            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     September 26, 2019
               Plaintiff-Appellee,

v                                                                    No. 343237
                                                                     Iron Circuit Court
JOHNNIE LEE BROWN, III,                                              LC No. 17-002316-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        Defendant, Johnnie Lee Brown, III, conceded to discharging his handgun at a person,
striking his face and resulting in death. Throughout trial, defendant argued that he did so out of a
fear for his life. To the contrary, the prosecutor contended that the shooting had resulted from a
robbery gone awry. After hearing the evidence, the jury was persuaded by the prosecutor’s
position. On appeal, defendant raises several claims of error, none of which have merit.

                                       I. BACKGROUND

       Defendant appeals by right his convictions for second-degree murder, MCL 750.317, and
carrying or possessing a firearm when committing or attempting to commit a felony (“felony-
firearm”), MCL 750.227b. Defendant’s convictions followed from a shooting that occurred on
the evening of April 13, 2016, outside his mother’s house. Three individuals, defendant,
Nicholas Vasquez, and Nicholas Kissling, met at a neighbor’s house and agreed to commit a
robbery. Vasquez and Kissling faced their own charges and were involved in separate
proceedings. The victim was Ja’Mall Kitchens.

       Defendant was 19 years old at the time of the incident. Defendant disputed that he
agreed to commit a robbery, but Vasquez and Kissling both testified that it was defendant’s idea
to commit the robbery. Despite defendant’s mother having obtained a personal protection order
(“PPO”) against defendant only the day prior, of which defendant was aware, the three went to
her house at approximately 10:00 p.m. Defendant knocked on the door but received no answer.
The three remained on the porch and smoked marijuana. Defendant claimed that he had
spontaneously decided to visit his mother, but Vasquez and Kissling testified that the three went


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there to discuss and carry out a robbery. Vasquez explained that the plan was to carry out a
robbery by defendant’s mother’s house.

        There were differing accounts at trial for what transpired next. At some point, the victim
appeared across the street, prompting defendant, Vasquez, and Kissling to leave the porch and
walk toward him. Defendant claimed they were merely heading in the same direction as the
victim and not specifically toward him. Defendant and the victim exchanged words from a
distance, and, according to Vasquez, defendant argued with the victim. Defendant then shot the
victim, striking his face, and the victim died shortly thereafter. Defendant and the others fled the
scene, and Vasquez asked defendant, “Why did you shoot him. We didn’t get to run his pockets
yet.”

        The case lingered without any leads for several months. Eventually, the police identified
defendant as a suspect and arrested him. During his interrogation, he confessed to shooting the
victim but claimed that he did so because he believed the victim had a firearm and was about to
shoot him. These statements were admitted into evidence over defendant’s objections and after a
hearing held pursuant to the procedures outlined in People v Walker (On Rehearing), 374 Mich
331, 338; 132 NW2d 87 (1965). The trial court found that defendant’s statements were
voluntarily made and without police coercion. At trial, the jury was unpersuaded by defendant’s
self-defense theory and convicted him of all counts. The trial court sentenced defendant to serve
30 to 60 years in prison for the second-degree murder conviction and two years for the felony-
firearm conviction.

       This appeal followed.

                                         II. ANALYSIS

                               A. INVOLUNTARY CONFESSION

        Defendant first challenges the voluntariness of his statements made to police during his
interrogation. He claims that his statements were the result of police pressure, his young age, his
mental health issues, and his being under the influence of marijuana. We review de novo the
voluntariness of a confession and the trial court’s factual findings for clear error. People v Ryan,
295 Mich App 388, 396; 819 NW2d 55 (2012). Additionally, we review de novo a trial court’s
decision on a motion to suppress and the trial court’s factual findings on the motion for clear
error. People v Matthews, 324 Mich App 416, 424; 922 NW2d 371 (2018).

       A confession must be voluntary, meaning “the confession is the product of an essentially
free and unconstrained choice by its maker.” People v Cipriano, 431 Mich 315, 333-334; 429
NW2d 781 (1988) (cleaned up). Our Supreme Court previously set forth factors that should be
considered:

       In determining whether a statement is voluntary, the trial court should consider,
       among other things, the following factors: the 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

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       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. at 334]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness.” Id. The totality of the circumstances must show that the confession was
voluntary. Id.

