                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 20, 2015
               Plaintiff-Appellee,

v                                                                  No. 318508
                                                                   Wayne Circuit Court
ANTOINE LAMONT WILSON,                                             LC No. 13-003664-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions of first-degree murder,
MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f, two counts of felonious
assault, MCL 750.82, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. He was sentenced to life imprisonment without parole for his first-
degree murder conviction, two to five years’ imprisonment for his felon in possession of a
firearm conviction, two to four years’ imprisonment for each felonious assault conviction, and
two years’ imprisonment for his felony-firearm conviction. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        At approximately 11:00 a.m. or 11:30 a.m. on April 6, 2013, defendant traveled by cab to
3914 Garvin Street, Detroit, Michigan, where the victim, Ajena Peavy, lived. He had a loaded
revolver in his possession. According to defendant, he and Peavy had been in a committed
relationship for approximately two years and planned to marry in the summer of 2014. The
previous night, defendant had repeatedly called and texted Peavy—acknowledging on cross-
examination that he was not surprised to hear that he had sent her 64 text messages and had
called her 59 times—in order to “check[] in on her[,] see[] where she was at, who she was with
[sic] type of thing.” At approximately 10:00 a.m. the next morning, Peavy called defendant and
“was acting . . . different than she usually does[,] from cussing me out about calling her all the
[sic] night before.” After defendant spoke with Peavy, he texted Ladonna Hicks, Peavy’s
mother, to “check [Peavy’s] story.” In response to defendant’s text message, Hicks replied that
Peavy had spent the night at home; however, Peavy had actually left the house with her friend,
Jeremiah, around 1:00 a.m. After this communication with Hicks, defendant decided to go to
Hicks’s residence, where Peavy also lived.



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        When defendant arrived, he told Hicks that Peavy had told him to meet her at the house.
Peavy was not at home at the time, so Hicks invited defendant inside and called Peavy to confirm
whether defendant was supposed to meet her there. Peavy returned to the house several minutes
later and entered the living room, where defendant was waiting. After a brief conversation,
defendant and Peavy went onto the front porch. Hicks estimated that defendant and Peavy
remained on the porch for five to seven minutes. Jakhari Culver, Peavy’s brother, who was
home at the time, could hear them talking, calmly at first. Culver testified:

               So then afterwards my sister just -- you know, she told him that, you
       know, I’m not going through this anymore. Then she tried to go in the house, and
       then the next thing you know, he pulled a gun out, and she screamed. She said,
       “Momma.” She said, “Momma.” [sic] And then she put her hands up[,] trying to
       block the bullet that he had shot. And then she had -- he had took [sic] off three
       of her fingers. And then me and my mom got to the door. We tried to help her,
       but then he pointed the gun at the door. And I just froze[,] and I stood there, but
       then my mom pulled me back and closed the door. And that’s when I heard more
       gunshots. And [when we went outside,] we saw a bullet in her [stomach area],
       and [there] was one in her face.”

        Hicks also testified that she heard Peavy say, “Momma,” and then she heard gunshots as
she went to the front door. When Hicks reached the door, Peavy was lying on the porch, and
defendant was pointing the gun downward toward Peavy. When Hicks tried to assist Peavy,
defendant pointed the gun at Hicks, while Culver and Hicks’s grandson were standing in the
living room behind her. Hicks then stepped back and began closing the door. Hicks testified
that after shooting Peavy one more time, defendant “walked off the porch like nothing [had]
happened.”

         According to defendant’s testimony, Peavy acknowledged, while he and Peavy were
talking on the porch, that the man whom she was with the night before was her new boyfriend
and that she did not want to be with defendant anymore. Defendant explained that “basically
[he] lost it and pulled out [his] gun and shot” “when [he] heard the news of just suddenly being
let go like that” in light of “all [he] had been through.” He had learned approximately one week
before the incident that Peavy had had a miscarriage after she had become pregnant while living
with him, and he was notified a few days prior to the incident that his youngest son was sexually
and physically abused by the boyfriend of the son’s mother. Defendant stated that “[he] really
wasn’t in the right state of mind to know what [the bullet] was going to do” when he pulled the
trigger on the gun, stating that he had never shot a gun prior to the incident. Defendant testified
that he had no intention of shooting Peavy when he came to her house that morning, explaining
that he was carrying the gun—even though he was aware that it was illegal for him to do so due
to his previous felony conviction—for his safety in light of the fact that he had recently been
robbed.

