                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 22, 2015
               Plaintiff-Appellee,

v                                                                  No. 318286
                                                                   Saginaw Circuit Court
LEVONNE JOMARRIO GREER,                                            LC No. 12-037967-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of first-degree premeditated murder,
MCL 750.316a, conspiracy to commit first-degree premeditated murder, MCL 750.157a, eight
counts of felony-firearm, MCL 750.227b, five counts of assault with intent to commit murder,
MCL 750.83, and one count each of carrying a concealed weapon (CCW), MCL 750.227,
carrying a dangerous weapon with unlawful intent, MCL 750.226, and discharging a firearm
from a vehicle, MCL 750.23a. We affirm defendant’s convictions and sentences, except for the
sentence imposed for conspiracy to commit first-degree premeditated murder, which must be
corrected to indicate the possibility of parole.

       This case arises out of a shooting that resulted in the death of six-year-old Layla Jones.
Jones was shot as she prepared to get into the back seat of her grandmother’s car after spending
the evening with friends and family at her aunt’s house at 1115 Essling Street in Saginaw. She
died shortly thereafter at a local hospital emergency room.

        Defendant, Rico Saldana, Julian Ruiz, and Michael Lawrence spent the day of August 29,
2012 drinking rum and smoking marijuana at Saldana’s house on Harold Street in Saginaw. At
some point, they learned that Bobby Bailey, one of defendant’s childhood friends, had been
murdered earlier that day. Apparently another of defendant’s friends, Chris Diggs, had been
killed two years earlier. Saldana asked Ruiz to see if he could borrow his sister’s Buick Skylark.
After Ruiz picked up the car, he followed Saldana and defendant to a house on 19th Street,
where Saldana parked the Dodge Avenger he was driving. The four men then got into the
Skylark, with Saldana driving, defendant in the seat behind him, Ruiz next to defendant in the
backseat, and Lawrence next to Saldana in the front passenger’s seat. Defendant had a .40
caliber gun and Lawrence a .45 caliber gun.



                                               -1-
        After turning onto Essling Street, when one of the men in the car said, “there go
somebody.” Lawrence then reached across Saldana, who slowed the car to a roll as it
approached the bottom of the driveway at 1115 Essling Street, and began firing out of the
driver’s side front window. Defendant fired out of the driver’s side back window. The two men
fired approximately 12 shots before Saldana accelerated down Essling. Ruiz testified that the
Skylark was shot at. Although he was not certain if Lawrence and defendant shot before the
Skylark was fired upon, he thought the latter was return fire as the Skylark accelerated down the
street. Layla Jones was fatally injured.

       After leaving the scene of the shooting, Saldana drove back to 19th Street, where he and
defendant got back into the Avenger, and Ruiz and Lawrence drove the Skylark back to
Saldana’s house. Ruiz and Lawrence collected three shell casings from inside the Skylark and
threw them into the sewer in front of Saldana’s house. Later that evening, after Ruiz had
returned the Skylark to his sister, defendant spoke with him on the telephone to make sure he had
cleaned the car; when he said that he had not, defendant told him to clean the car with baby
wipes. The next day, Saldana gave Ruiz a can of disinfectant and told him to use it to clean the
car. Ruiz hid the disinfectant and towel he used in a doghouse behind his house.

        Two days after the shooting, police arrested defendant and Saldana at a motel. Later that
night, in a videotaped interview with Saginaw Police Department Detective Andrew Carlson,
defendant confessed to his involvement in the shooting. The videotape of defendant’s interview
was played for the jury. The videotape also included several telephone conversations between
defendant and his girlfriend and family members during which he admitted that he shot Layla
Jones.

        On appeal, defendant first claims a violation of his right to due process stemming from
the trial court’s admission of his videotaped confession into evidence. Defendant contends that
his confession to Detective Carlson was made in reliance on the detective’s promises of leniency
and was, therefore, involuntary. “When reviewing a trial court’s determination of voluntariness,
this Court is required to examine the entire record and make an independent determination of the
issue as a question of law.” People v Wells, 238 Mich App 383, 386; 605 NW2d 374 (1999).
The Court will affirm a trial court’s decision unless it is left with a definite and firm conviction
that a mistake was made. People v Sexton (After Remand), 461 Mich 746, 752; 609 NW2d 822
(2000).

