                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

v                                                                  No. 323201
                                                                   Oakland Circuit Court
MICHAEL ANTHONY TERRELL, JR.,                                      LC No. 2013-248508-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

       A jury convicted defendant of two counts of assault with intent to do great bodily harm
less than murder, MCL 750.84,1 and two counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to
two concurrent prison terms of 80 months to 10 years each for the assault convictions, to be
served consecutively to two concurrent two-year terms of imprisonment for the felony-firearm
convictions. Defendant appeals as of right. We affirm.

      Defendant’s convictions arise from shootings that occurred at the Town Liquor store in
Royal Oak Township early on June 9, 2013.

                                 I. POST-ARREST SILENCE

        Defendant first argues that the prosecutor improperly questioned him about his silence
after the police arrested him, thereby denying him a fair trial. Defendant concedes that there was
no objection to the prosecutor’s questioning or conduct at trial. Therefore, this Court reviews
this issue for plain error affecting defendant’s substantial rights. People v McNally, 470 Mich 1,
5; 679 NW2d 301 (2004). This standard requires that defendant bear the burden of persuasion
“that the prosecutor’s questions affected the outcome of the lower court proceedings.” Id. at 6.




1
 The jury acquitted defendant of original charges of assault with the intent to commit murder,
MCL 750.83.


                                               -1-
       In People v Clary, 494 Mich 260, 264-266; 833 NW2d 308 (2013), our Supreme Court
summarized as follows the legal principles governing a defendant’s invocation of his right to
remain silent:

                The Fifth Amendment of the United States Constitution provides that
       “[n]o person shall . . . be compelled in any criminal case to be a witness against
       himself . . . .” US Const, Am V. See also Const 1963, art 1, § 17. The Fifth
       Amendment has been made applicable to the states through the Due Process
       Clause of the Fourteenth Amendment. Pursuant to Miranda v Arizona, 384 US at
       444, in order to protect the privilege against compelled self-incrimination during
       custodial police interrogations, the suspect “must be warned that he has a right to
       remain silent (and) that any statement he does make may be used as evidence
       against him . . . .” The United States Supreme Court has held that “the Fifth
       Amendment, in its direct application to the Federal Government, and in its
       bearing on the States by reason of the Fourteenth Amendment, forbids either
       comment by the prosecution on the accused’s silence (at trial) or instructions by
       the court that such silence is evidence of guilt.” [Citation omitted.] That is, the
       Fifth Amendment prohibits using a defendant’s failure to take the stand as
       substantive evidence of guilt. The Court has also held that “(w)hen a person
       under arrest is informed, as Miranda requires, that he may remain silent, (and)
       that anything he says may be used against him,” “it would be fundamentally
       unfair and a deprivation of due process to allow the arrested person’s silence (at
       the time of his arrest) to be used to impeach an explanation subsequently offered
       at trial.” Doyle v Ohio, 426 US 610, 618–619; 96 S Ct 2240; 49 L Ed 2d 91
       (1976) [internal quotation and citation omitted]; see also People v Borgne, 483
       Mich 178, 186–188; 768 NW2d 290 (2009), aff’d on reh 485 Mich 868
       (2009). . . .

                                              ***

               However, the United States Supreme Court has also held that “the use of
       prearrest silence to impeach a defendant’s credibility violates (n)either the Fifth
       (n)or the Fourteenth Amendment to the Constitution.” [Citation omitted]; see also
       People v Cetlinski (After Remand), 435 Mich 742, 757; 460 NW2d 534 (1990)
       (“(N)either the Fifth Amendment nor the Michigan Constitution preclude(s) the
       use of prearrest silence for impeachment purposes.”). Moreover, it has also held
       that “(i)n the absence of the sort of affirmative assurances embodied in the
       Miranda warnings, we do not believe that it violates due process of law for a State
       to permit cross-examination as to postarrest silence when a defendant chooses to
       take the stand.” . . . [Citation omitted; emphasis added.]