        A critical component to the analysis is whether there was coercive police conduct. As the
United States Supreme Court explained, “Absent police conduct causally related to the
confession, there is simply no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” Colorado v Connelly, 479 US 157, 164; 107 S Ct 515; 93 L
Ed 2d 473 (1986). The Court explained that although “each confession case has turned on its
own set of factors justifying the conclusion that police conduct was oppressive, all have
contained a substantial element of coercive police conduct.” Id. at 163-164. Additionally, while
“courts have found the mental condition of the defendant a more significant factor in the
‘voluntariness’ calculus,” this “does not justify a conclusion that a defendant’s mental condition,
by itself and apart from its relation to official coercion, should ever dispose of the inquiry into
constitutional ‘voluntariness.’ ” Id. at 164.

        At the Walker hearing, defendant noted his young age and eighth-grade education level.
Defendant claimed that he had been previously diagnosed with ADHD, ADD, bipolar disorder,
and autism. According to defendant, police never inquired about his age or mental health.
Defendant also claimed that the police engaged in pressure tactics during the interrogation. He
alleged that the interviewing detective, Detective Keith Stratton, leaned in, gripped defendant’s
leg, gave defendant a “hard staring,” and discussed defendant’s religious beliefs. Defendant
stated that the grip did not cause pain. He acknowledged that Detective Stratton neither raised
his voice nor threatened him. Defendant further claimed that he had smoked marijuana
immediately prior to his arrest and was still under its influence during the interview. According
to defendant, police did not inquire into whether he was under the influence of any substance or
whether he had prior mental-health issues. Defendant acknowledged that he never volunteered
this information to police.

        Defendant rests much of his argument on his assertion that he was under the influence of
marijuana at the time of the interrogation. Detective Stratton, who had been trained to identify
the aroma of marijuana, did not smell marijuana on defendant’s person during the interrogation.
Furthermore, defendant exhibited no signs of intoxication and was clear and concise in his
answers. Detective Stratton observed nothing to prompt him to ask whether defendant was under
the influence of any substance or had mental health issues. Although defendant may disagree
with this testimony, the trial court evidently found Detective Stratton’s testimony more credible,
and we defer to the trial court’s decision on such matters. See Ryan, 295 Mich App at 396.

        Detective Stratton acknowledged that he placed his hand on defendant’s leg and leaned
in, but he explained that this was done out of empathy and not in a forceful or aggressive

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manner. Review of the video confirms this account. The detective had earlier spoken with
defendant’s father and “knew him to be a pastor and I thought . . . something that we both
understood in that room and that was just being a good human being, a good Christian.”
Detective Stratton testified that he merely had encouraged defendant to be honest and tell the
truth during the interrogation. Detective Stratton explained that defendant exhibited no signs of
uncomfortableness.

        Defendant merely presented his own testimony; no other evidence supported his
allegations that he was under the influence of marijuana or had prior mental-health issues
inhibiting his ability to give voluntary statements. While it is true that cognitive deficiencies
remain a factor for trial courts to examine, there is no evidence here to show that Detective
Stratton exploited a mental deficiency or that defendant’s cognitive impairments (if any) were so
severe such that Detective Stratton should have known that defendant was incapable of
understanding. See People v Cheatham, 453 Mich 1, 21 n 18; 551 NW2d 355 (1996).
Defendant merely pointed to his age and education level generally and without elaboration or
support, and he acknowledged that, at the time of the interview, he was not on medication for his
claimed conditions and had not been for a long period of time.

        Defendant’s arguments ignore substantial evidence that supported the trial court’s
determination that his statements were voluntary. Defendant has failed to show direct evidence
of police coercion or conduct resembling coercion. Without such a causal connection, defendant
cannot claim that he was deprived of due process of law. See Connelly, 479 US at 164.
Furthermore, we discern no clear error in the trial court’s factual determinations regarding the
Cipriano factors. Detective Stratton’s testimony supported the finding that defendant’s
statements were voluntarily made. Accordingly, we reject defendant’s first claim on appeal.

                                   B. MIRANDA WARNINGS

       Defendant also argues that the warnings he received pursuant to Miranda v Arizona, 384
US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), were insufficient, making any incriminating
statements inadmissible. This issue is unpreserved because defendant failed to raise it in the trial
court. See People v Calloway, 169 Mich App 810, 818; 427 NW2d 194 (1988), vacated on other
grounds 432 Mich 904 (1989). In any event, we have reviewed the video interview between
defendant and Detective Stratton. Detective Stratton clearly gave defendant sufficient Miranda
warnings, and defendant acknowledged at the Walker hearing that he received these warnings.
The claim is without merit.

