                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 28, 2016
               Plaintiff-Appellee,

v                                                                  No. 325975
                                                                   Wayne Circuit Court
LULA MAE SMITH,                                                    LC No. 14-004304-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

       Defendant appeals as of right her jury trial convictions of second-degree murder, MCL
750.317, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth
habitual offender, MCL 769.12, to 20 to 30 years’ imprisonment for her second-degree murder
conviction, three to five years’ imprisonment for her felon in possession of a firearm conviction,
and two years’ imprisonment for her felony-firearm conviction. For the reasons set forth in this
opinion, we affirm.

                                           I. FACTS

       On April 13, 2013, defendant’s nephew, Brandon Smith, brought over dinner for
defendant and her husband, Dennis Neubia. Brandon attempted to give the food to defendant,
but defendant was asleep on the living room couch. Neubia then took the food from Brandon
and threw it on the couch. Brandon told officers that defendant was upset with Neubia because
Neubia had been stealing her medication and selling it in exchange for crack cocaine.

       Early the next morning, Officer Anthony Byrd of the Detroit Police Department
responded to a 911 call at defendant’s home. Defendant indicated that she had shot Neubia.
Defendant led Byrd to a bedroom in the downstairs flat of the home. Upon entering the
bedroom, Byrd observed Neubia lying face down on the floor. When Neubia was turned over,
Byrd observed that Neubia had been shot once in the chest.

       Two other officers, Cheryl Peoples and Gary Przybyla, spoke with defendant at the scene.
When Peoples approached defendant, defendant was upset and asked, “am I going to jail?”
Defendant told Przybyla that she was home alone with Neubia at the time of the shooting. As
Przybyla was speaking with defendant, Neubia’s phone began to ring. Przybyla answered the

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phone and began speaking with defendant’s sister, Debra Smith. Debra lived in the upper flat of
the home and returned upon speaking with Przybyla. When she arrived, Debra led Przybyla
upstairs to her bedroom. Przybyla then searched Debra’s room and discovered a .38 caliber
revolver hidden underneath the mattress. The revolver had one spent casing and five live bullets.
Debra testified that she did not place the weapon there. In a jailhouse phone conversation,
defendant told Debra that “it was an accident.” During his closing argument, defense counsel
argued that the evidence supported a finding that defendant accidentally discharged the firearm
while in bed with Neubia. However, counsel did not request an accident instruction.

                                         II. ANALYSIS

      Defendant first argues that there was insufficient evidence to support her second-degree
murder and felony-firearm convictions.

        We review de novo a challenge to the sufficiency of the evidence. People v Mayhew, 236
Mich App 112, 124; 600 NW2d 370 (1999). In reviewing a challenge to the sufficiency of the
evidence, we view the evidence in a light most favorable to the prosecution to determine whether
a rational trier of fact could find that all of the essential elements of the crime were proven
beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).

        The elements of second-degree murder are as follows: (1) a death, (2) caused by an act of
the defendant, (3) with malice, and (4) without justification. People v Goecke, 457 Mich 442,
463-464; 579 NW2d 868 (1998). 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. Id. at 464. “The facts
and circumstances of a killing may give rise to an inference of malice.” People v Flowers, 191
Mich App 169, 176; 477 NW2d 473 (1991).

         Defendant does not contest that her actions caused the death of Neubia. Rather,
defendant contends that she accidentally killed Neubia and that the element of malice was not
supported by sufficient evidence. Viewed in a light most favorable to the prosecution, a rational
juror could have concluded beyond a reasonable doubt that defendant acted with either the intent
to kill, intent to cause great bodily harm, or in wanton and willful disregard of the likelihood of
death or great bodily harm. Goecke, 457 Mich at 464. The medical examiner testified that the
victim died of a gunshot to the chest; the medical examiner explained that the gunshot was fired
from a gun that was a distance of three to four feet away. In addition, police found a gun hidden
under a mattress in the upstairs of the home, which was indicative of defendant’s consciousness
of guilt. See People v Kowalski, 489 Mich 488, 508-509; 803 NW2d 200 (2011) (noting that
concealment of evidence is probative of a defendant’s consciousness of guilt). Finally,
Brandon’s statement to police that defendant was upset with Neubia for stealing her medication
supported the inference that defendant had motive to kill Neubia. See People v Unger, 278 Mich
App 210, 223; 749 NW2d 272 (2008) (“[a]lthough motive is not an essential element of the
crime, evidence of motive in a prosecution for murder is always relevant.”). In short, on this
record, there was sufficient evidence to support defendant’s conviction of second-degree murder.