See also People v McGhee, 268 Mich App 600, 634; 709 NW2d 595 (2005) (observing that a
prosecutor may comment on a defendant’s “silence before custodial interrogation and before
Miranda warnings have been given”), and People v Schollaert, 194 Mich App 158, 166-167; 486
NW2d 312 (1992) (holding that because the defendant’s silence “did not occur during a custodial
interrogation situation, []or . . . in reliance on the Miranda warnings,” it had no constitutional
protection under the Fifth and Fourteenth Amendments of the Michigan Constitution).

                                               -2-
        Defendant conceded that between June 9, 2013, and his arrest in October 2013, he knew
that police officers were looking for him, but he made no effort to speak with the police before
his arrest. Defendant testified that he had planned to talk to the police and give them the same
account of the shooting he offered at trial, but instead opted to “spend[] as much time as” he
could with his child, and waited for the police to find and arrest him. It was not improper for the
prosecutor to question defendant about his prearrest and pre-Miranda silence because these
questions did not inquire whether, or elicit that, defendant had remained silent in the face of any
custodial accusation by a government official.2 Schollaert, 194 Mich App at 166-167.
Furthermore, the prosecutor did not reference in either his closing or rebuttal arguments
defendant’s opportunity to tell the police his version of events.

        Plaintiff agrees that the trial prosecutor subsequently “questioned defendant about his
post-arrest, post-Miranda silence.” The prosecutor specifically referenced defendant’s post-
arrest and post-Miranda silence only once, during the following cross-examination:

                Q. The night you get arrested . . . .

                                                ***

              . . . Detective Sergeant Rebecca McArthur . . . advises you of your right to
       remain silent, right to have a lawyer present, and right to refuse to answer
       questions; and you decide to assert your rights and not answer questions.
       Correct?

                A. I told them I would cooperate with them if I had a lawyer.

                                                ***

                Q. And at some point you get a lawyer. . . . They’re representing you.
       Right?

                A. Yes.

               Q. And even then you didn’t tell the story until just this morning; isn’t
       that correct?

                A. No. . . . I told him the truth. He told me—

                Q. No. The police, I’m talking about. . . .

                A. Nobody’s coming asking—



2
  The prosecutor inquired of defendant concerning his neglect to contact police officers before
his arrest, and defendant’s pretrial revelation of his version of events only to several relatives,
including his father, multiple sisters, and uncles.


                                                  -3-
                                                ***

              Q. . . . [Y]ou talked to your lawyers. It’s the police I’m talking about and
       your opportun—

               A. The police never questioned me—

                                                ***

               Q. My question is, [y]ou had an opportunity to talk to the police, you said
       you wanted a lawyer; and after getting a lawyer, you never went to talk to the
       police. Right?

               A. The police never came to talk to me. No. No. [Emphasis added.]

Plaintiff contends that “[b]ecause defendant opened the door to the questions about his post-
arrest, post-Miranda silence [by interjecting his desire to have an attorney present], this case falls
within the exception permitting impeachment of a defendant’s version of his postarrest
behavior.” The prosecutor cites People v Allen, 201 Mich App 98, 103; 505 NW2d 869 (1993),
in support of this argument.

        In Borgne, 483 Mich at 193-196, our Supreme Court recently mentioned, but did not
specifically address, the validity of the exception in Allen, 201 Mich App at 103, that plaintiff
invokes in this case, stating:

               We conclude that the [Doyle] exception was not triggered by this
       exchange because defendant never testified that he made post-Miranda attempts
       to explain his story. Defendant’s only testimony regarding an attempt to explain
       his story was related to his pre-Miranda conduct (when he was being escorted to
       the police car). If the prosecutor had wanted to impeach defendant regarding this
       pre-Miranda silence, Doyle would have presented no prohibition. But, for
       whatever reason, the prosecutor chose not to so impeach defendant. Instead, the
       prosecutor repeatedly asked defendant why he did not explain his side of the story
       after being taken to the precinct and after being given Miranda warnings. The
       prosecutor also repeatedly made defendant admit that he remained silent during
       that time. Finally, the prosecutor used this silence in his closing argument to
       bolster the contention that defendant’s exculpatory story was not credible. None
       of these uses of defendant’s post-arrest, post-Miranda silence is supported by
       defendant’s testimony regarding his post-arrest, post-Miranda actions. In sum,
       the defendant did not open the door to the impeachment exception with his
       fleeting reference to his failed attempt to tell his story before Doyle was even
       applicable. [Emphasis added.]