        A criminal defendant’s confession must be “free and voluntary.” People v Daoud, 462
Mich 621, 632; 614 NW2d 152 (2000). It “must not be extracted by any sort of threats or
violence, nor obtained by any direct or implied promises, however, slight, nor by the exertion of
any improper influence.” Id. (internal quotation marks and citations omitted). “[M]ere
adjurations or exhortations to tell the truth, without more, are insufficient to vitiate the
voluntariness of a confession.” People v Conte, 421 Mich 704, 740; 365 NW2d 648 (1984)
(opinion by WILLIAMS, C.J.).

       The test of voluntariness is whether, considering the totality of the circumstances, “the
confession is the product of an essentially free and unconstrained choice by its maker, or whether
the accused’s will has been overborne and his capacity for self-determination critically impaired”


                                                -2-
People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988) (internal quotation marks and
citation omitted). Factors to be considered include:

         [T]he age of the accused; his lack of education or his intelligence level; the extent
         of his previous experience with the police; the repeated and prolonged nature of
         the questioning; the length of the detention of the accused before he gave the
         statement in question; the lack of any advice to the accused of his constitutional
         rights; whether there was an unnecessary delay in bringing him before a
         magistrate before he gave the confession; whether the accused was injured,
         intoxicated or drugged, or in ill health when he gave the statement; whether the
         accused was deprived of food, sleep, or medical attention; whether the accused
         was physically abused; and whether the suspect was threatened with abuse. [Id.]

        We conclude from our review of the totality of the circumstances, in light of the Cipriano
factors, that defendant’s confession was voluntary. At the time he made the challenged
statements, defendant was 22 years old, of at least average intelligence, and, by his own
admission, experienced with the police. After being apprised of his Miranda1 rights, defendant
voluntarily waived them, and although the interview lasted over three hours, the length was not
per se unreasonable. There is no evidence he was injured, intoxicated, drugged, or in ill health.
He had something to eat at the police station prior to the interview, was not denied sleep or
medical attention, and at no time was he physically abused or threatened with abuse. The record
simply does not support the conclusion that defendant’s will was overborne or his capacity for
self-determination critically impaired. See id.

       It is true that some of the statements Detective Carlson made could be interpreted as
promises of leniency, suggesting defendant would achieve a more favorable outcome if he
cooperated than otherwise. That defendant hoped for the detective’s help is indisputable; that he
confessed in reliance on it is not. Detective Carlson made no specific promises regarding
charges or sentencing. For these reasons, we conclude that defendant’s confession was
voluntary, and affirm the trial court’s admission of the taped confession into evidence.

        Defendant also claims a due process violation based on prosecutorial misconduct.
Specifically, defendant argues that two comments the prosecutor made during his closing and
rebuttal arguments constitute improper appeals to the jury’s sympathy. Our review of this
unpreserved issue is for plain error affecting substantial rights. People v Brown, 279 Mich App
116, 134; 755 NW2d 664 (2008).

        “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Green, 228 Mich App 684, 693; 580 NW2d 444 (1998). Prosecutorial
comments must be read as a whole and evaluated in light of defense arguments and the
relationship they bear to the evidence admitted at trial. Brown, 279 Mich App at 135. Error
requiring reversal will not be found if the prejudicial effects of a prosecutor’s comments could



1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                 -3-
have been cured by a timely instruction. People v Mayhew, 236 Mich App 112, 123, 600 NW2d
370 (1999).

        “It is improper for a prosecutor to appeal to the jury to sympathize with the victim.”
People v Dalessandro, 165 Mich App 569, 581; 419 NW2d 609 (1988). Defendant identifies
two specific comments he alleges were designed solely to appeal to jurors’ sympathies.
Referring to Layla Jones’s family during his closing argument, the prosecutor said: “And their
crime is they were having a family get-together. And their crime is that to celebrate her birthday,
she got to visit her dad. And their crime is they were leaving to get back into the car so she
could get back home to her mother.” The second allegedly improper comment occurred during
rebuttal argument, when the prosecutor said: “[Defense counsel] says there’s no way—there’s
no way I can stand up and respond to what the prosecutor says. Well ladies and gentlemen I am
going to tell you, there is no way this little girl is ever going to stand up and respond to
anything.”

        We do not find reversible error here because the statements at issue arose from the
evidence, were isolated, and were not so inflammatory as to prejudice defendant, particularly in
light of the evidence. The prosecution’s references to the “crime” of the family gathering
foreshadowed what the prosecutor later makes explicit; namely, that as an act of revenge for the
death of Bobby Bailey, defendant and his accomplice fired on the first group of people they saw,
regardless of whether anyone in the group had been involved in the murder of Bailey.