                            C. SUFFICIENCY OF THE EVIDENCE

        Defendant next argues that the evidence was insufficient to support his felony-firearm
conviction. He claims that the felony-firearm was predicated on larceny but that there was
insufficient evidence to show that he committed or attempted to commit larceny. We review de
novo a claim of insufficient evidence. People v Solmonson, 261 Mich App 657, 661; 683 NW2d
761 (2004). All “factual conflicts are to be viewed in a light favorable to the prosecution.”
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992). The
appellate court must “view the evidence in a light most favorable to the prosecution and

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determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.” Id.

       Felony-firearm, contained within MCL 750.227b(1), provides in pertinent part:

               A person who carries or has in his or her possession a firearm when he or
       she commits or attempts to commit a felony, except a violation of section 223,
       227, 227a, or 230, is guilty of a felony and shall be punished by imprisonment for
       2 years.

Larceny is a common-law offense with the following elements: “(a) a trespassory taking and (b)
the carrying away (c) of the personal property (d) of another (e) with intent to steal that
property.” People v March, 499 Mich 389, 401; 886 NW2d 396 (2016). An attempt is “(1) an
attempt to commit an offense prohibited by law, and (2) any act towards the commission of the
intended offense.” People v Thousand, 465 Mich 149, 164; 631 NW2d 694 (2001). See also
MCL 750.92. An attempt involves more than mere preparation. Thousand, 465 Mich at 164.

       Although felony-firearm requires the presence of an underlying felony offense, the jury
need not actually convict a defendant of that underlying offense. People v Lewis, 415 Mich 443,
454-455; 330 NW2d 16 (1982). This seemingly inconsistent verdict is permitted because a jury
has the power to find beyond reasonable doubt that a defendant committed an offense but
nonetheless choose to extend leniency and not convict for that offense. Id. at 450-452.

        Contrary to defendant’s arguments on appeal, there was ample evidence to support a
finding of attempted larceny as a predicate for the felony-firearm conviction. Both Vasquez and
Kissling testified that the three discussed carrying out a robbery and that it was defendant’s idea
to commit a robbery. Kissling testified that this plan was in place at the time defendant shot the
victim. Vasquez testified that the three planned for the robbery to occur near the house of
defendant’s mother and that the three waited between 30 minutes and one hour before the victim
appeared across the street. Kissling testified that, once they observed the victim, the three began
walking toward the victim. After the shooting, Vasquez asked defendant, “Why did you shoot
him. We didn’t get to run his pockets yet.”

       Accordingly, there was evidence demonstrating that defendant, Vasquez, and Kissling
formed an agreement to deprive a victim of his personal property with the intent to steal
property. See March, 499 Mich at 401. There was evidence demonstrating that defendant,
Vasquez, and Kissling took several acts toward committing larceny by agreeing to commit the
crime around the house of defendant’s mother, lying in wait for a victim, and moving to
approach the victim once they observed him. These acts went beyond mere preparation. See
Thousand, 465 Mich at 164. Therefore, defendant was properly convicted of felony-firearm
predicated on attempted larceny.

                       D. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant finally argues that his trial counsel was ineffective for failing to object to three
separate pieces of testimony. Defendant contends that this evidence prejudiced him and should
have been excluded. We first note that because defendant failed to move for a new trial or

                                                -5-
hearing based on People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), our review is limited
to those mistakes visible on the record. People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008).

        There is a strong presumption that trial counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment,” People v Vaughn,
491 Mich 642, 670; 821 NW2d 288 (2012) (cleaned up), and a defendant has a “heavy burden”
to show otherwise, People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (cleaned up).
For an ineffective assistance of counsel claim to be successful, a defendant must show: (1)
“counsel’s representation fell below an objective standard of reasonableness,” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80
L Ed 2d 674 (1984). Furthermore, examination of counsel’s actions must be “highly deferential”
and without the benefit of hindsight, Strickland, 466 US at 689, and there is a “strong
presumption” that counsel’s actions came from “sound trial strategy,” People v Trakhtenberg,
493 Mich 38, 52; 826 NW2d 136 (2012). We must not “substitute our judgment for that of
counsel on matters of trial strategy.” People v Unger, 278 Mich App 210, 242-243; 749 NW2d
272 (2008).