         Additionally, defendant testified that he did not remember how many times he shot
Peavy, but that he did remember that she was standing up when he shot her. Defendant also did
not remember pointing the gun directly at Hicks before he continued to shoot Peavy. Defendant
testified that, after he shot Peavy, “[he] stood there for a second and tried to check her pulse, and
once [he saw] that she wasn’t there anymore, [he] just basically panicked and walked off.” He

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did not remember where the gun was when he walked away because he “was kind of . . . still in
shock and dazed from the whole thing.” The testimony of a neighbor, who lived two houses
down from the scene of the crime, confirmed that an African-American male who had fired a
gun at 3914 Garvin Street walked past his house and down the street after the shooting while
openly carrying a gun in his hand, although the neighbor could not identify defendant at trial.

        On March 27, 2014, after defendant filed his claim of appeal following his convictions
and sentencing, defendant filed a motion with this Court to remand this matter to the trial court
under MCR 7.211(C)(1). Defendant argued that an evidentiary hearing was required to
determine whether he had been denied the effective assistance of counsel, based on defense
counsel’s failed to ensure that defendant realized he could no longer negotiate a plea offer after
the final pretrial conference. This Court granted defendant’s motion to remand, stating that
defendant “may file a motion for a new trial in the trial court based on ineffective assistance of
counsel,” and “[t]he trial court shall conduct an evidentiary hearing and rule on the motion.”1 On
May 20, 2014, defendant filed a motion for a new trial in the trial court. On July 11, 2014, the
trial court held a Ginther2 hearing and denied defendant’s motion for a new trial. This appeal
followed.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first argues that defense counsel provided ineffective assistance of counsel by
failing to make it clear to defendant that he was precluded from accepting a plea offer after the
date of the final pretrial conference, by failing to participate in additional settlement negotiations
with the prosecution, and by failing to request an adjournment of the final conference in order to
ensure that defendant understood and appreciated the significant consequences of rejecting a plea
offer. We disagree.

        This Court reviews a trial court’s decision to grant or deny a defendant’s motion for a
new trial for an abuse of discretion, which “occurs when the trial court’s decision is outside the
range of principled outcomes.” People v Russell, 297 Mich App 707, 715; 825 NW2d 623
(2012) (internal quotation marks and citation omitted). “Whether a person has been denied the
effective assistance of counsel is a mixed question of fact and constitutional law. [This Court]
review[s] the trial court’s findings of fact at a Ginther hearing for clear error, and review[s]
questions of constitutional law de novo.” Id. (internal quotation marks and citation omitted). “A
finding is clearly erroneous when, although there is evidence to support it, the reviewing court,
on the whole record, is left with the definite and firm conviction that a mistake has been made.”
People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008)
(internal quotation marks and citation omitted).




1
 People v Wilson, unpublished order of the Court of Appeals, entered May 14, 2014 (Docket No.
318508).
2
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).


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        The right to effective assistance of counsel during a criminal trial is guaranteed by the
United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; People v
Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). The Sixth Amendment right to effective
assistance of counsel extends to plea negotiations. Missouri v Frye, ___ US ___; 132 S Ct 1399,
1408; 182 L Ed 2d 379 (2012); Lafler v Cooper, ___ US ___; 132 S Ct 1376, 1384; 182 L Ed 2d
398 (2012). In order to prove that defense counsel provided ineffective assistance of counsel,
defendant must demonstrate 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 defendant.” Heft, 299 Mich App at 80-81;
see also Vaughn, 491 Mich at 669. To establish that defense counsel’s representation fell below
an objective standard of reasonableness, defendant must show that counsel’s conduct was outside
the scope of professionally competent assistance under the circumstances. Vaughn, 491 Mich at
670. To prove that defense counsel’s deficient performance prejudiced defendant, defendant
must show that the outcome of the proceeding would have been different but for defense
counsel’s errors. Heft, 299 Mich App at 81; People v Lockett, 295 Mich App 165, 187; 814
NW2d 295 (2012). Defendant bears a heavy burden of proving ineffective assistance of counsel
because there is a strong presumption that defense counsel provided adequate representation.
People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). This Court may not substitute its
own judgment for that of defense counsel or second-guess defense counsel on matters of trial
strategy, as defense counsel has great discretion with respect to the trial tactics that he employs
while trying a case. People v Pickens, 446 Mich 298, 330; 521 NW2d 797 (1994); People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

