                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 3, 2018
              Plaintiff-Appellee,

v                                                                  No. 335955
                                                                   Wayne Circuit Court
JOHNATHAN LAMAR BURKS,                                             LC No. 16-002935-03-FC

              Defendant-Appellant.


Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

       Following a jury trial, defendant appeals as of right his convictions of first-degree home
invasion, MCL 750.110a(2), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The trial court sentenced defendant as a third-habitual
offender, MCL 769.11, to consecutive prison terms of 18 to 40 years for the home invasion
conviction and two years for the felony-firearm conviction. We affirm.

        Defendant was convicted for aiding and abetting his two co-defendants, one of whom
burst into a home, shooting three people in retaliation for an earlier incident. A three-year-old
child died as a result of the shooting and two adults were injured.1 On appeal, defendant sets
forth claims of error regarding the defense of duress, along with maintaining that his home
invasion sentence, which reflected a departure from the minimum guidelines range, was not
reasonable.

       With respect to the defense of duress, it was not raised by defense counsel at trial, so
there was no jury instruction on duress and the jurors were not directed to resolve any questions
concerning duress. However, the jury posited a question during its deliberations regarding




1
  The jury acquitted defendant of first-degree premeditated murder, MCL 750.316(1)(a), first-
degree felony murder, MCL 750.316(1)(b), two counts of assault with intent to commit murder
(AWIM), MCL 750.83, and discharge of a firearm at a building causing death, MCL
750.234b(5).

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whether duress or coercion negated criminal responsibility, 2 and the trial court informed the
jurors that such a defense had not been presented and that duress is not a defense to the charged
crimes, certainly as to the murder, AWIM, and discharged-firearm offenses that defendant was
facing, for which he was later acquitted. Defendant argues that he was denied due process and a
fair trial when the court refused to explain to the jury that duress is indeed a defense to home
invasion and felony-firearm.

       In People v Lemons, 454 Mich 234, 245-247; 562 NW2d 447 (1997), our Supreme Court
explained the defense of duress:

              Duress is a common-law affirmative defense. It is applicable in situations
       where the crime committed avoids a greater harm. The reasons underlying its
       existence are easy to discern:

                “The rationale of the defense of duress is that, for reasons of social policy,
       it is better that the defendant, faced with a choice of evils, choose to do the lesser
       evil (violate the criminal law) in order to avoid the greater evil threatened by the
       other person.”

              In order to properly raise the defense, the defendant has the burden of
       producing some evidence from which the jury can conclude that the essential
       elements of duress are present. . . . [A] defendant successfully carries the burden
       of production where the defendant introduces some evidence from which the jury
       could conclude the following:

              A) The threatening conduct was sufficient to create in the mind of a
       reasonable person the fear of death or serious bodily harm;

              B) The conduct in fact caused such fear of death or serious bodily harm in
       the mind of the defendant;

               C) The fear or duress was operating upon the mind of the defendant at the
       time of the alleged act; and

               D) The defendant committed the act to avoid the threatened harm.
       [Citations and quotation marks omitted.]

Duress concerns a situation where a defendant admits having committed the charged crime, but
attempts to justify, excuse, or mitigate it; it does not negate the elements of the crime. Id. at 246
n 15. A threat of future injury does not support the defense of duress; rather, the threatening
conduct or act of compulsion must be impending, imminent, and present. People v Henderson,
306 Mich App 1, 5; 854 NW2d 234 (2014). The threat underlying a claim of duress must not



2
 Evidently, the jurors, on their own initiative, conceived of the possibility that defendant acted
under duress or was coerced.

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have arisen out of the negligence or fault of the person pursuing the defense. Id. Duress is not a
defense to murder, aiding and abetting a murder, and AWIM. Id. at 5-8. Finally, we note that
jury instructions must include all of the elements of the charged crimes and cannot exclude
material issues, defenses, or theories where there is supporting evidence. People v McKinney,
258 Mich App 157, 162-163; 670 NW2d 254 (2003).

        We shall proceed on the assumption that duress is a defense to first-degree home invasion
and felony-firearm. The trial court should have simply informed the jury that duress was not a
defense being raised by defendant. Instead, the court proceeded to additionally state that duress
is not a defense under the law to any of the charged crimes, with the court then backtracking
somewhat by indicating that duress is certainly not a defense to homicide, AWIM, and
discharging a firearm, thereby perhaps suggesting that it might be a defense to first-degree home
invasion and felony-firearm. However, the trial court’s overall answer could reasonably have
been construed as indicating that duress could not be considered by the jurors on all of the
charged crimes. Defendant insists that the trial court should have expressly and clearly told the
jury that duress is a defense to the crimes upon which defendant was convicted, i.e., first-degree
home invasion and felony-firearm. The problem with this argument is that there existed no basis
for giving a duress instruction in the first place, as there was inadequate evidence supporting an
instruction on duress under the elements enunciated in Lemons, 454 Mich at 246-247. Therefore,
given that defendant was not entitled to a jury instruction on duress even had it been requested,
the fact that the trial court effectively removed the issue from the jury’s consideration cannot be
deemed a violation of due process or the right to a fair trial. Defendant had no right to have the
jury contemplate the defense of duress, and reversal is unwarranted.3