               To counter this conclusion, the prosecution relies on [Allen, 201 Mich App
       at 98]. In Allen, the Court stated:

              “[D]efendant did not claim to have told the police the same version of his
       exculpatory story upon arrest. Rather, his claim on redirect examination was that

                                                 -4-
       the trial was his first opportunity to tell his version of the events. We believe that
       this case falls within the exception permitting impeachment of a defendant’s
       version of his postarrest behavior. Although defendant’s testimony would not
       have permitted the prosecutor to argue that his postarrest silence was inconsistent
       with his claim of innocence, it did permit the prosecutor to attempt to discredit
       defendant’s testimony by showing that defendant did have an opportunity before
       the trial to tell his side of the story. Having raised the issue of his opportunity to
       explain his version of the events, he opened the door to a full and not just a
       selective development of that subject. [Id. at 103 (citations and quotation marks
       omitted).]”

       Thus, Allen extended Doyle’s impeachment exception to include not only
       instances when a defendant is allegedly lying about his post-arrest behavior, but
       when a defendant is falsely asserting that the trial presented his first opportunity
       to tell his side of the case.

               We do not reach the merits of this extension because the prosecution
       would not benefit from it in this case. Defendant was arrested in the abandoned
       building and immediately escorted to a police car. At trial, during direct
       examination, defendant testified that he unsuccessfully tried to tell his side of the
       story as he was being escorted to the police car. It was not until he reached the
       police station that he was given Miranda warnings and was interrogated. At that
       point he invoked his right to silence and, after obtaining counsel, decided to
       remain silent until trial. Even under Allen’s extension of the [Doyle] exception,
       the prosecution would be incorrect in arguing that defendant opened the door to
       the impeachment exception by claiming to have tried to tell his story to the
       arresting officers because there was no door to open at that point—Doyle was not
       even applicable at that time. Indeed, defendant had only been arrested; he had not
       been given Miranda warnings. Under United States Supreme Court precedent,
       the prosecutor was free to impeach defendant on his silence before Doyle applied,
       and could have asked why defendant did not tell his side of the story after being
       put into the police car. . . . But all the prosecutor’s impeachment tactics here
       related to defendant’s silence after he was brought to the precinct and given
       Miranda warnings.

               Accordingly, we hold that the impeachment exception did not apply in this
       case, and, as noted, the general rule in Doyle was violated by the prosecution’s
       use of defendant’s post-arrest, post-Miranda silence. [Emphasis added.]

       However, plaintiff incorrectly invokes Allen. The analysis in Borgne, 483 Mich at 193-
196, applies in this case because, although the prosecutor asked defendant an improper question
about his post-arrest, post-Miranda silence, defendant did not then “open the door to the
impeachment exception with his fleeting reference to his failed attempt to tell his story.”
(Emphasis added.)

        To the extent that the prosecutor plainly erred in questioning defendant concerning his
post-arrest, post-Miranda silence, defendant has not satisfied his burden of establishing that the

