                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       August 17, 2017
                Plaintiff-Appellee,

v                                                                      No. 331509
                                                                       Macomb Circuit Court
ANDREW DARNELL WATTS,                                                  LC No. 2015-001522-FC

                Defendant-Appellant.


Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

        A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to life in prison for first-degree murder and two years’ imprisonment
for felony-firearm. Because defendant was not denied the effective assistance of counsel, we
affirm.

        This case arises out of the murder of Amir Hudson in his home on October 26, 2014.
Defendant and the victim had a personal relationship for three or four years and also had a sexual
relationship. The victim paid defendant to allow him to perform oral sex on defendant.
Although defendant allowed these acts, he was angered by them and acknowledged that he often
thought about killing the victim with the victim’s guns. On one occasion, when the victim
requested that defendant perform oral sex on him, defendant became enraged that the victim
would even think that he would want to perform the act. Defendant complied with the request,
but after the victim fell asleep, defendant took one of the victim’s guns, made sure it was loaded,
and shot the victim in the head while he slept. At trial, defendant argued that he shot the victim
on impulse and that the murder was not premediated.

        On appeal, defendant argues that he is entitled to a new trial because he was denied the
effective assistance of counsel. A claim for ineffective assistance of counsel is preserved by
raising the issue in a motion for a new trial or in a motion for a Ginther1 hearing in the trial court.
People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). There is nothing in the lower


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -1-
court record to indicate that defendant requested a new trial or a Ginther hearing. Thus these
issues are unpreserved. “Appellate review of an unpreserved argument of ineffective assistance
of counsel, like this one, is limited to mistakes apparent on the record.” People v Johnson, 315
Mich App 163, 174; 889 NW2d 513 (2016). “Whether a defendant has been deprived of the
effective assistance of counsel presents a mixed question of fact and constitutional law, and a
trial court’s findings of fact are reviewed for clear error, while questions of constitutional law are
reviewed de novo.” Id. (citations omitted).

       Counsel is presumed to be effective, and a defendant has a heavy burden to prove
otherwise. Id. “To establish ineffective assistance of counsel, ‘the defendant must show that (1)
defense counsel’s performance was so deficient that it fell below an objective standard of
reasonableness and (2) there is a reasonable probability that defense counsel’s deficient
performance prejudiced the defendant.’ ” Id., quoting People v Heft, 299 Mich App 69, 80-81;
829 NW2d 266 (2012). Prejudice to the defendant “can be shown by proving that there is a
‘reasonably probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015),
quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        Defendant claims that his trial counsel’s failure to object to the trial court’s omission of a
standard jury instruction regarding a witness’s prior inconsistent statements constituted
ineffective assistance of counsel. Defendant asserts that the testimony of Jennifer Sands, if
considered for its substance and not merely for impeachment value, was key to establishing
premeditation and that without it, the jury may have convicted defendant of the lesser-included
offense of second-degree murder.

         At trial, the prosecutor questioned Sands regarding defendant’s actions when he returned
to her house after the murder. After Sands testified that she did not remember defendant putting
a bag of clothes in her trash, the prosecutor questioned Sands regarding the contents of her
written statement that she gave to the police about a week after the murder, where she stated that
defendant came back to her house wearing different clothes than when he left and that he put a
bag of clothes in her trash after asking where her dumpster was. While defendant’s trial counsel
initially made several hearsay objections to questions regarding Sands’ conversation with the
police, he made no objections when the prosecutor questioned Sands regarding her written police
statement.

        The prosecution again introduced Sands’ police statement through the testimony of
Detective Paul Houtos. Defendant’s trial counsel made a hearsay objection, and the prosecutor
responded that the admission of the statement was for impeachment purposes. Trial counsel
argued that Sands did not deny making the statement, rather, she could not recall making the
entire statement. The trial court allowed Detective Houtos’ testimony regarding Sands’ written
statement, explaining that Sands denied some portions of the statement and did not remember
making others. The trial court did not give a jury instruction regarding a witness’ prior
inconsistent statement, and defense counsel did not make any objections to the jury instructions.

        “When a witness claims not to remember making a prior inconsistent statement, he may
be impeached by extrinsic evidence of that statement,” and the trial court should give a proper
limiting instruction that the statement can only be considered for impeachment purposes. People

                                                 -2-
v Jenkins, 450 Mich 249, 256, 263; 537 NW2d 828 (1995). However, if the prosecution
establishes a foundation for the statement as a past recollection recorded, the contents of the
statement may be considered as substantive evidence. See MRE 803(5).2

       In Jenkins, our Supreme Court ruled that the admission of a witness’ prior inconsistent
statement was not harmless error where, if considered for its substance, the statement would have
been extremely damaging to the defendant. Jenkins, 450 Mich at 265. The Court explained that,
unless a proper foundation was laid for admission of the statement as a past recollection
recorded, the statement should have been used for impeachment purposes only, and the trial
court should have given a proper limiting instruction to prevent the likelihood of the jury
considering the statement for substantive purposes. Id. at 266.

        Here, although the prosecutor did not use the phrase “past recollection recorded,” the
prosecutor established through questioning that Sands (1) had sufficient personal knowledge of
the matters addressed in her police statement, (2) was unable to sufficiently recall the details of
her statement due to memory issues stemming from seizures and the passage of time, and (3)
wrote her statement while the matter was still fresh in her memory. Thus, the prosecution laid a
proper foundation for admission of Sands’ prior inconsistent statement as a past recollection
recorded under MRE 803(5). Because Sands’ testimony regarding her police statement was not
offered for impeachment purposes, and a past recollection recorded may be considered as
substantive evidence, a jury instruction regarding the use of prior inconsistent statements for
impeachment purposes only would not apply. Accordingly, with regard to Sands’ testimony, a
request for such an instruction would have been improper and an objection based on the lack of
such an instruction would have been meritless, and therefore the failure to object does not
amount to ineffective assistance of counsel. See Johnson, 315 Mich App at 175 (“A defendant is
not denied the effective assistance of counsel by counsel’s failure to make a futile or meritless
objection.”).

