                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 19, 2016
                Plaintiff-Appellee,

v                                                                    No. 323606
                                                                     Oakland Circuit Court
KERRY BYRON HOLLEY,                                                  LC No. 14-249267-FC

                Defendant-Appellant.


Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317,1 felon in possession of a firearm, MCL 750.224f, and two counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b(a). He was
sentenced as a third habitual offender, MCL 769.11, to concurrent terms of 30 to 70 years’
imprisonment for the second-degree murder conviction, 4 to 10 years’ imprisonment for the
felon in possession of a firearm conviction, and two years’ imprisonment for each felony-firearm
conviction. We affirm.

        Defendant first argues that the trial judge’s bias and impartiality denied him a fair trial.
Specifically, defendant claims that the trial court engaged in misconduct by repeatedly
admonishing defendant for his failure to answer the questions asked during his testimony, even
when there was no objection from the prosecutor. Because defendant failed to raise a claim of
judicial bias in the trial court, his claim is unpreserved. People v Jackson, 292 Mich App 583,
597; 808 NW2d 541 (2011). We review unpreserved claims of error for plain error affecting
substantial rights. Id.

       The United States and Michigan Constitutions both guarantee a defendant the right to a
fair and impartial trial. See US Const, Am VI; Const 1963, art 1, § 20. A defendant must
overcome a heavy presumption of judicial impartiality when claiming judicial bias. Jackson,
292 Mich App at 598. In People v Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015), our



1
    Defendant was found not guilty of first-degree murder, MCL 750.316(a).


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Supreme Court clarified the proper analysis under which a claim of judicial misconduct is to be
reviewed:

       A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
       pierces the veil of judicial impartiality. A judge’s conduct pierces this veil and
       violates the constitutional guarantee of a fair trial when, considering the totality of
       the circumstances, it is reasonably likely that the judge’s conduct improperly
       influenced the jury by creating the appearance of advocacy or partiality against a
       party. [Citations omitted.]

A fact-specific inquiry is required. Id. at 171. “A single inappropriate act does not necessarily
give the appearance of advocacy or partiality, but a single instance of misconduct may be so
egregious that it pierces the veil of impartiality.” Id. A reviewing court must first consider the
nature or type of judicial conduct asserted. Id. at 172. Judicial misconduct includes the belittling
of counsel, inappropriate questioning of witnesses, providing improper strategic advice to one
side, or biased commentary in front of the jury. Id. at 172-173. However, the trial court is also
required to “exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.” MRE 611(a).

        Defendant points to several instances where the trial court instructed defendant that he
must answer the question asked of him without elaboration. After reviewing the record, we
conclude that the trial judge’s conduct did not pierce the veil of judicial impartiality. Stevens,
498 Mich at 164. Considering the totality of the circumstances, it is not reasonably likely that
the trial judge’s conduct improperly influenced the jury by creating the appearance of advocacy
or partiality against defendant. Id. The tone and demeanor of the trial judge was respectful for
the most part. While there were times when the trial judge appeared to express impatience with
defendant, comments that are critical of or hostile to counsel and the parties are generally not
sufficient to pierce the veil of impartiality. Jackson, 292 Mich App at 598.

        Moreover, the record shows that defendant did frequently offer testimony that was
unrelated or unnecessary to the question posed to him. Defendant’s trial counsel even struggled
with defendant’s narrative-type answers—he repeatedly stopped defendant’s testimony to reign
in defendant’s answers. Thus, the trial judge’s actions were directed at defendant simply because
defendant appeared unwilling or unable to limit his answers. We further note that defendant’s
testimony encompassed more than 150 pages of transcript over a two-day period, yet defendant
only points to eight instances in which the trial court admonished him to answer the question
asked. Finally, by ensuring defendant’s testimony was responsive, the trial court exercised
reasonable control over the mode of interrogating witnesses so as to “make the interrogation and
presentation effective for the ascertainment of the truth” and to “avoid needless consumption of
time.” MRE 611(a). Accordingly, we are unconvinced that the judge’s comments illustrated
judicial bias.