         Defendant challenges three pieces of testimony: (1) testimony about items going missing
in a witness’s house; (2) testimony regarding the PPO that defendant’s mother took out against
him; and (3) testimony concerning a prior robbery and shooting that defendant was involved in.
Regarding the missing items, the witness merely testified that a few items had gone missing from
her house and that she suspected defendant and his friends were to blame. Only “little things”
had gone missing, and she referred to defendant and his friend’s potential actions as “dumb kid
things.” Although perhaps defendant’s trial counsel could have objected to this testimony, doing
so could have unnecessarily drawn the jury’s attention to these other instances instead of to
defendant’s theory, i.e., he feared for his life at the time he shot the victim. Moreover, the
testimony was not as damaging as defendant claims on appeal. The witness briefly testified that
she merely suspected the three men, that the items were small, and that she was unaware of any
criminal activity. The presumption is that defense counsel’s actions resulted from acceptable
trial strategy, Trakhtenberg, 493 Mich at 52, and defendant has failed to rebut the presumption,
Seals, 285 Mich App at 17.

        Regarding the PPO, this was relevant to the prosecutor’s case because she used it to show
that defendant was not merely visiting his mother’s house on the night of the shooting. On that
night, defendant knew that the PPO had been served on him the day prior and that it legally
prevented him from visiting his mother’s house or possessing a firearm. With this knowledge,
defendant had no lawful reason to visit his mother at 10:00 p.m. with a firearm a single day after
receiving the PPO, and the prosecutor attempted to persuade the jury on this point. The
prosecutor used the PPO in her efforts to show that defendant, Kissling, and Vasquez went to the
house not to visit or smoke marijuana but to carry out a robbery. Accordingly, this evidence was
relevant, and defense counsel had no duty to make a meritless or futile objection. See People v
Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).

        Finally, the prior robbery and shooting were relevant because it related to defendant’s
claim that he knew the victim and that this fueled his fear for his life. The prosecutor questioned

                                                -6-
defendant about how he knew the victim, and defendant explained that he knew the victim from
a prior case, which involved a robbery and shooting. The specifics of the robbery and shooting
are unclear from the record before us. The testimony presented at trial merely demonstrated that
a prior case involving a robbery and shooting occurred, that defendant was a witness and brought
to court to testify but ultimately was never called to do so, and that the victim from the present
case was in the courtroom in that prior case. There was no indication that defendant was a
perpetrator in that prior case. Rather, the perpetrator in the case was a friend of the victim, and
the jury heard this.

        The challenged testimony was procured because defendant claimed that he knew it was
the victim on the night of the shooting and that this knowledge fueled his fear and decision to
shoot the victim. Defendant contended that he feared reprisal from the victim due to defendant’s
involvement in the prior case against the victim’s friend. The prosecutor doubted whether
defendant knew who the victim was at the time of the shooting, and she therefore questioned
defendant to determine how he knew the victim and to what extent. Defendant voluntarily
offered the testimony concerning the prior case and his involvement with it. Accordingly, given
that this testimony related to a part of defendant’s theory, it was relevant, and there is no
indication that the testimony was harmful given that defendant was not the perpetrator but
merely a witness in that prior case. Again, counsel need not make a meritless or futile objection.
Putman, 309 Mich App at 245. Therefore, defendant has failed to show that his trial counsel’s
actions fell below an objective standard of reasonableness. Strickland, 466 US at 688, 694.

        Moreover, defendant’s claim would independently fail because he cannot show prejudice.
There was ample evidence for the jury to find defendant guilty of the shooting. It is incumbent
upon defendant to show how the result would have been different “but for” his trial counsel’s
actions. See id. Defendant has failed to demonstrate how these three pieces of testimony
outweighed the eyewitness testimony and defendant’s own testimony. This was not a case in
which defendant denied the shooting; his credibility was not relevant in that regard. The
question before the jury was whether the shooting occurred in self-defense or during a robbery
gone wrong, and there was ample independent evidence of defendant’s guilt.

       Affirmed.



                                                            /s/ Brock A. Swartzle
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Michael J. Kelly




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