                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 16, 2018
                Plaintiff-Appellee,

v                                                                  No. 333936
                                                                   Wayne Circuit Court
JAMAL DEREK RIVERS,                                                LC No. 16-000197-01-FC

                Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right from his jury trial conviction of involuntary manslaughter,
MCL 750.321, for the shooting death of his wife, Kaiya Henderson-Rivers.1 Defendant was
sentenced as a fourth habitual offender, MCL 769.12, to 8 to 15 years in prison. We affirm his
conviction but remand for resentencing.

                                            I. FACTS

        On December 19, 2015, Henderson-Rivers was shot in the head during a physical
altercation that took place in the basement of defendant’s mother-in-law’s house. At the time of
the shooting, defendant and Henderson-Rivers were living in the basement with Myra Grantham
and her two young children, and Grantham and her children were present at the shooting.
Defendant and his wife had been engaged in a heated verbal argument which turned physical,
and at one point defendant retrieved his gun, and the pair ended up on a bed struggling over the
gun. Ultimately, Henderson-Rivers was shot in the head. Grantham testified that, after the gun
discharged, defendant stated, “I’m sorry. I love you. I’m sorry. I’m sorry. I never meant to do
this.” Defendant then told Grantham to call the police, and he took off his sweater and applied it
to Henderson-Rivers’s gunshot wound. When Grantham was too distraught to tell the 911
operator the address of the house, defendant took the telephone from her and went upstairs to tell
the 911 operator the address. Defendant did not return to the basement but went to his cousin’s
house after unloading the gun and throwing it into a yard. Henderson-Rivers was pronounced



1
    The jury acquitted defendant of second-degree murder and voluntary manslaughter.


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dead at the scene after the emergency personnel arrived. Defendant turned himself in to the
police the next morning.

                                         II. ANALYSIS

       Defendant first argues that he was denied the effective assistance of counsel because trial
counsel did not impeach Grantham at trial with inconsistent preliminary examination testimony.
We disagree.

        The question whether defense counsel rendered ineffective assistance is a mixed question
of fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
The trial court “must first find the facts, and then must decide whether those facts constitute a
violation of the defendant’s constitutional right to effective assistance of counsel.” People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court reviews the trial court’s
findings of fact for clear error. Trakhtenberg, 493 Mich at 47. Questions of constitutional law
are reviewed de novo. Id. Because defendant did not preserve this issue for review by moving
for a new trial or an evidentiary hearing on the ground that he was denied the effective assistance
of counsel, this Court’s review is limited to mistakes apparent from the record. People v Davis,
250 Mich App 357, 368; 649 NW2d 94 (2002).

        To establish a claim of ineffective assistance of counsel, a defendant must satisfy a two-
part test set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
(1984). See People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). “First, [a]
defendant must show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not performing as the ‘counsel’ guaranteed by
the Sixth Amendment.” Id. at 600, quoting Strickland, 466 US at 687. A defendant “must
overcome [a] strong presumption that counsel’s assistance constituted sound trial strategy.”
People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017) (citation and quotation marks
omitted). “Second, the defendant must show that the deficient performance prejudiced the
defense.” Carbin, 463 Mich at 600, citing Strickland, 466 US at 687. “To demonstrate
prejudice, the defendant must show the existence of a reasonable probability that, but for
counsel’s error, the result of the proceeding would have been different.” Carbin, 463 Mich at
600, citing Strickland, 466 US at 694.

        At trial, Grantham testified that she saw defendant on top of Henderson-Rivers on the
bed, with the gun pointing at Henderson-Rivers. Defendant argues that trial counsel should have
impeached this testimony with Grantham’s preliminary examination testimony that she did not
see the entire altercation because she had turned away to attend to her children, and that she was
only guessing at what happened. Defendant contends that such impeachment was crucial to his
defense because it would have caused the jury to question the credibility of Grantham’s
testimony at trial. However, a close review of Grantham’s preliminary examination testimony
confirms that it was not inconsistent with her trial testimony. For example, Grantham testified
consistently at both the preliminary examination and at trial that she did not see everything that
occurred during the altercation. Further, Grantham was not specifically asked during the
preliminary examination regarding the position of the gun during the altercation. Therefore,
Grantham’s trial testimony that the gun was pointed at Henderson-River’s head was not
inconsistent with her preliminary examination testimony. Trial counsel likely recognized this,

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and as a matter of trial strategy, declined to question Grantham regarding her testimony at the
preliminary examination. Counsel may also have reasonably concluded that it was advisable to
not draw further attention to any alleged distinction between Grantham’s preliminary
examination and trial testimony. “Decisions regarding what evidence to present, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy[.]” People
v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Therefore, defendant has not shown that
trial counsel’s performance was in any way deficient in declining to impeach Grantham at trial
with her preliminary examination testimony. Carbin, 463 Mich at 600.