       In conjunction with the trial court’s comments regarding defendant’s narrative testimony,
defendant also complains that the trial court made another unfair comment toward defendant,
which he claims cast doubt on his credibility. During cross-examination, defense counsel

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objected, asserting that the prosecution was mischaracterizing the evidence in regard to a
question asked. The trial court stated that it thought there was record evidence to support the
question, but ruled that it would leave the dispute over the evidence to the judgment of the jury.
We fail to see how this conduct exhibits bias where the trial judge correctly instructed the jury
that it was the finder of the facts.

        Furthermore, the trial court instructed the jury at the beginning of trial and at the close of
proofs that his comments did not reflect his opinions on the case and that it should ignore any
belief that the trial court had an opinion about the case. Because jurors are presumed to follow
their instructions, the presence of these curative instructions cuts against a finding of judicial
bias. Stevens, 498 Mich at 190. For these reasons, we conclude that the trial court’s conduct did
not constitute plain error affecting defendant’s substantial rights, and defendant is not entitled to
relief on this ground. In addition, because defendant cannot demonstrate judicial bias, we also
reject defendant’s claim that defense counsel was ineffective for failing to object. Counsel is not
ineffective for failing to raise meritless or futile objections. People v Eisen, 296 Mich App 326,
329; 820 NW2d 229 (2012).

        Defendant next argues that the trial court erred by instructing the jury on second-degree
murder. We disagree. “We review a claim of instructional error involving a question of law de
novo, but we review the trial court’s determination that a jury instruction applies to the facts of
the case for an abuse of discretion.” People v Dupree, 486 Mich 693, 702; 788 NW2d 399
(2010).

        “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). A trial court must
instruct the jury with respect to necessarily included lesser offenses on a request for such
instructions so long as “the charged offense requires the jury to find a disputed factual element
that is not part of the lesser included offense and a rational view of the evidence would support
it.” People v Smith, 478 Mich 64, 69; 731 NW2d 411 (2007) (quotation marks and citation
omitted). In People v Cornell, 466 Mich 335, 358 n 13; 646 NW2d 127 (2002), overruled in part
on other grounds People v Mendoza, 468 Mich 527 (2003), our Supreme Court discussed when a
second-degree murder instruction, as a necessarily included lesser offense of first-degree murder,
should be given:

       In light of our holding that a requested instruction on a necessarily included
       offense must be supported by the evidence, an instruction on second-degree
       murder, as a necessarily included lesser included offense of first-degree murder, is
       not automatically required. Rather, such an instruction will be proper if the intent
       element differentiating the two offenses is disputed and the evidence would
       support a conviction of second-degree murder. However, given that in many
       cases involving first-degree murder, the intent element is disputed, we suspect
       that more often than not, an instruction on second-degree murder will be proper.

Thus, an instruction on second-degree murder would be proper in this case if the intent element
was disputed and the evidence would support a second-degree murder conviction.



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       The intent required for first-degree premeditated murder is the intent to kill with
premeditation and deliberation. People v Taylor, 275 Mich App 177, 179; 737 NW2d 790
(2007); MCL 750.316(1)(1). Premeditation and deliberation require sufficient time to allow the
defendant to take a second look. People v Anderson, 209 Mich App 527, 537; 531 NW2d 780
(1995) (quotation marks and citation omitted). The intent required for second-degree murder is
malice, which is defined as “the intent to kill, the intent to cause great bodily harm, or the intent
to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” People v Goecke, 457 Mich 442, 463-464; 579
NW2d 868 (1998).