        The prosecutor’s statement that Layla Jones is “not going to stand up and respond to
anything,” was an isolated, extemporaneous comment playing off of a statement made by
defendant’s counsel. This Court has found reversible error where a prosecutor has repeatedly
referred to the victim in a manner clearly designed to elicit sympathy, see Dalessandro, 165
Mich App at 580-581, but has found harmless single references such as the one made in this
case, People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). In any event, the
comment, albeit emotional, was not so egregious that a curative instruction could not have cured
any alleged prejudicial effect. Green, 228 Mich App at 693 (stating that “a well-tried, vigorously
argued case should not be overturned on the basis of a few isolated improper remarks that could
have been corrected had an objection been lodged”). Viewing the record as a whole, there are no
grounds on which to suspect that the prosecutor’s comments were outcome determinative or
resulted in a miscarriage of justice.2

        Defendant next argues, and the prosecutor agrees, that the trial court erred in sentencing
defendant to life without the possibility of parole for conspiracy to commit first-degree
premeditated murder. A person sentenced to a term of imprisonment for conspiracy to commit
first-degree murder is eligible for parole. People v Jahner (After Remand), 433 Mich 490, 504;
446 NW2d 151 (1989). The trial court here erred in sentencing defendant to life without the


2
  The court reminded the jury of their oath to “return a true and just verdict based only on the
evidence and [the court’s] instructions on the law.” The court also told the jury that the lawyers’
statements and arguments were not evidence. “It is well established that jurors are presumed to
follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).


                                                -4-
possibility of parole. We remand the matter to the trial court for administrative correction of the
error. MCR 6.429.

        In his Standard 4 brief, defendant argues that he was deprived of effective assistance of
counsel when his attorney failed to introduce into evidence jailhouse messages allegedly sent by
Ruiz to defendant while the two were in jail. Whether defense counsel performed ineffectively is
a mixed question of law and fact; this Court reviews for clear error the trial court’s findings of
fact, and reviews de novo questions of constitutional law. People v Trakhtenberg, 493 Mich 38,
47; 826 NW2d 136 (2012).

        Defendant’s argument that he was deprived of the effective assistance of counsel is
without merit. Defendant contends that admission of the messages could have undermined
Ruiz’s credibility and supported his theory that he fired his gun in response to being fired on. No
one testified with certainty regarding whether the Skylark was fired upon before or after
defendant and Lawrence shot into the group of people on Essling. And although Ruiz allegedly
wrote to defendant saying he “thought those guys shot first,” Ruiz effectively repudiated this
position at trial when he testified that he did not know who shot first, but thought the Skylark
was fired upon after it left the scene. Moreover defendant told Detective Carlson that “[w]e shot
our guns out the windows, and . . . they shot back.” Regarding Ruiz’s credibility, the jury heard
that he had been drinking and smoking marijuana on the day of the incident, had supplied the car
used during the shootings, had attempted to destroy evidence, and had received a lighter sentence
in exchange for his cooperation. Given what the jury knew of Ruiz, it seems unlikely that his
admission in one of the messages that he used cocaine on the day of the incident would have
provided the quantum of evidence the jury needed to reject his testimony as unreliable. Thus,
with no apparent advantage to be gained from entering the messages into evidence, defendant
has not overcome the presumption that trial counsel’s strategy was viable under the
circumstances.

        Defendant’s next Standard 4 argument is that the trial court abused its discretion by
failing to instruct the jury on the lesser included offense of voluntary manslaughter. We review
claims of instructional error de novo. People v Martin, 271 Mich App 280, 337; 721 NW2d 815
(2006).

        “When a defendant is charged with murder, the trial court must give an instruction on
voluntary manslaughter if the instruction is supported by a rational view of the evidence.”
People v Mitchell, 301 Mich App 282, 286; 835 NW2d 615 (2013). “To show voluntary
manslaughter, one must show that the defendant killed in the heat of passion, the passion was
caused by adequate provocation, and there was not a lapse of time during which a reasonable
person could control his passions.” People v Mendoza, 468 Mich 527, 535; 664 NW2d 685
(2003).

        Defendant’s counsel based his request for the instruction on the alleged presence of a
third gun and the assumption that an anonymous shooter fired at the Skylark first. Counsel
argued that a bullet fired to the left of the grandmother’s vehicle differed in rifling from the other
bullets found at the scene, thus indicating the presence of a third gun. He assumed that the
anomalous bullet must have been fired first because it made no sense for the occupants of the
Skylark to fire one bullet to the left of the grandmother’s car before rolling on and firing the rest

                                                 -5-
of the bullets to the right side of her car. Therefore, defendant argues, an anonymous shooter
with a third gun first fired at the car defendant was in, thus provoking defendant to fire recklessly
out of the window.