        While a defendant does not have the right to receive a plea offer from the prosecution,
Lafler, 132 S Ct at 1387, “as a general rule, defense counsel has the duty to communicate formal
offers from the prosecution to accept a plea on terms and conditions that may be favorable to the
accused,” Frye, 132 S Ct at 1408. Thus, in Frye, “[w]hen defense counsel allowed the [plea]
offer to expire without advising the defendant or allowing him to consider it, defense counsel did
not render the effective assistance the Constitution requires.” Id. This Court has stated that
“[t]he decision to plead guilty is the defendant’s, to be made after consultation with counsel and
after counsel has explained the matter to the extent reasonably necessary to permit the client to
make an informed decision.” People v Corteway, 212 Mich App 442, 446; 538 NW2d 60
(1995), citing MRPC 1.2(a) and 1.4(b). Accordingly,

       [t]he test [for determining whether counsel provided effective assistance of
       counsel] is whether the attorney’s assistance enabled the defendant to make an
       informed and voluntary choice between trial and a guilty plea. Absent unusual
       circumstances, where a counsel has adequately apprised a defendant of the nature
       of the charges and the consequences of a plea, an informed and voluntary choice
       whether to plead guilty or go to trial can be made by the defendant without a
       specific recommendation from counsel. [Id.]

       Defendant argues in this case that his trial counsel’s performance rendered him unable to
make an informed and voluntary choice to go to trial. Defendant has not demonstrated that
defense counsel’s performance regarding plea negotiations was objectively unreasonable.
Vaughn, 491 Mich at 670. At the Ginther hearing, defense counsel provided the following
testimony:

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       I had extensive discussions with [defendant] concerning what his expectations
       were of a plea and what he would accept, and I did discuss this with the
       prosecutor. We were very, very far apart. We never got a formal offer, but I
       think we were -- they were looking around [sic] 30 years. [Defendant] was
       looking, as I remember, [for] something around 15 to 20, in that range there, and a
       possible murder 2.

Additionally, defense counsel confirmed that, at the final conference on June 11, 2013, the
prosecution indicated that it might make an offer of 30 to 60 years’ imprisonment in addition to
two years’ imprisonment for the felony-firearm charge, but that “[defendant] was not interested
in that offer.” Defense counsel acknowledged that he did not ask defendant any questions on the
record regarding that offer because he previously had “numerous discussions [with defendant]
about what he was willing to take,” and “there was no indication . . . [that] he was ever willing to
take 30 years.” Defense counsel also testified that he told defendant that the final conference
was the last day to accept a plea offer and that the case would proceed to trial after the hearing
was over. Likewise, defense counsel testified that he and defendant both signed the final
conference order, which included a statement in all capital letters that “[n]o pleas will be
entertained by the [c]ourt after this date,” and that defendant had no questions about the content
of the order when defense counsel asked. Defense counsel also stated that, “[a]t the final
conference, there was no doubt we were going to trial. When we walked in, he wanted to go to
trial. He didn’t want the offer.”

         Contrary to defense counsel’s testimony, defendant testified that he was only aware that
“the offer of the 30 plus 2 [was] on the table. At that time[,] I leaned over and I asked [defense
counsel] would there be any other offer before this trial actually started, and he leaned over and
told me that, yes, possibly, [there] could be something else before trial started.” Defendant also
testified that he did not get a chance to read the order before he signed it, explaining that he
would have notified defense counsel that he was willing to take an offer of “30 plus 2 years” if
he had actually read the order and understood that this was the last opportunity that he would
have to accept a settlement offer. Defendant also denied that he ever stated that the longest
minimum sentence he would accept was 15 years’ imprisonment, that he was not interested in
the 30- to 60-year sentence, and that he actually wanted to go to trial. On cross-examination,
defendant acknowledged that he never received a plea offer in writing. However, defendant
testified that “the day before [the] final conference, [defense counsel] came to see me in the
county jail, and the first offer that he said [the prosecution] offered was actually 35 plus 2. And
then[,] when we came to the final conference the next day, [the prosecutor] came down to 30
plus 2.”