        Defendant next argues that he is entitled to resentencing because Offense Variables (OV)
3 and 17 were scored erroneously. In its brief on appeal, the prosecution concedes the scoring
errors with regard to both OVs. We agree that OV 3 and OV 17 were scored erroneously where
the instant offense did not involve “the operation of a vehicle, vessel, ORV, snowmobile,
aircraft, or locomotive.” MCL 777.22(1); MCL 777.33(2)(c). Because the scoring errors altered
defendant’s appropriate minimum sentence guideline range, defendant is entitled to resentencing.
People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006).2
        Next, in a supplemental brief filed in propria persona pursuant to Administrative Order
2004-6, Standard 4, defendant argues that there was insufficient evidence at the preliminary
examination to bind over for trial on the second-degree murder charge. We disagree.

        A district court’s decision to bind over a defendant for trial is reviewed for an abuse of
discretion. People v Herrick, 277 Mich App 255, 256; 744 NW2d 370 (2007). Similarly, a trial
court’s decision in response to a motion to quash the information is reviewed for an abuse of
discretion. Id.

        “The purpose of a preliminary examination is to determine whether there is probable
cause to believe that a crime was committed and whether there is probable cause to believe that
the defendant committed it.” People v Perkins, 468 Mich 448, 442; 662 NW2d 727 (2003),
citing MCR 6.110. “Probable cause may be established by circumstantial evidence and
reasonable inferences arising from the evidence.” People v Lowery, 274 Mich App 684, 686;
736 NW2d 586 (2007). The elements of second-degree murder are “(1) a death, (2) the death
was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant
did not have lawful justification or excuse for causing the death.” People v Smith, 478 Mich 64,
70; 731 NW2d 411 (2007). “Malice is defined as the intent to kill, the intent to cause great
bodily harm, or the intent to do an act in wanton and willful 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, 464; 579 NW2d 868 (1998). “The prosecution is not required to prove that the
defendant actually intended to harm or kill[,] . . . [but] must prove the intent to do an act that is in



2
  While the prosecution argues that the trial court incorrectly assessed zero points for OV 6, and
should have assessed ten points, this issue is not properly before this Court where the prosecution
has not filed a cross-appeal. People v Stout, 116 Mich App 726, 736; 323 NW2d 532 (1982).




                                                  -3-
obvious disregard of life-endangering consequences.” People v Bergman, 312 Mich App 471,
487; 879 NW2d 278 (2015) (citation and quotation marks omitted).

        At the preliminary examination, Grantham testified that during a heated argument,
defendant walked toward Henderson-Rivers with a gun, and “took the side of the gun and
slapped it in there.” Grantham testified that she saw defendant on top of Henderson-Rivers on
the bed and that Henderson-Rivers “had [defendant] with her hands locked around his wrist.”
Grantham then heard the gun discharge. There was also evidence at the preliminary examination
that during the argument, defendant hit Henderson-Rivers on multiple occasions, walked toward
her with a loaded gun while slapping the cylinder of the gun in place, and ultimately struggled
with Henderson-Rivers on the bed while holding the gun, while he was on top of her. Put
simply, the jury reasonably could have inferred that defendant intended to kill Henderson-Rivers
or cause her great bodily harm. Goecke, 457 Mich at 464. At a minimum, the evidence showed
that defendant had the intent to do an act that was in obvious disregard of life-endangering
consequences. Bergman, 312 Mich App at 387. Therefore, we are not persuaded that the district
court abused its discretion in binding defendant over for trial on the second-degree murder
charge or that the trial court abused its discretion in denying his motion to quash the amended
information charging second-degree murder.

         Finally, defendant argues in his Standard 4 brief that the prosecution knowingly
presented perjured testimony at trial. Specifically, defendant argues that Grantham falsely
testified at trial that she saw the gun pointed at Henderson-Rivers. Because defendant failed to
preserve this issue alleging prosecutorial misconduct for review by objecting at trial, this Court
reviews this issue “for plain error affecting defendant’s substantial rights.” People v Bass, 317
Mich App 241, 272; 893 NW2d 140 (2016); People v Norfleet, 317 Mich App 649, 661; 897
NW2d 195 (2016).

        Defendant appears to imply that Grantham’s trial testimony must have been false because
she did not testify at the preliminary examination that she saw the gun pointed at Henderson-
Rivers. However, as noted above, a review of the preliminary examination transcript reflects
that Grantham was not specifically asked regarding the position of the gun when Henderson-
Rivers and defendant were struggling on the bed. Therefore, there is nothing in the record to
support defendant’s bare allegations that Grantham’s trial testimony was false or that she
perjured herself with the prosecution’s knowledge. Defendant has not shown a plain error that
affected his substantial rights. Bass, 317 Mich App at 272; Norfleet, 317 Mich App at 661.

                                      III. CONCLUSION

        We affirm defendant’s conviction, but remand for resentencing.         We do not retain
jurisdiction.



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



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