         Someone apparently did fire on the Skylark, but there is no definitive evidence to support
defendant’s assertion, predicated on a questionable assumption stemming from the location of a
bullet, that the shooter fired first. Defendant never states in his interview with Detective Carlson
that they fired because someone was firing at them. On the contrary, he indicated that they were
not fired upon until they started to pull away. He told Detective Carlson: “We shot our guns out
the windows, and, shit, they shot back. You know, I want to say he ran in the middle of the
street and he started shooting.” Defendant’s statement aligns with Ruiz’s testimony that the
Skylark first came under fire as Saldana sped away from the scene. Based on the evidence
presented at trial, the trial court did not err in denying defendant’s request for a voluntary
manslaughter instruction because a rational view of the evidence does not support such
instruction. See Mitchell, 301 Mich App at 286.

         Defendant’s next Standard 4 issue is the assertion that the evidence was insufficient to
support his conviction for first-degree premeditated murder, conspiracy to commit first-degree
premeditated murder, and assault with the intent to commit first-degree premeditated murder.
Defendant does not argue that he did not conspire or commit assault. The gravamen of
defendant’s argument is that the record does not support a finding of a specific intent to kill or of
deliberation. “In reviewing the sufficiency of the evidence in a criminal case, [this Court] must
view the evidence in a light most favorable to the prosecution and determine whether a rational
trier of fact could find that the essential elements of the crime were proved beyond a reasonable
doubt.” People v Hoffman, 225 Mich App 103, 111; 570 NW2d 146 (1997).

        “[F]irst-degree murder . . . is a specific intent crime requiring an intention to take a life.”
People v Johnson, 93 Mich App 667, 670; 287 NW2d 311 (1979), rejected in part on other
grounds by People v Williams, 422 Mich 381; 373 NW2d 567 (1985). “Mere conscious
indifference to the likelihood of death as a result of a person’s intentional act is not enough; to
commit first-degree murder, a person must act with the purpose of causing death.” People v
Milton, 81 Mich App 515, 518; 265 NW2d 397, amended on other grounds 403 Mich 821
(1978). Intent to kill may be inferred from the use of a dangerous weapon. People v DeLisle,
202 Mich App 658, 672; 509 NW2d 885 (1993).

        First-degree premeditated murder requires premeditation and deliberation. People v
Wofford, 196 Mich App 275, 277; 492 NW2d 747 (1992). Premeditation and deliberation
require “a lapse of time between the initial homicidal intent and ultimate action which would be
long enough to afford a reasonable man time to subject the nature of his response to a second
look.” People v Conklin, 118 Mich App 90, 93; 324 NW2d 537 (1982), rejected in part on other
grounds by Williams, 422 Mich 381 (internal quotation marks and citation omitted). The time
lapse could be anywhere from a few seconds to hours, “depending on the totality of the
circumstances surrounding the killing.” Id. Evidence of premeditation and deliberation need not
be direct, but may be inferred from the facts and circumstances surrounding the killing,
including: “a weapon acquired and positioned in preparation for the homicide, circumstances
and events surrounding the killing, and organized conduct prior or subsequent to the killing
suggesting the existence of a plan.” People v Youngblood, 165 Mich App 381, 387; 418 NW2d

                                                 -6-
472 (1988). Under the doctrine of transferred intent, if the evidence shows that defendant
intended to kill one person but accidently killed another, defendant’s intent to kill transfers from
the intended victim to the actual victim and defendant may be guilty of first-degree murder of the
actual victim. Id. at 388.

        Defendant’s interview alone established that he acted with the specific intent to kill, after
sufficient premeditation and deliberation. He indicated that they went to Essling because Bailey
had been murdered earlier that day, someone named Nuna had killed defendant’s friend Diggs
two years earlier, and they were “fed up with that shit.” In addition, defendant’s actions both
before and after the shooting, as well as the use of a .40 caliber firearm, supports a finding of
intent to kill. See DeLisle, 202 Mich App at 672. Defendant might not have intended to kill
Layla Jones, but he intended to kill someone, and that intent transfers to the shooting of Jones
under a theory of transferred intent.

        We remand the case to the trial court to correct the sentence imposed for conspiracy to
commit first-degree premeditated murder. In all other respects, we affirm. We do not retain
jurisdiction.

                                                              /s/ Michael J. Talbot
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Michael J. Kelly




                                                -7-