         As part of his argument regarding this claim of error, defendant asserts that the trial court
erroneously held that the prosecution was automatically entitled to an instruction on second-
degree murder solely on the basis that it was a necessarily included lesser offense of first-degree
murder. We are not convinced that this is true from the record. While the prosecutor asserted
such an argument in requesting the instruction, the trial court did not explain its decision when
granting the prosecutor’s request. Thus, it is not clear whether the trial court granted the request
on that basis. Regardless, the trial court’s decision to instruct the jury on second-degree murder
was proper because the intent element was disputed and there was evidence to support a second-
degree murder conviction. At trial, there was testimony that defendant carried his gun with him
at all times for protection. Numerous witnesses, including defendant, testified that defendant and
the victim were getting along on the day of the murder, despite their history of disagreements.
The shooting occurred after the victim interjected himself in a dispute between defendant and his
girlfriend. This evidence reasonably supports a finding that instead of killing the victim as part
of a premeditated plan, defendant did so impulsively after the dispute arose. See People v
Fletcher, 260 Mich App 531, 558 n 11; 679 NW2d 127 (2004) (holding that the trial court did
not err in instructing the jury on second-degree murder where premeditation was disputed and
there was evidence to support the second-degree murder charge). While the prosecutor argued at
trial that the shooting was premeditated, that element was certainly in dispute, and, as discussed,
there was evidence to support an instruction on second-degree murder. Accordingly, defendant
is not entitled to relief on this basis.

        Defendant next argues that he was denied a fair trial because the trial court did not
instruct the jury on the charge of voluntary manslaughter. We conclude that defendant waived
this claim of error. When a defendant fails to object or request a specific jury instruction, that
defendant waives any claim of instructional error and this Court will grant relief only when
necessary to avoid manifest injustice. People v Sabin (On Second Remand), 242 Mich App 656,
657-658; 620 NW2d 19 (2000). “When defense counsel clearly expresses satisfaction with a
trial court’s decision, counsel’s action will be deemed to constitute a waiver.” People v
Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011).

       In this case, defendant stated on the record numerous times that he did not want the jury
to be instructed on voluntary manslaughter. After the trial court agreed to give the second-
degree murder instruction, defendant’s trial counsel questioned whether the court thought it was
necessary for defendant to again state on the record that he still did not want the voluntary
manslaughter instruction. It appears that trial counsel was merely trying to place defendant’s
wishes on the record again because when the trial court indicated it would not give that


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instruction, trial counsel stated that it was “fine” because they “weren’t going to ask for” the
voluntary manslaughter instruction anyway.

        On appeal, defendant essentially argues that his initial waiver became void after the trial
court agreed to give the second-degree murder instruction. However, after the trial court stated
that it would not give a voluntary manslaughter instruction, trial counsel stated that “we” were
not going to ask for it anyway. Based on the record as a whole, we conclude that defendant did
not intend to request the voluntary manslaughter instruction as trial, and now uses the trial
court’s statement in an attempt to assert it as a claim of error. Moreover, trial counsel stated on
the record that he was satisfied with the instructions given, which did not include voluntary
manslaughter. Accordingly, we conclude that defendant waived this claim of error.

        Defendant next argues that the trial court erred by denying his motion for a directed
verdict on the charge of first-degree murder. This Court reviews de novo a trial court’s decision
on a motion for directed verdict to determine whether the prosecutor’s evidence, viewed in the
light most favorable to the prosecution, could persuade a rational trier of fact that the essential
elements of the crime were proven beyond a reasonable doubt. People v Abraham, 234 Mich
App, 640, 656; 599 NW2d 736 (1999).

        “First-degree premediated murder requires proof that the defendant intentionally killed
the victim and that the act of killing was premeditated and deliberate.” Id. Defendant asserts
that there was insufficient evidence that the killing was premediated. “Premeditation and
deliberation require sufficient time to allow the defendant to take a second look.” Anderson, 209
Mich App at 537. While there is no specific period of time that must pass for premeditation to
be found, “[o]ne cannot instantaneously premeditate a murder.” People v Plummer, 229 Mich
App 293, 305; 581 NW2d 753 (1998). Circumstantial evidence and reasonable inferences
arising from the evidence can constitute satisfactory proof of the elements of a crime. People v
Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). “Premeditation and deliberation may be
established by evidence of (1) the prior relationship of the parties; (2) the defendant’s actions
before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after
the homicide.” Abraham, 234 Mich App at 656 (internal quotation marks and citations omitted).

