           If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 May 9, 2019
              Plaintiff-Appellee,

v                                                                No. 343558
                                                                 Wayne Circuit Court
DERRIUS ALPHONZO HAYNES,                                         LC No. 08-008833-01-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and GADOLA and LETICA, JJ.

PER CURIAM.

       Defendant, Derrius Alphonzo Haynes, appeals by leave granted1 the trial court’s order
denying his motion for relief from judgment under Subchapter 6.500 of the Michigan Court
Rules. We affirm.

                                     I. BACKGROUND

      As this Court explained in People v Haynes, unpublished per curiam opinion of the Court
of Appeals, issued July 15, 2010 (Docket No. 291576), p 1:

               Defendant’s convictions arise from a drug transaction gone awry.
       Defendant purchased $3,200 worth of cocaine from Emmitt Rodgers and Cordell
       McCaroll, but was unsatisfied with the quality. Rodgers and McCaroll agreed to
       a refund, and Rodgers took back the cocaine, but the men were not prompt in
       returning defendant’s money. Shortly after midnight on May 19, 2008, as
       Rodgers and McCaroll exited the elevator in Rodgers’[s] apartment building and
       began walking to Rodgers’[s] apartment, defendant stepped out from behind a
       wall and pulled a gun from his pocket. Rodgers and McCaroll fled in different


1
 People v Haynes, unpublished order of the Court of Appeals, entered June 14, 2018 (Docket
No. 343558).



                                             -1-
       directions as defendant pointed the gun at them. Defendant then shot the gun,
       hitting McCaroll in the chest and killing him.

              Defendant did not deny his involvement in the underlying drug transaction
       and admitted at trial that he was present during the shooting. However, he
       claimed that Rodgers initiated the shooting by pulling a gun on him, and that the
       gun went off accidentally as he and Rodgers struggled for control of it.

        Defendant was charged with first-degree premeditated murder, MCL 750.316, assault
with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84, 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. The jury found defendant guilty of second-degree
murder, MCL 750.317, and guilty of all of the other charged offenses. Haynes, unpub op at 1.
This Court affirmed defendant’s convictions and sentences, rejecting defendant’s argument that
he was entitled to a mistrial or curative instruction because the prosecutor impeached defendant’s
testimony by referencing a notice of alibi that defendant filed and later withdrew before trial. Id.
at 1-4.

        The present appeal stems from a motion for relief from judgment filed by defendant in
2017. Among other issues, defendant contended that appellate counsel was ineffective for
failing to argue on direct appeal that the trial court abused its discretion by refusing a request by
defense counsel to instruct the jury on the lesser-included offense of common-law involuntary
manslaughter. The trial court found that appellate counsel was not ineffective because the
underlying jury-instruction issue was meritless. Defendant sought delayed leave to appeal in this
Court, and this Court granted the application.

                                  II. STANDARD OF REVIEW

        A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of
discretion, and any factual findings supporting the decision are reviewed for clear error. People
v Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010). “A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes,” or if the trial
court “makes an error of law . . . .” Id. at 628-629 (citations omitted).

                                         III. ANALYSIS

               A defendant in a criminal case may move for relief from a judgment of
       conviction and sentence. MCR 6.502(A). Such motions are governed by MCR
       6.500 et seq. These rules outline the procedure for how a trial court is to consider
       a motion for relief from judgment, identify the requirements that a defendant must
       establish to be entitled to relief, and limit the number of motions that a defendant
       may file. [Swain, 288 Mich App at 629.]

“A defendant has the burden to establish entitlement to relief. MCR 6.508(D).” Id. at 630. In a
number of circumstances, the court is precluded from granting relief. See MCR 6.508(D)(1), (2),
and (3). Relevant to this matter, a defendant is precluded from obtaining relief if the motion:



                                                -2-
       (3) alleges grounds for relief, other than jurisdictional defects, which could have
       been raised on appeal from the conviction and sentence or in a prior motion under
       this subchapter, unless the defendant demonstrates

       (a) good cause for failure to raise such grounds on appeal or in the prior motion,
       and

       (b) actual prejudice from the alleged irregularities that support the claim for relief.
       As used in this subrule, “actual prejudice” means that:

       (i) in a conviction following a trial, but for the alleged error, the defendant would
       have had a reasonably likely chance of acquittal;

       (ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo
       contendere, the defect in the proceeding was such that it renders the plea an
       involuntary one to a degree that it would be manifestly unjust to allow the
       conviction to stand;

       (iii) in any case, the irregularity was so offensive to the maintenance of a sound
       judicial process that the conviction should not be allowed to stand regardless of its
       effect on the outcome of the case;

       (iv) in the case of a challenge to the sentence, the sentence is invalid.