        The trial court concluded that defense counsel’s testimony was “very convincing” and
defendant’s testimony was “totally incredible.” The trial court found that defense counsel had
met with the prosecutor and defendant and discussed potential plea offers, but that defendant had
expressed that he was unwilling to accept those offers. Thus, the trial court concluded that a
formal offer was never extended to defendant orally or in writing given defendant’s indication
that he was not willing to accept an offer. The trial court also found that the prosecution stated at
the final conference that defendant could plead guilty to second-degree murder and receive a
sentencing agreement of 30 years’ imprisonment plus two years’ imprisonment for the felony-
firearm charge, but that no offer was provided to defendant in writing because defendant did not

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express any interest in accepting that offer. Accordingly, the trial court denied defendant’s
motion for a new trial, concluding that

       defendant did receive effective assistance of counsel . . . , [defendant] was
       knowledgeable as to the fact that settlement negotiations had been endeavored by
       [defense counsel], to no avail, and . . . defendant knew that once the Final
       Conference had been completed, he was bound to undergo trial on the original
       charges brought against him.

        This Court will not resolve credibility issues anew, as “[c]redibility is a matter for the
trier of fact to ascertain.” People v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990).
Thus, given the testimony provided by defense counsel at the Ginther hearing, which the trial
court found to be credible, there is no indication that the trial court’s factual findings—including
that defense counsel had discussed settlement positions with defendant, that the prosecution did
not extend a formal settlement offer to defendant because he had indicated that he was not
interested in accepting an offer, and that defendant was aware that he could no longer negotiate a
settlement agreement after the final conference—were clearly erroneous. Dendel, 481 Mich at
130; Russell, 297 Mich App at 715. Consequently, defendant has failed to establish that defense
counsel’s performance fell below an objective standard of reasonableness, as the trial court’s
factual findings demonstrate that defense counsel kept defendant fully informed throughout the
process and enabled the defendant to make an informed and voluntary choice between trial and a
guilty plea. Corteway, 212 Mich App at 446.

        Further, given the trial court’s factual findings, defendant has failed to establish that there
is a reasonable probability that he was prejudiced by defense counsel’s performance under the
second prong of the ineffective assistance test. Heft, 299 Mich App at 80-81. To establish
prejudice “[i]n the context of pleas[,] a defendant must show [that] the outcome of the plea
process would have been different with competent advice.” Lafler, 132 S Ct at 1384; see also
People v Douglas, 496 Mich 557, 598; 852 NW2d 587 (2014) (citing Lafler). Contrary to
defendant’s arguments, the trial court found that defendant was aware of the deadline for plea
negotiations and still expressed no interest in the potential plea offer mentioned by the prosecutor
on the record during the final conference. Accordingly, there is not a reasonable probability that
the outcome of the final conference, i.e., proceeding to trial, would have been different had
defense counsel provided additional advice or requested an adjournment of the final conference.
Heft, 299 Mich App at 81. Likewise, given that the trial court found that defendant was
informed of the settlement negotiations and the deadline for accepting a plea offer, defendant has
not “show[n] that the result that did occur was fundamentally unfair or unreliable.” Lockett, 295
Mich App at 187. Therefore, because defendant has failed to demonstrate that defense counsel
provided ineffective assistance of counsel during the plea bargaining process and at the final
conference, the trial court did not abuse its discretion in denying defendant’s motion for a new
trial. Russell, 297 Mich App at 715.

                                 II. SUFFICIENCY OF THE EVIDENCE

       Next, defendant argues that there was insufficient evidence presented at trial for a
reasonable jury to find beyond a reasonable doubt that he killed Ajena Peavy with premeditation
and deliberation. We disagree.

                                                 -6-
        “In determining whether the prosecutor has presented sufficient evidence to sustain a
conviction, an appellate court is required to take the evidence in the light most favorable to the
prosecutor” and to ascertain “whether a rational trier of fact could find the defendant guilty
beyond a reasonable doubt.” People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010)
(quotations marks and citations omitted). “All conflicts in the evidence must be resolved in
favor of the prosecution and we will not interfere with the jury’s determinations regarding the
weight of the evidence and the credibility of the witnesses.” People v Unger, 278 Mich App
210, 222; 749 NW2d 272 (2008). “Circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.” People v Allen,
201 Mich App 98, 100; 505 NW2d 869 (1993). “[B]ecause it can be difficult to prove a
defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, which can be inferred from all
the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

        “The elements of premeditated murder are (1) an intentional killing of a human being (2)
with premeditation and deliberation.” People v Gayheart, 285 Mich App 202, 210; 776 NW2d
330 (2009), citing MCL 750.316(1)(a). Defendant challenges only the premeditation and
deliberation element of the offense. This Court has identified four types of evidence that may
establish premeditation: “(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.” Unger, 278 Mich App at 229 (citation omitted). Additionally, to support a
finding of premeditation and deliberation, the evidence must show that a period of time passed
between the moment at which the defendant developed the intent to kill and the moment of the
actual killing, but “the time required need only be long enough to allow the defendant to take a
second look.” Id. (internal quotation marks and citation omitted).