        The prosecutor presented sufficient evidence that could persuade a rational trier of fact
that the essential elements of the crime, specifically premeditation and deliberation, were proven
beyond a reasonable doubt. Witnesses testified that the day before the murder, defendant stated
that he was going to kill the victim if the victim disrespected him again. Defendant took his gun
to a family gathering at the home of Dorothy Weatherspoon, the mother of his girlfriend, giving
rise to an inference that defendant planned to kill the victim if the victim “disrespected” him at
the family gathering. The lapse in time between the first and subsequent shots fired at the
victim, as well as the number of shots, was also circumstantial evidence of premeditation and
deliberation. Defendant fired three to six shots at the victim as he chased him through the house;
defendant had time to think and aim at the victim for at least two of the subsequent shots. The
length of time between the first shot and the subsequent shots, even though within seconds of
each other, was long enough to afford a reasonable person time to take a second look at his
actions. Viewing the evidence in a light most favorable to the prosecutor, there was sufficient
evidence that could persuade a rational trier of fact that the elements of premeditation and


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deliberation were proven beyond a reasonable doubt, and the trial court did not err in denying
defendant’s motion for directed verdict.

        Defendant next argues that the prosecution failed to present sufficient evidence to prove
beyond a reasonable doubt that defendant did not act in self-defense. We disagree. Challenges
to the sufficiency of the evidence are reviewed de novo to “determine whether any rational trier
of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Russell, 297 Mich App 707, 721; 825 NW2d 623 (2012) (citation
omitted). “This Court reviews the evidence in the light most favorable to the prosecution.” Id.

       With the enactment of the Self-Defense Act (SDA), MCL 780.971 et seq., the Michigan
Legislature codified the circumstances in which a person not engaged in the commission of a
crime may use deadly force in self-defense without having the duty to retreat. Dupree, 486 Mich
at 708. Pursuant to MCL 780.972(1)(a), deadly force may be used when “[t]he individual
honestly and reasonably believes that the use of deadly force is necessary to prevent the
imminent death of or imminent great bodily harm to himself or herself or to another individual.”
When a defendant introduces evidence of self-defense “from which a jury could conclude that
the elements necessary to establish a prima facie defense of self-defense exist,” the prosecution
must prove beyond a reasonable doubt that the defendant did not act in self-defense. Dupree,
486 Mich at 709-710.

        The prosecution presented more than enough evidence to discount defendant’s claim of
self-defense. Defendant took his gun with him to the family gathering at Weatherspoon’s house
and witnesses testified that defendant and the victim were getting along before the gathering. At
the party, the victim never threatened defendant or had physical contact with him before
defendant fired the shots. Multiple witnesses testified that the victim was not armed when
defendant shot him and that the victim was trying to get away from defendant but defendant
followed the victim, continuing to shoot. The only testimony that defendant had reason to fear
for his life came from defendant’s testimony that the victim lurched at him with his hand in his
pocket, prompting defendant to believe that the victim had a firearm. But this testimony was in
conflict with other witness testimony that the victim’s hands were by his side and that the victim
was unarmed. “Witness credibility and the weight accorded to evidence is a question for the
jury, and any conflict must be resolved in the prosecution’s favor.” People v McGhee, 268 Mich
App 600, 624; 709 NW2d 595 (2005). Taking the evidence in the light most favorable to the
prosecutor, there was sufficient evidence to negate defendant’s self-defense claim. Russell, 297
Mich App at 721.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Kathleen Jansen
                                                            /s/ Karen M. Fort Hood




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