                                                -5-
error prejudiced his substantial rights. Borgne, 483 Mich at 196-197. The prosecutor
specifically asked only one question about defendant’s post-arrest, post-Miranda silence, and the
prosecutor never referenced the post-arrest, post-Miranda silence during his closing or rebuttal
arguments. Id. at 197-198. Thus, the prosecutor did not emphasize that defendant’s silence
signaled his guilt, or “obviate[d] the prosecutor’s need to independently prove that defendant
committed the crime.” Id. at 197-199. The prosecutor also “only referred to defendant’s silence
under the mistaken belief that defendant had raised the subject in his . . . mention of” why he had
not tried to tell the police his exculpatory story. Id. at 198. Lastly, the prosecutor introduced
ample, “largely consistent, untainted evidence to prove . . . defendant’s guilt.” Id. at 199. Most
significantly, Kymtara Stewart testified to the details of the assault both from memory and while
viewing a store surveillance video depicting the shooting, the prosecutor admitted a copy of the
surveillance video, defendant acknowledged at trial that he fired his gun at Jarrell Bennett, and
defendant conceded that he had fired gunshots toward Jamell Bennett. Accordingly, defendant is
not entitled to appellate relief.

                                 II. EVIDENCE OF THREATS

       Defendant next argues that the trial court erred in allowing evidence of threats against a
prosecution witness, Stewart, where the record was devoid of any evidence linking the threats to
defendant. Defendant also argues that the admission of threats by unidentified out-of-court
declarants violated his right of confrontation. Defendant did not object at trial to Stewart’s
testimony about the threats, rendering this issue unpreserved.

       In a related assertion, defendant avers that the trial court erred by failing to offer an
appropriate jury instruction regarding this evidence. However, the record discloses that the trial
court and defendant agreed that defense counsel would draft a proposed cautionary instruction
regarding the threats, and that defense counsel later affirmed the jury instructions without the
proposed cautionary instruction. Therefore, defendant waived his cautionary instruction request.
People v Kowalski, 489 Mich 488, 503-504; 803 NW2d 200 (2011).

       We have carefully examined the record of the prosecutor’s questions to Stewart, which
consisted of proper, nonspecific inquiries about whether Stewart heard any threats before her
testimony, and if Stewart felt any fear in light of the threats. The prosecutor had a good-faith
basis for asking Stewart if she had received any threats relating to her testimony. People v
Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). Stewart mentioned having heard threats
before her testimony at both the preliminary examination and trial. Stewart also was the sole
eyewitness, among a group of many acquaintances around the store early on June 9, 2013, to
appear and positively identify defendant as a shooter in court. And Stewart confirmed in a
nonspecific fashion that she had heard threats toward her or her child if she testified.

        Michigan law recognizes the prerogative of a jury to assess the credibility of the trial
witnesses. M Crim JI 3.6(1); see also People v Coleman, 210 Mich App 1, 8; 532 NW2d 885
(1995) (observing that “[t]he credibility of a witness is always an appropriate subject for the
jury’s consideration”). M Crim JI 3.6(3)(f) expressly provides that jurors can think about several
questions, including whether any “promises, threats, suggestions, or other influences . . . affected
how the witness testified.” The use note applicable to M Crim JI 3.6 states in relevant part as
follows: “This instruction should be given in every case.” In this case, the evidence of threats

                                                -6-
toward Stewart for testifying possessed logical relevance toward proving a factor pertinent to her
credibility, a matter of consequence at trial. MRE 401; Coleman, 210 Mich App at 8
(emphasizing that “[e]vidence of a witness’ bias or interest in a case is highly relevant to
credibility”). Although evidence linking a threat to the defendant is generally necessary where
the evidence is offered to show a defendant’s consciousness of guilt, People v Walker, 150 Mich
App 597, 603; 389 NW2d 704 (1985); People v Lytal, 119 Mich App 562, 576-577; 326 NW2d
559 (1982), the evidence was not offered for that purpose. Moreover, defense counsel elicited
from Stewart that no threats had arisen from defendant or any of his family members.
Accordingly, defendant has not established that admission of this evidence constituted plain
error.

         Further, because the prosecutor offered the questioning of Stewart regarding threats to
illustrate the effect of the threats on her, not for the purpose of establishing the truth of any
threatened conduct, no violation of the hearsay rule, MRE 801, or defendant’s right of
confrontation occurred. People v Chambers, 277 Mich App 1, 10-11; 742 NW2d 610 (2007).

