                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 10, 2016
               Plaintiff-Appellee,

v                                                                  No. 324615
                                                                   Wayne Circuit Court
ANDRE LARMAR HUNTER,                                               LC No. 09-022865-FC

               Defendant-Appellant.


Before: SAAD, P.J., and SAWYER and HOEKSTRA, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his convictions for first-degree
premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life
imprisonment without the possibility of parole for the first-degree murder conviction and to two
years’ imprisonment for the felony-firearm conviction. Because any error in the trial court’s jury
instructions was harmless, the evidence was sufficient to support defendant’s convictions, and
defendant was not denied the effective assistance of counsel, we affirm.

       In the early morning hours of January 25, 2009, David Hall, was shot to death outside the
Tippin Inn Lounge in Detroit. With Hall at the time of the shooting was his girlfriend, Patrice
Walker. At trial, Walker identified defendant as the shooter. In addition, the prosecution
presented the jury with video surveillance footage and still photographs of the suspected shooter,
which had been compiled by a police officer specializing in video forensics. These images
showed a man in a yellow hoodie and black jacket following Hall and Walker out of the bar,
toward Walker’s car. Additional witnesses, including defendant’s stepbrother, identified
defendant as the suspect in the photographs. Defendant testified in his own defense. Defendant
admitted that he was at the Tippin Inn Lounge on the night of the shooting, but he denied any
involvement with the crime. A jury convicted defendant of first-degree premeditated murder and




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felony-firearm.1 The trial court sentenced defendant as noted above. Defendant now appeals as
of right.

        On appeal, defendant first argues that the trial court abused its discretion when it omitted
paragraph (4) of M Crim JI 7.8 from the final jury instructions at trial. Defendant asserts that
this instruction applied because Walker provided police with descriptions of the shooter which
were inconsistent with defendant’s appearance. She also told a witness at the scene that she did
not see the shooter, and, when asked by police, Walker could not describe the suspect’s
complexion. Given that Walker’s identification testimony formed a central component of the
prosecution’s case, defendant maintains that the failure to read paragraph (4) requires reversal of
his convictions.

        Defendant objected to the omission of this instruction, thereby preserving his claim for
appellate review. People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19
(2000). We review de novo underlying legal questions pertaining to jury instruction issues, and
for an abuse of discretion the trial court’s determination regarding the applicability of a jury
instruction to the facts of the case. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).

        “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010) (citation omitted). A
trial court is required to instruct the jury on the law applicable to the case and to present the case
to the jury in a clear and understandable manner. People v Henry, 239 Mich App 140, 151; 607
NW2d 767 (1999). Jury instructions must include all elements of the charged crime as well as
all material issues, defenses, and theories if the evidence supports them. People v Wess, 235
Mich App 241, 243; 597 NW2d 215 (1999).

        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, an instruction is not grounds for setting aside a conviction if “the
instruction fairly presented the issues to be tried and adequately protected the defendant's rights.”
People v Kowalski, 489 Mich 488, 501-502; 803 NW2d 200 (2011). Moreover, “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.” People v McKinney,
258 Mich App 157, 163; 670 NW2d 254 (2003) (citation omitted). To make this determination,
we examine the nature of the instructional error in light of the weight and strength of the
untainted evidence, and reversal is only warranted if “it affirmatively appears more probable than
not that the error was outcome determinative.” Dupree, 486 Mich at 712. See also MCL 769.26.




1
  The jury trial in this case was defendant’s third trial. His first trial resulted in a mistrial.
Following defendant’s second trial, a jury convicted defendant of first-degree murder and felony-
firearm, but his convictions were reversed on appeal due to a finding of ineffective assistance of
counsel. People v Hunter, 493 Mich 1015; 829 NW2d 871 (2013); People v Hunter,
unpublished opinion of the Court of Appeals, issued September 12, 2013 (Docket No. 297542).


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         In this case, the trial judge’s final jury instructions on identification included paragraphs
(1), (2), (3), and (5) of M Crim JI 7.8. However, despite a request from defense counsel, the trial
court failed to read paragraph (4), which provides:

       [(4) You may also consider any times that the witness failed to identify the
       defendant, or made an identification or gave a description that did not agree with
       (his / her) identification of the defendant during trial.] [M Crim JI 7.08.]