        First, drawing all reasonable inferences in favor of the prosecution, the parties’
relationship and defendant’s actions prior to the killing provided circumstantial evidence from
which a jury could draw a reasonable inference of premeditation and deliberation. Id at 229.
The evidence demonstrated that defendant and Peavy had been in a “committed relationship” for
two years prior to the incident, and that contention had arisen in their relationship in the 24 hours
prior to the killing. Defendant testified that he had called and texted Peavy numerous times
during the night before the killing, acknowledging that the numbers provided by the
prosecution—64 text messages and 59 phone calls—did not surprise him. Defendant’s
testimony regarding the messages and calls supports an inference that defendant conveyed
suspicion and anger in the text messages and phone calls. Moreover, immediately after speaking
to Peavy that morning, defendant admitted that he “tried basically [to] check [Peavy’s] story” by
texting Hicks. Defendant took a cab to Peavy’s home with a loaded gun even though he was
aware that it was illegal for him to carry a gun due to his prior felony conviction. Accordingly,
this sequence of events suggested that defendant had a motive for killing Peavy and supported an
inference of premeditation and deliberation. See, e.g., People v Fisher, 449 Mich 441, 453; 537
NW2d 577 (1995) (“In fact, numerous prior cases have upheld the admissibility of evidence
showing marital discord as a motive for murder, or as circumstantial evidence of premeditation
and deliberation.”); People v Herndon, 246 Mich App 371, 416; 633 NW2d 376 (2001) (stating
that a motive to kill may provide additional circumstantial evidence of a defendant’s
premeditation).


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         Second, the testimony provided by Hicks and Culver regarding the circumstances of the
killing supported a finding of premeditation and deliberation. Contrary to defendant’s assertion
that he “basically lost it and pulled out [his] gun and shot,” Culver’s testimony demonstrated that
the incident included periods of time, between the moment at which defendant developed the
intent to kill and the moment at which he shot Peavy, sufficient for defendant to take a second
look and to reflect on what he was doing. Unger, 278 Mich App at 229. Enough time passed for
Peavy to say “Momma,” get on her knees, and attempt to move backward before defendant fired
the first shot. Further, it appears from Culver’s testimony that the first gunshot removed three of
Peavy’s fingers but did not kill her, as Culver noticed that three of Peavy’s fingers were missing
while her hands were raised in front of her face. Defendant then fired additional gunshots, which
ultimately resulted in five gunshot wounds to Peavy. Furthermore, Hicks and Culver both
testified that when they attempted to intervene during the incident, defendant pointed the gun at
Hicks, Hicks stepped back and began to close the front door, and defendant then fired at least
one more shot at Peavy, further demonstrating that defendant had an additional opportunity to
stop and reconsider his actions before he continued to shoot Peavy.

        Third, defendant’s casual demeanor after the killing also supported an inference of
premeditation and deliberation, since the evidence demonstrated that he appeared unaffected by
the killing. Instead of appearing surprised or alarmed that he had killed the woman with whom
he had been in a “committed relationship,” or expressing any sort of emotion suggesting that he
had “basically lost it,” Hicks and Culver testified that defendant “walked off the porch like
nothing [had] happened.”

         At trial, defendant provided contrary testimony that “the shooting occurred quickly and
on a sudden impulse” due to the news that Peavy was ending their relationship, combined with
defendant’s recent knowledge of Peavy’s miscarriage and the abuse experienced by his son.
However, it is the jury’s role to determine the credibility of the witnesses and the weight that
should be afforded to the evidence presented at trial, People v Dunigan, 299 Mich App 579, 582;
831 NW2d 243 (2013), and this Court must “draw all reasonable inferences and make credibility
choices in support of the jury verdict,” Nowack, 462 Mich at 400. Therefore, reviewing the
evidence in the light most favorable to the prosecution, there was sufficient evidence presented at
trial for a reasonable jury to find that the prosecution proved the element of premeditation and
deliberation beyond a reasonable doubt. Id.

       Affirmed.

                                                            /s/ Jane M. Beckering
                                                            /s/ Kathleen Jansen
                                                            /s/ Mark T. Boonstra




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