       The court may waive the “good cause” requirement of subrule (D)(3)(a) if it
       concludes that there is a significant possibility that the defendant is innocent of
       the crime. [MCR 6.508(D)(3).]

        In this case, defendant contends that he has demonstrated good cause because his
appellate counsel was ineffective for failing to argue on appeal that defendant was entitled to an
involuntary manslaughter instruction. “The requirement of ‘good cause’ can be established by
proving ineffective assistance of [appellate] counsel.” Swain, 288 Mich App at 631. “Effective
assistance of counsel is presumed, and a defendant bears a heavy burden to prove otherwise.” Id.
at 643. “To prove a claim of ineffective assistance of counsel, a defendant must establish that
counsel’s performance fell below objective standards of reasonableness and that, but for
counsel’s error, there is a reasonable probability that the result of the proceedings would have
been different.” Id.

         There are several reasons why defendant’s motion for relief from judgment must fail.
First, the motion is premised on the belief that the trial court improperly rejected a requested
instruction for involuntary manslaughter. A review of the record reveals that in a colloquy
regarding instructions, trial counsel asked for an instruction on negligent homicide that the trial
court declined. Subsequently, the court discussed the involuntary manslaughter instruction,
offered an initial concern that it was not applicable, and never returned to the issue. Therefore, if
the instruction is applicable to evidence in this case, the decision not to request the instruction
was made by trial counsel, not the court. Unless that failure is proven to be ineffective assistance
of trial counsel, appellate counsel had no basis to raise it on direct appeal and cannot be deemed
ineffective for not doing so. The trial court, not defense counsel, apparently then began looking

                                                 -3-
through other instructions for potentially applicable offenses. The trial court, not defense
counsel, stated that “[t]he other option is involuntary manslaughter.” After reading through the
instruction, the trial court expressed a belief that the instruction did not apply to the facts of the
case. The prosecutor agreed, stating that defendant’s theory of the case did not show gross
negligence. Defense counsel then stated, “I think the struggle qualifies.” This is the closest
defense counsel came to requesting an involuntary manslaughter instruction. The trial court did
not directly respond, however. Instead, the trial court read a different theory of involuntary
manslaughter, and then stated that this other theory “just doesn’t fit.” At that point, the trial
court told defense counsel that he “need[ed] to look over this[,]” clearly referencing the model
instruction for involuntary manslaughter. The trial court took a recess so that counsel could
obtain a copy of the model instruction from the prosecutor and review it. But after that recess,
the issue was not taken up with the trial court. Defense counsel later affirmatively expressed
agreement with the trial court’s instructions and verdict form, both of which omitted any mention
of involuntary manslaughter.

        Defendant’s motion for relief from judgment also fails because he was not entitled to an
instruction on common-law involuntary manslaughter. “[A]n inferior-offense instruction is
appropriate only if the lesser offense is necessarily included in the greater offense, meaning, all
the elements of the lesser offense are included in the greater offense, and a rational view of the
evidence would support such an instruction.” People v Mendoza, 468 Mich 527, 533; 664 NW2d
685 (2003). “[M]anslaughter is a necessarily included offense of murder because the elements of
manslaughter are included in the offense of murder.” Id. at 536. Thus, the question is whether a
rational view of the evidence would have supported an instruction on common-law involuntary
manslaughter.

        “Involuntary manslaughter is the unintentional killing of another, without malice, during
the commission of an unlawful act not amounting to a felony and not naturally tending to cause
great bodily harm; or during the commission of some lawful act, negligently performed; or in the
negligent omission to perform a legal duty.” Id. In this case, there were essentially two versions
of what occurred that were presented to the jury. Either defendant intentionally killed McCaroll,
or he accidentally killed McCaroll while struggling with Rodgers over a gun that Rodgers had
produced. Obviously, if defendant intentionally killed McCaroll, an involuntary manslaughter
instruction would not be applicable. At its core, involuntary manslaughter encompasses an
unintentional killing. Id. Thus, the question is whether defendant’s version of events would
support an involuntary manslaughter instruction.

