing to “adequately investigate the primary defense
theory—that [defendant] was not the perpetrator.” In defendant’s estimation, trial counsel failed
to effectively capitalize on the absence of defendant’s DNA on the bloody socks found in his
pocket and on the knife found by the victim’s body and thereby doomed his chosen defense
theory. Defendant further contends that counsel should have selected an altogether different
strategy: proving that defendant was not the perpetrator based on the upstairs neighbors’ inability
to identify him. Defendant also challenges defense counsel’s failure to adequately contest the
sole black and white photograph of the sunglasses found inside Hightower’s apartment and the
fact that the evidence technicians did not record the location of the glasses on apartment
diagrams.




3
 Moreover, requesting a lesser included offense instruction would have been inconsistent with
defense counsel’s trial strategy to create a reasonable doubt that defendant was the murderer.


                                                   -5-
       The specter of trial strategy cannot insulate all decisions made by trial counsel.

       [A] court must determine whether the strategic choices were made after less than
       complete investigation, and any choice is reasonable precisely to the extent that
       reasonable professional judgments support the limitations on investigation.
       Counsel always retains the duty to make reasonable investigations or to make a
       reasonable decision that makes particular investigations unnecessary. [People v
       Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012) (quotation marks and
       citations omitted).]

        There is no record indication that defense counsel’s investigation was less than adequate.
Counsel supported his theory that defendant was not the perpetrator. For example, defense
counsel called defendant’s sister as a trial witness. She testified that she took a photograph a few
days after defendant’s preliminary examination depicting a white truck with a yellow ladder that
was parked within 50 feet of Hightower’s apartment building. Defense counsel also called
Michael Russell as a witness, who testified that defendant received a cut on his hand from
cutting down trees the day before the incident, not from any attack on the victim.

        Counsel highlighted what he perceived as a lack of damning DNA evidence. Counsel
cross-examined a prosecution witness regarding the absence of defendant’s DNA on a piece of
metal taken from the scene and in the scrapings from underneath Hightower’s fingernails.
Defense counsel also questioned the witness regarding the lack of Hightower’s blood on the
clothing defendant had worn the night before. In relation to the sunglasses, counsel interrogated
another witness about the photograph and the failure to accurately diagram their location. In any
event, the record reveals that the sunglasses were listed in the evidence technician’s initial report,
undermining defendant’s suggestion that the police manufactured this evidence. He further
elicited testimony from the witness regarding the improper handling of the bloody socks.
Defense counsel, therefore, attempted to undermine the prosecution’s argument that defendant
was the perpetrator of the crime by questioning the prosecution’s witnesses and calling witnesses
who offered alternative explanations for the prosecutor’s evidence. Counsel then tied the theory
together during closing argument. That counsel’s chosen strategy was unsuccessful does not
render his performance constitutionally defective. Kimmelman v Morrison, 477 US 365, 386;
106 S Ct 2574; 91 L Ed 2d 305 (1986).4

                             IV. PROSECUTORIAL MISCONDUCT

       In his pro se brief, defendant also challenges several comments made by the prosecutor in
closing argument. Defendant failed to preserve any of these challenges by raising a
contemporaneous objection in the trial court. See People v Brown, 294 Mich App 377, 382; 811
NW2d 531 (2011). Our review is therefore limited to plain error affecting defendant’s
substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). A


4
 We acknowledge that defense counsel did not emphasize in closing argument that the upstairs
neighbors only saw the perpetrator from the waist down and therefore could not identify
defendant. The evidence was before the jury, and the failure to revisit it in closing was not fatal.


                                                 -6-
prosecutor engages in misconduct if he or she denies the defendant a fair and impartial trial. Id.
“Issues of prosecutorial misconduct are decided case by case, and this Court must examine the
entire record and evaluate a prosecutor’s remarks in context.” Id. (quotation marks and citation
omitted).

        Defendant first contends that the prosecutor shifted the burden of proof. In relation to
this argument, defendant includes a block quote (with quotation marks on either end) with
several transcript page citations. This language is not actually a quotation, however. Rather, it is
defendant’s summary or paraphrase of several lines in the prosecutor’s closing argument which
he is challenging. A prosecutor may not make a statement that shifts the burden of proof onto
the defendant. People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010).

       During his closing argument, the prosecutor stated:

                [DM] said, I saw a male leaving. He had on bluejeans. He had on a
       bluejean jacket and he had a white shirt that hung down longer than the jacket and
       he says -- there’s some discrepancy about the shoes. He says he didn’t really see
       his shoes, but then he says -- [defendant’s attorney] pointed out that he previously
       testified that he saw dark boots and he sees this man leave and he goes down to
       the end of his hall and he sees the white van leaving the apartment area.

The prosecutor added, “[DM] did say dark boots cause [defendant’s attorney] pointed out, you
said dark boots, and he said, if I said it, I said it.” The prosecutor then noted that when defendant
was taken into custody, he was wearing brown boots. He contended that the boots were “just
like [DM] said he saw him leaving her house in, brown boots.” The prosecutor cited evidence
that defendant had several pairs of brown boots in his closet, making it more probable that he had
a pair of brown boots in his van on the night of the incident.

        These comments did not shift the burden of proof. Rather, they represent reasonable
inferences stemming from the evidence presented at trial. See People v Dobek, 274 Mich App
58, 66; 732 NW2d 546 (2007). DM testified during cross-examination that he could not then
recall whether the man who exited the apartment was wearing brown boots, but avowed that if he
had previously made that statement to the police, it was likely true. After further questioning by
defense counsel, DM stated, “Man, the dude, man, he had boots on, all right.” Evidence
established that defendant was wearing tan work boots when he was arrested and that at least
three other pairs were found in his closet.

       Defendant challenges the prosecutor’s commentary regarding the cut on his finger. The
prosecutor asserted, “I submit to you that those cuts on [defendant’s] hands are not from a rope.
They are not from a rope and they are not to the palms. They’re just nicks on his fingers.” The
prosecutor later reiterated that the rope that defendant used to bring down a tree while at work
the day before the incident did not cause the cuts on defendant’s hands. According to witnesses,
defendant did not bear any injuries at the party. Thus, these statements were also reasonable
inferences stemming from the witness testimony.

       The prosecutor averred that the investigating officers had collected a “laundry list” of
evidence, but noted that he would only discuss a few items during closing argument. This

                                                -7-
statement did not improperly shift the burden of proof. The prosecutor reiterated that the jury
had heard the evidence in this case, but he limited his discussion to the evidence he deemed most
relevant.

         Finally, the prosecutor’s statement that “Miss Hightower faced -- what she told you that
night, she faced the devil and the evidence shows that the devil -- that devil sits right here and
it’s Jason Peck” also constituted a reasonable inference from the facts presented at trial. SM
testified that she heard Hightower call the man in the apartment the devil. The prosecutor’s
statement reiterated his position that defendant was the man that attacked Hightower in her
apartment. The prosecutor was not required to argue his position in the blandest possible terms.
See Dobek, 274 Mich App at 66. Therefore, the statement constituted a reasonable inference
from the testimony presented at trial.

       Defendant also challenges defense counsel’s failure to object to the subject comments.
As the prosecutor did not cross the line into impropriety, any objection would have been futile.
Therefore, counsel cannot be deemed ineffective in this regard. See Ericksen, 288 Mich App at
201

       We affirm.

                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




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