        However, the prosecution also introduced Sands’ prior statement through Detective
Houtos for impeachment purposes. Accordingly, technically, the trial court should have
instructed the jury that Detective Houtos’ testimony should be considered for impeachment
purposes only. However, assuming counsel’s performance was deficient by failing to object,
defendant has failed to prove any prejudice. First, Sands’ prior statement already had been
admitted for its substance through Sands’ testimony as a past recollection recorded. Thus, the
jury was already permitted to consider the statement for substantive reasons. Second, contrary to
defendant’s assertion on appeal that Sands’ statement was “[t]he most important after-the-fact
evidence on concealment introduced at trial,” the most important and damaging evidence was the
recovery of the clothes themselves from Sands’ garbage bin. The clothes were found by the



2
  MRE 803(5), the exception for a past recollection recorded, “allows for the admission of a
hearsay statement contained in a writing if (1) the document pertains to matters about which the
declarant once had knowledge, (2) the declarant has an insufficient recollection of those matters
at trial, and (3) the document was made or adopted by the declarant while the matter was fresh in
his or her memory.” People v Chelmicki, 305 Mich App 58, 64; 850 NW2d 612 (2014).


                                                -3-
police; subsequent testing on the clothes showed that the DNA from the blood found on the shirt
matched that of the victim and the DNA from the shirt matched defendant. The jury did not need
Sands’ statement to make the (obvious) logical inference that defendant discarded his clothes
after returning from the victim’s home. Consequently, the failure to provide a limiting
instruction related to Sands’ prior statement plainly was not prejudicial.

         Defendant also argues that his trial counsel’s failure to object to the trial court’s omission
of the standard instruction for the order of deliberations, when there was a lesser-included
offense, constituted ineffective assistance of counsel. Defendant avers that this instruction was
critical because, without it, a juror may have thought it was necessary to acquit defendant of
first-degree murder before considering second-degree murder, rendering the juror unlikely to
raise an objection during deliberations, which destroyed defendant’s chance at succeeding on his
theory that the murder was not premeditated.

       During closing arguments, defense counsel argued that the victim’s murder was not
premeditated. Rather, defendant shot the victim on impulse after the victim asked defendant to
perform a sex act on him. Accordingly, the trial court gave the instruction for the lesser-included
crime of second-degree murder, stating,

       Second degree murder. The Defendant is charged with the crime of first degree
       premeditated murder. You may also consider the lesser charge of second degree
       murder.

However, the court did not give the model instruction for deliberations and verdict when there is
a less serious included crime, which provides:

       In this case, there are several different crimes that you may consider. When you
       discuss the case, you must consider the crime of [name principal charge] first. [If
       you all agree that the defendant is guilty of that crime, you may stop your
       discussions and return your verdict.] If you believe that the defendant is not
       guilty of [name principal charge] or if you cannot agree about that crime, you
       should consider the less serious crime of [name less serious charge]. [You decide
       how long to spend on (name principal charge) before discussing (name less
       serious charge). You can go back to (name principal charge) after discussing
       (name less serious charge) if you want to.] [M Crim JI 3.11(6) (brackets in
       original).]

Defendant’s trial counsel did not object to any of the jury instructions. After 40 minutes of
deliberation, the jury found defendant guilty of first-degree premediated murder and felony-
firearm.

         Defendant’s reliance on People v Handley, 415 Mich 356; 329 NW2d 710 (1982), is
misplaced. In Handley, the Supreme Court held that it was improper for the trial court to instruct
the jury that it had to unanimously acquit the defendant on the most serious charge before it
considered any less serious charge. Id. at 358-361. Instead, a jury must be “instructed that if it
fails to convict or acquit or is unable to agree whether to convict or acquit on [the more serious]
offense], it may then turn to lesser offenses.” Id. at 361. This mandate is consistent with the

                                                 -4-
latest model instructions. Importantly, the instruction also provides that “[i]f you all agree that
the defendant is guilty of that [more serious] crime, you may stop your discussions and return
your verdict.”

        Here, the trial court’s instruction merely apprised the jury of their option to convict
defendant of the less serious crime of second-degree murder. This instruction did not expressly
or impliedly instruct the jurors that they must first acquit defendant of first-degree murder before
considering the less serious offense. Hence, we hold that defendant cannot show how he was
prejudiced by the failure to provide the model instruction because, unlike in Handley, the jury
here was not instructed that it had to unanimously acquit before it considered the less serious
crime. Notably, “an imperfect instruction is not grounds for setting aside a conviction if the
instruction fairly presented the issues to be tried and adequately protected the defendant’s
rights.” People v Kowalski, 489 Mich 488, 501-502; 803 NW2d 200 (2011). In sum, defendant
has failed to show that he would have received a more favorable verdict had the requested
instruction been provided. Indeed, the requested instruction allows for a jury to not consider any
less serious charges once it determines that a defendant is guilty of the more serious offense.
The fact that the jury unanimously convicted defendant of first-degree murder makes it clear that
it did not have to consider the second-degree option. Therefore, defendant is not entitled to any
relief on this issue.

       Affirmed.



                                                             /s/ Henry William Saad
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael F. Gadola




                                                -5-