        Arguably, defendant has abandoned the issue on appeal. While his brief asserts that
certain evidence aligns with the theory that the shooting occurred during a struggle with
Rodgers, defendant fails to explain how, precisely, these facts would support an involuntary
manslaughter instruction. In other words, defendant never explains how, if the jury believed
McCaroll was the victim of an accidental shooting resulting from the struggle between defendant
and Rodgers, this scenario would amount to involuntary manslaughter. “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims . . . .” People v Bosca, 310 Mich App 1, 33; 871 NW2d 307 (2015) (quotation marks
and citation omitted). Because defendant has failed to explain to the Court why he would have
been entitled to an involuntary manslaughter instruction, we could deem the issue abandoned.
People v Lopez, 305 Mich App 686, 694; 854 NW2d 205 (2014).

                                                 -4-
         We nevertheless find that defendant was not entitled to the instruction. As explained,
there are three forms of common-law involuntary manslaughter: (1) an unintentional killing that
occurs during the commission of an unlawful act that is not a felony; (2) a negligent killing that
takes place during the commission of a lawful act, or (3) death that occurs as the result of one’s
failure to perform a legal duty. Mendoza, 468 Mich at 536. Defendant’s version of events is that
he was lawfully attempting to protect himself from Rodgers after Rodgers produced a handgun.
This would only potentially fit the second form of involuntary manslaughter, i.e., a negligent
killing that occurs during the commission of a lawful act. The degree of negligence needed to
establish this form of involuntary manslaughter is gross negligence. People v Holtschlag, 471
Mich 1, 16-21; 684 NW2d 730 (2004); People v Head, 323 Mich App 526, 532; 917 NW2d 752
(2018). “Gross negligence means wantonness and disregard of the consequences that may
ensue.” Head, 323 Mich App at 532. “Wantonness exists when the defendant is aware of the
risks but indifferent to the results; it constitutes a higher degree of culpability than recklessness.”
Id. Gross negligence ultimately requires proof of three elements:

       (1) Knowledge of a situation requiring the exercise of ordinary care and diligence
       to avert injury to another[,]

       (2) Ability to avoid the resulting harm by ordinary care and diligence in the use of
       the means at hand[, and]

       (3) The omission . . . to use such care and diligence to avert the threatened danger
       when to the ordinary mind it must be apparent that the result is likely to prove
       disastrous to another. [Id. (quotation marks and citation omitted).]

        Again, defendant’s theory of the case was that Rodgers produced a gun, and that in an
effort to protect himself from being shot, defendant engaged in a struggle with Rodgers over the
gun. During this struggle, the gun accidentally fired, striking McCaroll and killing him. Nothing
about this scenario would indicate any form of gross negligence by defendant. Rather, if
believed, defendant’s theory of the case would show that McCaroll’s death was entirely
accidental, at least as it relates to defendant. Rodgers introduced a deadly weapon into the
situation, and defendant was only trying to prevent it from being fired. This does not
demonstrate gross negligence on the part of defendant. Accordingly, an involuntary
manslaughter instruction would not have been warranted.

        As such, defendant has not met his burden to demonstrate entitlement to relief from
judgment. He was not entitled to an involuntary manslaughter instruction at trial, and thus, there
is no underlying error. Further, even if there was an error, it was not the trial court’s error;
rather, defense counsel appears to have chosen not to request the instruction. Still, had the issue
been raised by appellate counsel on direct appeal, it would have failed for the reasons stated.
Appellate counsel’s failure to advance a meritless argument cannot be deemed ineffective
assistance of counsel. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Without establishing ineffective assistance of appellate counsel, defendant fails to demonstrate
good cause under MCR 6.508(D)(3)(a). For all of these reasons, the trial court did not abuse its
discretion by denying the motion for relief from judgment. MCR 6.508(D).



                                                 -5-
Affirmed.




                  /s/ Cynthia Diane Stephens
                  /s/ Michael F. Gadola
                  /s/ Anica Letica




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