The trial judge denied defense counsel’s request, explaining that he would have given that
instruction if there had been any evidence of “misidentification” presented during defendant’s
trial.

        The trial court was correct in its recognition that there was no evidence that a witness
misidentified another individual as the shooter or that a witness failed to identify defendant
when, for example, presented with a photo array or line-up. Nonetheless, we are persuaded that
paragraph (4), or at least a portion of this paragraph, was warranted in this case because there
was evidence that Walker “gave a description that did not agree with [her] identification of the
defendant during trial.” For example, when speaking with police, Walker described a shorter
individual than defendant. Walker also testified at trial that the shooter had been wearing a
yellow hoodie and black jacket like the individual shown in the surveillance footage, while in
contrast she initially described the shooter as wearing a black hoodie and a black jacket. Given
these descriptions in conflict with Walker’s identification of defendant during trial, the evidence
supported the reading of M Crim JI 7.8(4).2 And, because defense counsel requested the
instruction, the trial judge abused its discretion when it denied that request. See McKinney, 258
Mich App at 163.

        Nonetheless, defendant is not entitled to relief on appeal because he has not shown that it
affirmatively appears more probable than not that the error was outcome determinative. Dupree,
486 Mich at 712. When the instructions are considered as a whole, although the trial court did
not include paragraph (4) in particular, the trial court instructed the jury on witness credibility at
length and included specific instructions on identification, including the requirement that the
prosecutor prove identification beyond a reasonable doubt as well as various factors for assessing


2
  Defendant also argues that this instruction should have been read because, before trial, Walker
failed to describe the shooter on two occasions. Specifically, at trial, Walker described the
shooter as having the same complexion as defendant, but when police asked her to describe the
shooter’s complexion, she could not. In addition, the manager of the Tippin Inn Lounge testified
that, immediately after the shooting, Walker told him that she had not seen the shooter. While
these inconsistencies were certainly relevant to the question of Walker’s credibility, we do not
think they necessarily support the reading of paragraph (4). That is, Walker’s failure to provide a
description does not evince the giving of a description that does not match defendant, a failure to
identify defendant, or an identification of someone other than defendant. In any event, even
supposing this evidence supported the reading of paragraph (4), as discussed infra, any error in
the omission of this instruction did not result in a miscarriage of justice. See McKinney, 258
Mich App at 163.


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the dependability of the witnesses’ identification testimony. The jurors were instructed to
carefully consider the strengths and weaknesses of the identification testimony. And, with
regard to credibility, the jury was told it could consider an earlier statement by the witness “in
deciding whether the witness testified truthfully in court.” Moreover, the jury was made fully
aware of all of the inconsistencies in Walker’s descriptions of the shooter, and defense counsel
had the opportunity to cross-examine her regarding these inconsistencies and to challenge her
credibility in closing arguments. In addition, Walker’s testimony was not the only identification
testimony presented to the jury. The jury also had the opportunity to consider in-court
identifications of defendant as the suspected shooter in the still photographs extracted from the
surveillance video footage. Indeed, the jury had the opportunity to view video footage and to
examine the still photographs to make their own assessment of the suspect’s identity. And, while
defendant denied responsibility for the shooting, his own testimony placed him in the bar on the
night in question. On this record, defendant has not shown that it affirmatively appears more
probable than not that the failure to read paragraph (4) was outcome determinative. See Dupree,
486 Mich at 712. Thus, reversal is not required.

       Next, defendant argues that the evidence presented was insufficient to support his
convictions. In particular, defendant contends that the prosecutor presented insufficient evidence
to establish defendant’s identity beyond a reasonable doubt. He maintains that Walker’s
testimony was the only evidence to establish his identity as the shooter and that her testimony
was too unreliable to support his convictions.

       We review challenges to the sufficiency of evidence de novo. People v Harverson, 291
Mich App 171, 177; 804 NW2d 757 (2010). This Court reviews the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could have found each
element of the charged crimes proved beyond a reasonable doubt. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012). “Circumstantial evidence and reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime.” People v
Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005). This Court resolves conflicts in the
evidence in favor of the prosecution, and “we will not interfere with the trier of fact’s
determinations regarding the weight of evidence and the credibility of the witnesses.” People v
Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).