         Additionally, we also reject defendant’s associated argument that defense counsel was
ineffective for not requesting that the trial court, in response to the jury’s inquiry, explain to the
jurors that duress is a defense to first-degree home invasion and felony-firearm. Again,
defendant was not legally entitled to a duress instruction, which is essentially what he would
have received had the court informed the jury that duress is a defense. Counsel is not ineffective
for failing to raise futile or meritless arguments. People v Erickson, 288 Mich App 192, 201;
793 NW2d 120 (2010).4


3
  Moreover, even if there was adequate evidence of duress, it would not have been appropriate
for the trial court to allow the jurors to consider the defense, as, once again, it was not a defense
raised by defense counsel at trial. Because a duress defense was not raised, the prosecutor had
no need or reason to present evidence to attempt to counter the defense or to argue against the
defense. Defendant’s position on appeal would have effectively and unfairly deprived the
prosecution of challenging the defense of duress.
4
  To the extent that defendant is arguing that counsel was ineffective for not raising a duress
defense at trial, which does not appear to be an argument presented in his brief, we cannot
conclude that counsel’s performance fell below an objective standard of reasonableness, where
counsel chose to present and focus on a “mere presence” defense, which succeeded in part given
the acquittals on the more serious charges. People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000).

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       Defendant next argues that his sentence on the home invasion conviction was not
reasonable and was based on acquitted conduct. Defendant’s minimum sentence guidelines
range was 57 to 142 months; however, the trial court imposed a home invasion sentence with a
minimum term of 216 months (18 years), exceeding the top end of the guidelines range by
approximately six years and two months. The trial court reasoned as follows:

               Well, [defendant], if you have a small child, then you of all people should
       have known that possible harm and what possible heartache could come from
       gunfire being utilized in a small residential place where there was a three-year-old
       child.

             In this particular case you mobilized an angry, volatile young person that
       you knew to be angry and volatile, and who had a penchant for using guns to
       come over and rally with you because of someone’s missing tennis shoes.

               A three-year old child has no future. There is a heartache for that family
       because it was your idea. You were the one who instigated the phone call and all
       of the action that led to a three-year old child being murdered on Easter Sunday.

               I know that your position has been that you did not do anything, that you
       were just there watching. Well, the jury didn’t believe that, and I don’t believe
       that. Nobody brings spectators to a murder. You were involved. You were there in
       the car with the shooter driving there, and you were there with the shooter driving
       away, and you were prepared to be the wheel man to drive away. And, but for
       your active involvement, that three-year old child would be alive today. You bear
       enormous responsibility.

The trial court further remarked that the guidelines did not adequately reflect the serious harm
that occurred in this case.

       In People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), the Supreme Court
held that a sentence that departs from the guidelines range is to be reviewed “for
reasonableness.” And in People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017),
the Supreme Court clarified that the reasonableness of a departure sentence is to be reviewed for
an abuse of discretion, applying the principle-of-proportionality from People v Milbourn, 435
Mich 630, 636; 461 NW2d 1 (1990), “ ‘which requires the sentences imposed by the trial court
to be proportionate to the seriousness of the circumstances surrounding the offense and the
offender.’ ”

        Defendant argues that his sentence was not reasonable or proportionate because he was
acquitted of aiding and abetting in the three-year-old’s death, because he did not carry a gun to
the scene of the crime, and because he did not have any previous “high” felonies. However,
despite the jury’s determination that the prosecutor failed to prove beyond a reasonable doubt
that defendant aided and abetted in the murder or as to AWIM, there was evidence that
defendant’s actions set in motion the events leading to the shooting death and injuries. As noted
by the trial court, defendant’s behavior in being a part of the group that produced the death and
injuries in retaliation for what defendant thought had been an assault on his brother was not
adequately accounted for in the sentencing guidelines. Contacting a violent person, knowing that
                                                -4-
he is violent and utilizes firearms, immediately after learning of his brother’s situation, along
with participating in the retaliation, defendant properly shares the blame for the carnage, at least
for purposes of a sentencing departure. The trial court’s view that defendant’s phone call to the
gunman over stolen shoes was the catalyst for the crimes, in contrast to defendant’s view that he
was merely a spectator, was supported by the evidence. Defendant also has two prior felonies.
The trial court did not abuse its discretion in imposing the upward departure, as the minimum
sentence of 18 years was proportionate to the seriousness of the circumstances surrounding the
offense and the offender.

        Finally, with respect to defendant’s arguments concerning judicial fact-finding, the Court
in Lockridge, 498 Mich at 392 n 28, expressly allowed for such fact-finding in relationship to the
offense variables for purposes of advisory guidelines, and defendant’s anticipation that the
Supreme Court’s ruling in Steanhouse might alter Lockridge on the matter did not come to
fruition. And defendant has not presented a viable or persuasive argument that judicial fact-
finding is improper relative to establishing the basis for a sentencing departure.

       Affirmed.


                                                             /s/ Kirsten Frank Kelly
                                                             /s/ William B. Murphy
                                                             /s/ Michael J. Riordan




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