                               III. UNANIMITY INSTRUCTION

        Defendant also challenges the trial court’s failure to give a specific unanimity instruction
regarding the charge of assault with intent to murder Jamell Bennett or Stewart. Because
defendant did not request a specific unanimity instruction and affirmatively approved the final
instructions given by the trial court, this issue may be deemed waived. Kowalski, 489 Mich at
503-504. But even if the issue was not waived, and it is reviewed under the plain error standard
applicable to unpreserved claims of error, id. at 505, appellate relief is not warranted.

        “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000) (internal
quotation and citation omitted). This Court reviews jury instructions as a whole to determine
whether error requiring reversal occurred. People v Bartlett, 231 Mich App 139, 143; 585
NW2d 341 (1998). Even when somewhat imperfect, jury instructions do not qualify as
erroneous provided that they fairly present to the jury the issues to be tried and sufficiently
protect the defendant’s rights. People v Knapp, 244 Mich App 361, 376; 624 NW2d 227 (2001);
Bartlett, 231 Mich App at 143.

       To safeguard a criminal “defendant’s right to a unanimous verdict,” the trial court must
“properly instruct the jury regarding the unanimity requirement.” People v Cooks, 446 Mich
503, 511; 521 NW2d 275 (1994). The Michigan Supreme Court in Cooks explained, in relevant
part:

       [A] specific unanimity instruction is not required in all cases in which more than
       one act is presented as evidence of the actus reus of a single criminal offense.
       The critical inquiry is whether either party has presented evidence that materially
       distinguishes any of the alleged multiple acts from the others. In other words,
       where materially identical evidence is presented with respect to each act, and
       there is no juror confusion, a general unanimity instruction will suffice. [Id. at
       512-513 (emphasis in original).]


                                                -7-
The Supreme Court held in Cooks:

       [I]f alternative acts allegedly committed by defendant are presented by the state as
       evidence of the actus reus element of the charged offense, a general instruction to
       the jury that its decision must be unanimous will be adequate unless 1) the
       alternative acts are materially distinct (where the acts themselves are conceptually
       distinct or where either party has offered materially distinct proofs regarding one
       of the alternatives), or 2) there is reason to believe the jurors might be confused or
       disagree about the factual basis of defendant’s guilt. [Id. at 524.]

        Defendant contests the trial court’s reading of a general unanimity instruction. He
specifically argues about the second assault count on which he stood trial alleged that he had
assaulted “Kymtara Stewart and/or” Jamell Bennett with the intent to commit murder. The jury
convicted defendant of the lesser offense of assaulting Stewart “and/or” Jamell Bennett with the
intent to inflict great bodily harm. A conviction of assault with the intent to do great bodily harm
requires proof of “(1) an attempt or threat with force or violence to do corporal harm to another
(an assault), and (2) an intent to do great bodily harm less than murder.” People v Brown, 267
Mich App 141, 147; 703 NW2d 230 (2005) (emphasis, internal quotation, and citation omitted).

       The prosecutor presented testimony by Stewart that seconds after defendant shot Jarrell
Bennett, defendant turned toward her and fired multiple gunshots in her direction. After
watching the store surveillance video, Stewart clarified her belief that defendant had fired
gunshots at either her or Jamell Bennett. The surveillance video also depicts that immediately
after defendant shot Jarrell Bennett, he fired the same handgun toward Stewart and Jamell
Bennett. Defendant did not dispute that he fired two shots at Jamell Bennett. He insisted only
that he did so in self-defense, and denied not seeing Stewart in the vicinity when he fired at
Jamell Bennett.

        We conclude that the general unanimity instruction given here sufficiently protected
defendant because the prosecutor based count 3 on identical acts, defendant’s firing of gunshots
toward alternative victims Stewart and Jamell Bennett, who stood in the same vicinity. Cooks,
446 Mich at 524. Nothing in the record materially distinguishes the alternative acts forming the
basis of count 3, or defendant’s defense concerning count 3. Id. And the record otherwise gives
rise to no “reason to believe the jurors might be confused or disagree about the factual basis of
defendant’s guilt.” Id.