      There was also sufficient evidence to support defendant’s felony firearm conviction.
“The elements of felony-firearm are that the defendant possessed a firearm during the

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commission of, or the attempt to commit, a felony.” People v Johnson, 293 Mich App 79, 82-83;
808 NW2d 815 (2011). Defendant does not dispute that she was in possession of a firearm, and
as stated above, there was sufficient evidence to prove that defendant committed second-degree
murder. Therefore, there was sufficient evidence to support defendant’s felony-firearm
conviction.

       Defendant next argues that the trial court erred when it allowed the prosecution to reopen
proofs to introduce evidence of defendant’s prior felony conviction for purposes of the felon in
possession of a firearm charge.

      We review a trial court’s decision to reopen the proofs for an abuse of discretion. People
v Herndon, 246 Mich App 371, 419; 633 NW2d 376 (2001). “An abuse of discretion occurs
when the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” Unger, 278 Mich App at 217.

        “Relevant in ruling on a motion to reopen proofs is whether any undue advantage would
be taken by the moving party and whether there is any showing of surprise or prejudice to the
nonmoving party.” Herndon, 246 Mich App at 420 (citations and quotation marks omitted).
Here, before the prosecution moved to reopen proofs, defendant had already stipulated to the
introducing of her prior felony conviction in order to establish that defendant was ineligible to
possess a firearm at the time of Neubia’s death. Thus, defendant cannot show that she was
surprised or prejudiced or that the prosecution was afforded an undue advantage when the trial
court reopened proofs and the trial court did not abuse its discretion in so doing. Id.

       Defendant next argues that she was denied her right to the effective assistance of counsel
when trial counsel failed to request a jury instruction on the defense of accident.

         Whether a defendant was denied the effective assistance of counsel involves a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 582; 640 NW2d 246
(2002). We review constitutional issues de novo while a trial court’s findings of fact, if any, are
reviewed for clear error. Id. at 583. “When no Ginther hearing has been conducted, our review
[] is limited to mistakes that are apparent on the record.” People v Mack, 265 Mich App 122,
125; 695 NW2d 342 (2005).

        In order to prevail on an ineffective assistance of counsel claim, a defendant must show
that counsel rendered deficient performance on an object standard and that there is a reasonable
probability that, but for counsel’s deficient performance, “the result of the proceeding would
have been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), citing
Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

       “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995), modified on
other grounds, 450 Mich 1212 (1995). “The trial court’s role is to clearly present the case to the
jury and to instruct it on the applicable law.” People v Dobek, 274 Mich App 58, 82; 732 NW2d
546 (2007). “Jury instructions must include all the elements of the offenses charged against the
defendant and any material issues, defenses, and theories that are supported by the evidence.”
Id. “Jury instructions are reviewed in their entirety, and there is no error requiring reversal if the

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instructions sufficiently protected the rights of the defendant and fairly presented the triable
issues to the jury.” Id.

        In this case, during closing argument, defense counsel argued that the shooting was
accidental, stating that the gun went off while defendant was lying in the same bed with the
victim. However, defense counsel did not request an accident instruction. There was no
strategic reason why counsel would have argued that the death resulted from an accident, yet at
the same time fail to request an instruction on the defense of accident. When presenting a
defense theory it is objectively reasonable to request instructions on that defense theory in order
to present the theory to the jury as a whole. Thus, given that there was no strategic reason to
justify counsel’s failure, counsel acted deficiently on an objective standard of reasonableness
when he failed to request the instruction. Carbin, 463 Mich at 600.

       Having concluded that counsel rendered deficient performance, we must proceed to
determine whether counsel’s deficient performance prejudiced the defense. Id. This requires
that we determine whether there is a reasonable likelihood that but for counsel’s failure to
request the instruction, the result of the proceeding would have been different. Id.