        To sustain a conviction of first-degree premeditated murder, the prosecution must prove
that defendant (1) intentionally killed a person, with (2) premeditation and deliberation. People v
Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). For a conviction of felony-firearm, the
prosecution must show that defendant possessed a firearm during the commission, or the attempt
to commit, a felony. People v Akins, 259 Mich App 545, 554; 675 NW2d 863 (2003). In
addition, identity is an essential element of every offense. People v Yost, 278 Mich App 341,
356; 749 NW2d 753 (2008). Positive identification by witnesses may be sufficient to support a
conviction, and the credibility of identification testimony is a question for the trier of fact that we
will not resolve anew. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).

        In this case, Walker witnessed the shooting, and she identified defendant as the shooter at
trial. In addition, although the bar’s manager claimed that Walker told him she did not see the
shooter, Walker provided police with a description of the shooter at the scene. While there were
some inconsistencies in Walker’s description when compared with her trial testimony, she

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explained to the jury that she calmed down the day after the shooting and provided a more
accurate description, including a description of a yellow hoodie. The jury also heard that Walker
identified defendant as the shooter during a photographic line-up. Although defendant attempts
to rehash the reliability of Walker’s identification on appeal, the credibility of Walker’s
identification testimony was a question for the jury. See id. Moreover, contrary to defendant’s
claim that Walker’s testimony was the only evidence of his guilt, the jury was provided with still
photographs taken from surveillance cameras depicting the suspected shooter and given the
opportunity to make their own comparisons. Further, defendant’s own testimony placed him in
the bar on the night in question. And, Walker’s identification testimony was also supported by
the testimony of two other witnesses who were acquainted with defendant. These witnesses
viewed the still photographs and identified the suspected shooter as defendant. Although
defendant denied involvement in the shooting and presented witnesses to testify that the
photographs did not depict defendant, the resolution of this conflicting evidence was a question
for the jury. See Unger, 278 Mich App at 222. Viewed in a light most favorable to the
prosecution, the evidence was sufficient to establish defendant’s identity and to support his
convictions for first-degree premediated murder and felony-firearm.

        Finally, in his Standard 4 brief, defendant argues that defense counsel’s failure to consult
and/or call (1) a forensic video expert and (2) an identification expert constituted ineffective
assistance of counsel and deprived him of a fair trial. Defendant speculates that such testimony
would have been beneficial to his case and, at a minimum, he contends that consulting with such
experts would have enabled defense counsel to conduct a more thorough cross-examination of
the police officer who compiled the video footage and still photographs in this case.

         Defendant failed to preserve this issue by bringing a timely motion for a new trial or
moving for a Ginther3 hearing in the lower court. People v Petri, 279 Mich App 407, 410; 760
NW2d 882 (2008). This Court’s review of unpreserved ineffective assistance of counsel claims
is limited to mistakes apparent on the record. Id. To establish ineffective assistance, the
defendant must show “(1) that counsel's representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” People
v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks and citation omitted).
There is a strong presumption that an attorney’s assistance was effective, and the defendant bears
the heavy burden of proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314
(2009). “An attorney's decision whether to retain witnesses, including expert witnesses, is a
matter of trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). “This
Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor
will it assess counsel's competence with the benefit of hindsight.” Petri, 279 Mich App at 411
(citation omitted). Moreover, a defendant bears the burden of establishing the factual predicate
of an ineffective assistance claim. Douglas, 496 Mich at 592.




3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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        Defendant argues that he was deprived of the effective assistance of counsel because
defense counsel failed to consult and/or call (1) a forensic video expert to rebut the testimony of
the prosecutor’s video forensic expert, and (2) an identification expert regarding identification
testimony. However, defendant has failed to establish the factual predicate of his claim. First,
the record is devoid of any indication regarding whether counsel consulted with an identification
expert or forensic video expert in preparation for trial. Second, defendant offers no proof that
experts would have testified favorably to defendant if called. Cf. People v Ackerman, 257 Mich
App 434, 455; 669 NW2d 818 (2003). Absent such proof, defendant has not shown that
counsel’s performance fell below an objective level of reasonableness or that retention of experts
could have altered the outcome of the trial. See id.; Payne, 285 Mich App at 190. Thus,
defendant has not shown he was denied the effective assistance of counsel.

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ David H. Sawyer
                                                            /s/ Joel P. Hoekstra




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