       We further conclude that because the general unanimity instruction sufficiently protected
defendant’s right to a fair trial in light of the evidence and defenses presented, defense counsel
was not ineffective for failing to request a unanimity instruction. People v Solmonson, 261 Mich
App 657, 663-664; 683 NW2d 761 (2004); People v Snider, 239 Mich App 393, 425; 608 NW2d
502 (2000).

                    IV. DEFENSES OF ACCIDENT AND SELF-DEFENSE

        Defendant additionally argues that the trial court erred by failing to instruct the jury on
the affirmative defenses of accident and self-defense. Defense counsel’s affirmative approval of
the court’s jury instructions waived any substantive claim of instructional error. Kowalski, 489

                                                -8-
Mich at 505. However, defendant also argues that defense counsel was ineffective for failing to
request instructions on these defenses. Specifically, defendant argues that in light of his
testimony that Jarrell Bennett grabbed his arm and caused the handgun to discharge accidentally,
defense counsel was ineffective for failing to request a jury instruction regarding the defense of
accident. And given defendant’s testimony that he fired at Jamell Bennett only after Jamell
Bennett had started firing gunshots at him, defendant maintains that defense counsel was
ineffective for neglecting to request a self-defense jury instruction. Because defendant did not
raise an ineffective assistance claim in the trial court, our review of this issue is limited “to
mistakes apparent on the existing record.” People v Riley (After Remand), 468 Mich 135, 139;
659 NW2d 611 (2003). A convicted defendant’s claim of ineffective assistance of counsel
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 first component, the defendant must show that counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms. Solmonson, 261
Mich App at 663. To establish prejudice, 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.

        M Crim JI 7.03a recognizes that the affirmative defense of accident applies to a charge of
assault with intent to do great bodily harm. In People v Hess, 214 Mich App 33, 37; 543 NW2d
332 (1995), this Court explained the concept of an accident that may preclude a defendant’s
conviction of a specific intent crime:

              Contrary to the court’s final instruction regarding the issue, the defense of
       accident is a defense to a charge of voluntary manslaughter. . . .

               “Accident” has been judicially defined as

       a fortuitous circumstance, event or happening; an event happening without any
       human agency, or if happening wholly or partly through human agency, an event
       which under the circumstances is unusual and unexpected by the person to whom
       it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event,
       happening or occurrence; an unusual or unexpected result attending the operation
       or performance of a usual or necessary act or event; chance or contingency;
       fortune; mishap; some sudden and unexpected event taking place without
       expectation, upon the instant, rather than something which continues, progresses
       or develops; something happening by chance; something unforeseen, unexpected,
       unusual, extraordinary or phenomenal, taking place not according to the usual
       course of things or events, out of the range of ordinary calculations; that which
       exists or occurs abnormally, or an uncommon occurrence.

               As is apparent from this definition, when some form of intentional act
       must be established as an element of the crime, the occurrence of the crime is
       inconsistent with accident. [Internal quotation and citation omitted; emphasis
       added.]


                                                -9-
        We conclude that the record does not reasonably demonstrate that defendant’s shooting
of Jarrell Bennett came within any of the definitions of an accident. Defendant repeatedly
admitted that shortly before the shooting, he became angry at Jarrell Bennett inside the store
because Bennett repeatedly blew cigarette smoke in his face, and on leaving the store defendant
immediately approached Bennett and struck him with the butt of defendant’s .45-caliber
handgun. Defendant testified that the gun accidently discharged into Jarrell Bennett’s chest after
Bennett grabbed defendant’s arm while moving the gun away from defendant’s head. Defendant
acknowledged that the gun had fired into Jarrell Bennett’s chest because defendant was then
pointing the gun at Bennett and defendant’s hand was on the trigger. Defendant denied that the
gun had a defect. Irrespective of defendant’s characterization of the shooting as accidental, the
record does not substantiate that the shooting constituted “a fortuitous circumstance, event or
happening;” “an event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual and unexpected by
the person to whom it happens;” “an unusual, fortuitous, unexpected, unforeseen or unlooked for
event, happening or occurrence;” or any other recognized definition of an accident. Hess, 214
Mich App at 37. It follows, therefore, that defense counsel was not ineffective for failing to
make a meritless request for an accident instruction. Snider, 239 Mich App at 425.