       Michigan Model Criminal Jury Instruction 7.1 requires a description of the accident that
caused the death of the victim. M Crim JI 7.1. This Court has defined “accident” as “an event
happening without any human agency, or if happening wholly or partly through human agency,
an event which under the circumstances is unusual and unexpected by the person to whom it
happens.” People v Hess, 214 Mich App 33, 37; 543 NW2d 332 (1995).

        In this case, we cannot find that defendant has met his burden of proving that but for
counsel’s failure, the result of the proceedings would have been different. Carbin, 463 Mich at
600. The jury instructions which set forth the intent element of murder made it clear to the jury
that a finding of accident would be inconsistent with a finding that defendant was guilty of
second-degree murder. Simply stated, if the jury had doubts regarding whether defendant had
the requisite malice for second-degree murder, it would have acquitted defendant of second-
degree murder. Instead, the jury found that defendant possessed a mental state greater than
accidently shooting the victim. See, People v Hawthorne, 474 Mich 174, 184; 713 NW2d 724
(2006); People v Lukity, 460 Mich 484; 596 NW2d 607 (1999); People v Rodriguez, 463 Mich
466; 620 NW 2d 13 (200), (setting forth the principle that defendant has the burden of
demonstrating that the failure to instruct on the accident defense undermined the reliability of the
verdict). In conclusion, while defense counsel rendered deficient performance on an objective
standard of reasonableness by failing to request an accident instruction, defendant has failed to
show that counsel’s deficient performance prejudiced the defense and she is not entitled to a new
trial. Carbin, 463 Mich at 600. Accordingly, defendant is not entitled to relief on this issue.

       Finally, defendant argues that she is entitled to a new trial because trial counsel was
denied the full allotment of peremptory challenges during voir dire.

       We review unpreserved constitutional issues for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999).




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        MCR 6.412 states that a defendant who is charged with an offense punishable by life
imprisonment is entitled to 12 peremptory challenges. MCR 6.412(E). MCR 2.511(E) provides
that peremptory challenges are to be exercised as follows: “[f]irst the plaintiff and then the
defendant must exercise one or more peremptory challenges until each party successfully waives
further peremptory challenges or all of the challenges have been exercised, at which point jury
selection is complete.” MCR 2.511(E)(3)(a). When a party indicates a “pass,” the pass “is not
counted as a challenge but is a waiver of further challenge to the panel as constituted at that
time.” MCR 2.511(E)(3)(b). Because the right to peremptory challenges is provided by statute
and court rule, the right is of non-constitutional dimension. Therefore, any error by the trial
court does not entitle the defendant to automatic reversal. People v Bell, 473 Mich 275, 294-
295; 702 NW2d 128 (2005), opinion corrected on reh 474 Mich 1201 (2005).

        A review of the record demonstrates that the trial court did not deny defense counsel her
full number of peremptory challenges. During voir dire, defense counsel used peremptory
challenges on two prospective jurors. Towards the end of voir dire, defense counsel passed on
any further peremptory challenges and the trial court believed that the jury was empaneled.
However, prospective juror 13 indicated that he had a scheduling conflict and could not serve.
Prospective juror 13 was replaced and the new prospective juror was questioned by the
prosecution. The prosecution and defense passed on any challenges to the new prospective juror,
but the prosecution used a peremptory challenge on prospective juror nine. The replacement for
prospective juror nine then read aloud her answers to her questionnaire. The prosecution then
asked all of the prospective jurors if they had been the victims of domestic violence. After the
prospective jurors answered, defense counsel asked if any of them had been married for 20 years
or more. After hearing all of the answers, the trial court asked the prosecution and defense if
they had any challenges for cause. After the prosecution and defense passed, the trial court
stated, “this is our jury.”

       While the trial court failed to ask if the parties wished to exercise any more peremptory
challenges, defense counsel clearly indicated that he was satisfied with the jury and did not wish
to make additional challenges. Defense counsel had time to raise any issues regarding
peremptory challenges prior to the commencement of opening arguments and he did not do so.
In sum, the trial court did not plainly err with respect to defendant’s peremptory challenges.

       Affirmed.



                                                            /s/ William B. Murphy
                                                            /s/ Henry William Saad
                                                            /s/ Stephen L. Borrello




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