        We also conclude that the record does not give rise to a reasonable inference that
defendant shot at Jamell Bennett in self-defense. In People v Guajardo, 300 Mich App 26, 35;
832 NW2d 409 (2013), this Court summarized the following elements of the affirmative defense
of self-defense:

                Under the common law, the affirmative defense of self-defense justified
       the killing of another person if the defendant honestly and reasonably believes his
       life is in imminent danger or that there is a threat of serious bodily harm and that
       it is necessary to exercise deadly force to prevent such harm to himself. In
       general, a defendant does not act in justifiable self-defense when he or she uses
       excessive force or when the defendant is the initial aggressor. [Internal
       quotations and citations omitted, emphasis added.]

The Michigan Legislature in MCL 780.972(2) also adopted the following relevant affirmative
defense of self-defense:

               An individual who has not or is not engaged in the commission of a crime
       at the time he or she uses force other than deadly force may use force other than
       deadly force against another individual anywhere he or she has the legal right to
       be with no duty to retreat if he or she honestly and reasonably believes that the
       use of that force is necessary to defend himself or herself or another individual
       from the imminent unlawful use of force by another individual. [Emphasis
       added.]

        Neither common-law nor statutory self-defense applies in this case. The evidence agreed
that defendant acted as the initial aggressor in attacking and shooting Jarrell Bennett, without
adequate provocation, and then shooting Bennett. Stewart explained that Jamell Bennett had
started shooting at defendant immediately after defendant shot Jamell Bennett’s brother, Jarrell


                                              -10-
Bennett. Defense counsel was not ineffective for failing to make a meritless request for a self-
defense instruction. Snider, 239 Mich App at 425.

                                        V. SENTENCING

        Defendant lastly contests the sentences for his assault convictions. He first avers that the
trial court erred in departing from the sentencing guidelines range of 29 to 57 months on the
basis of evidence that the guidelines already considered, for neglecting to explain the extent of
the sentence departure, and sentencing him on the basis of its finding that the jury should have
convicted him of assault with intent to murder Jarrell Bennett. The record does not support these
claims. In a supplemental brief, defendant also avers that the trial court violated his right to a
jury trial when it improperly engaged in judicial fact-finding to score the relevant offense
variables (OVs).

        A “sentencing court may exercise its discretion to depart from . . . [a] guidelines range”
by imposing a reasonable departure. People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015)
(Docket No. 149073); slip op at 29. Appellate courts review for clear error “the reasons given
for a departure.” People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). Appellate courts
review for an abuse of discretion the reasonableness of a sentencing court’s grounds for
imposing a departure and the departure length. Lockridge, ___ Mich at ___; slip op at 29; Smith,
482 Mich at 300. A sentencing court “abuses its discretion if the” guidelines departure “imposed
falls outside the range of principled outcomes.” Id.

         In Lockridge, ___ Mich at ___; slip op at 1-2, the Michigan Supreme Court, relying on
Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), held Michigan’s
sentencing guidelines violative of a “defendant’s fundamental Sixth Amendment right to a jury
trial” to the extent that the guidelines “require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables (OVs) that mandatorily increase the
floor of the guidelines minimum sentence range, i.e., the ‘mandatory minimum sentence under
Alleyne,” 133 S Ct 2151 (emphasis in original). Our Supreme Court held, Lockridge, ___ Mich
at ___; slip op at 2, that to correct this unconstitutionality, it would amend some portions of
Michigan’s mandatory sentencing guidelines:

               To remedy the constitutional violation, we sever MCL 769.34(2) to the
       extent that it makes the sentencing guidelines range as scored on the basis of facts
       beyond those admitted by the defendant or found by the jury beyond a reasonable
       doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a
       sentencing court that departs from the applicable guidelines range must articulate
       a substantial and compelling reason for that departure.

               Consistently with the remedy imposed by the United States Supreme
       Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d
       621 (2005), we hold that a guidelines minimum sentence range calculated in
       violation of [Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d
       435 (2000),] and Alleyne is advisory only and that sentences that depart from that
       threshold are to be reviewed by appellate courts for reasonableness. Booker, 543
       US at 264. To preserve as much as possible the legislative intent in enacting the

                                               -11-
       guidelines, however, we hold that a sentencing court must determine the
       applicable guidelines range and take it into account when imposing a sentence.
       Id. [Emphasis added.]

        MCL 769.34(3)(a) grants trial courts discretion to depart from a guidelines range,
instructs trial courts to state “on the record the reasons for departure,” and cautions that the trial
court cannot use a defendant’s “gender, race, ethnicity, alienage, national origin, legal
occupation, lack of employment, representation by . . . counsel, appearance in propria persona, or
religion to depart from the appropriate sentence range.” Trial courts also cannot premise “a
departure on an offense characteristic or offender characteristic already taken into account in
determining the appropriate sentence range unless the court finds from the facts contained in the
court record that the characteristic” received “inadequate or disproportionate weight.” MCL
769.34(3)(b).

        We conclude that the trial court acted within its discretion in imposing a reasonable
upward departure. The trial court did not clearly err in any of its factual findings. Smith, 482
Mich at 300. The trial court also satisfied its responsibility to place on the record the grounds on
which it imposed an upward departure with its lengthy explanation from the bench at sentencing.
MCL 769.34(3). The court correctly observed that the guidelines did not adequately reflect the
circumstances of this case, namely, the evidence that defendant’s gunshot caused permanent
paralysis to Jarrell Bennett, a young man. The guidelines also did not consider the especially
senseless reason defendant offered for attacking Jarrell Bennett—that Bennett had blown
cigarette smoke into defendant’s face. In conclusion, the trial court acted within its discretion in
imposing a reasonable upward departure from the guidelines. Lockridge, ___ Mich at ___; slip
op at 29.

        Defendant also complains that the trial court’s “scoring of numerous offense variables
required it to find facts beyond those established by” the jury verdict. Defendant did not raise
this constitutional argument in the trial court. An unpreserved constitutional challenge to the
trial court’s judicial fact findings at sentencing is reviewed for plain error affecting the
defendant’s substantial rights. Lockridge, ___ Mich at ___; slip op at 30.

        Even assuming that some of the OVs were scored on the basis of facts not found by the
jury or admitted by defendant, because the trial court did not rely on the sentencing guidelines
range and instead departed from that range, defendant is not entitled to appellate relief. In
Lockridge, ___ Mich at ___; slip op at 31, our Supreme Court explained:

               Assuming arguendo that the facts necessary to score [the OVs challenged
       by the defendant] were not established by the jury’s verdict or admitted by the
       defendant, and yet those facts were used to increase the defendant’s mandatory
       minimum sentence, violating the Sixth Amendment, the defendant nevertheless is
       not entitled to resentencing. Because he received an upward departure sentence
       that did not rely on the minimum sentence range from the improperly scored
       guidelines (and indeed, the trial court necessarily had to state on the record its
       reasons for departing from that range), the defendant cannot show prejudice from
       any error in scoring the OVs in violation of Alleyne. [Emphasis in original.]


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Accordingly, because the trial court did not rely on the guidelines to impose defendant’s
sentences, and instead relied on factors not reflected in the guidelines, defendant cannot establish
that he was prejudiced by any judicial fact-finding to score the offense variables.

       Affirmed.



                                                             /s/ David H. Sawyer
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Karen M. Fort Hood




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