            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2019
               Plaintiff-Appellee,

v                                                                  No. 339869
                                                                   Muskegon Circuit Court
ROYDERRICK LEVAN COLLIER,                                          LC No. 16-005035-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

        Defendant, Royderrick Collier, appeals as of right his bench trial convictions of first-
degree murder, MCL 750.316(1)(a); two counts of assault with the intent to do great bodily harm
less than murder, MCL 750.84; and three counts of possession of a firearm while committing a
felony (felony-firearm), MCL 750.227b. The trial court sentenced Collier as a fourth-offense
habitual offender, MCL 769.12, to life imprisonment without parole for the first-degree murder
conviction; 8 to 30 years’ imprisonment for each of the two counts of assault with intent to do
great bodily harm; and 5 years’ imprisonment for each of the three counts of felony-firearm.
Because there are no errors warranting reversal, we affirm.

                                       I. BASIC FACTS

        On June 18, 2016, Collier shot and killed Naethon Sims. Witnesses testified that Sims
was shot in the back and that, after Sims fell, Collier shot him again. Collier also shot but did
not kill Sims’s brother and Sims’s friend. At trial, Collier argued that he acted in self-defense.
He testified that while he was talking with Sims he saw Sims reach for his gun so he reached for
his gun. He stated that he then heard a gunshot, and responded by firing two times in Sims’s
direction without looking. Collier testified that he saw Sims running toward the street and it
seemed that he was running toward him. He said he heard another shot, so he shot in Sims’s
direction again. Yet, Collier added that he knew Sims was running away when he shot at him
and that he was 10 to 12 feet away when he fired the second round of shots. Collier also testified
that Sims’s brother came running at him and gestured like he had a weapon, so he fired two more
shots. He said that he did not know where those shots went and that he did not believe anyone
was shot. The day after the shooting he left the area and lived in Arizona for a couple of months
before being arrested.

                                  II. WAIVER OF JURY TRIAL

                                  A. STANDARD OF REVIEW

        Collier argues that his jury trial waiver was not a voluntary and understanding waiver.
“The adequacy of a jury trial waiver is a mixed question of fact and law.” People v Cook, 285
Mich App 420, 422; 776 NW2d 164 (2009). Generally, the trial court’s “factual findings are
reviewed for clear error, while its constitutional determinations are reviewed de novo.” People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). However, Collier failed to raise this
issue in the trial court; therefore it is unpreserved. This Court reviews unpreserved constitutional
issues for plain error affecting the defendant’s substantial rights. People v Carines, 460 Mich
750, 763-764; 597 NW2d 130 (1999).

                                          B. ANALYSIS

        “A criminal defendant has a constitutionally guaranteed right to a jury determination that
he is guilty beyond a reasonable doubt.” Cook, 285 Mich App at 422. A defendant may waive
his right to a jury trial with the approval of the trial court and the consent of the prosecutor. Id.;
MCR 6.401. However, “[i]n order for a jury trial waiver to be valid . . . it must be both
knowingly and voluntarily made.” Cook, 285 Mich App at 422.

       MCR 6.402(B) provides:

               Before accepting a waiver, the court must advise the defendant in open
       court of the constitutional right to trial by jury. The court must also ascertain, by
       addressing the defendant personally, that the defendant understands the right and
       that the defendant voluntarily chooses to give up that right and to be tried by the
       court. A verbatim record must be made of the waiver proceeding.

Compliance with the requirements of MCR 6.402(B) creates a presumption that the waiver was
knowing, voluntary, and intelligent. People v Mosly, 259 Mich App 90, 96; 672 NW2d 897
(2003).

        At a hearing, the trial court advised Collier that he had the constitutional right to choose
either a jury trial or a bench trial. The trial court asked for Collier’s lawyer’s recommendation.
Collier’s lawyer explained that he believed that Collier was much more knowledgeable than
some of his clients. Collier’s lawyer added that he and Collier had debated the pros and cons of
waiving a jury trial for a significant amount of time. As a result, Collier’s lawyer was
comfortable with Collier’s decision to proceed with a bench trial. The trial court then asked
Collier if he wished to “have a trial by the judge without a jury” and if he understood that he
would be giving up his right to a jury trial. Collier answered “yes” to each question. Contrary to
the requirements of MCR 6.402(B), the trial court did not inquire whether Collier’s waiver of his
right to a jury trial was voluntary. However, in Mosly, 259 Mich App at 96, this Court explained
that “compliance with the court rules only creates a presumption that a defendant’s waiver was
voluntary, knowing, and intelligent.” Thus, “[i]f a defendant’s waiver was otherwise knowingly,

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voluntarily, and intelligently made, reversal will not be predicated on a waiver that is invalid
under the court rules, because courts will disregard errors that do not affect the substantial rights
of a defendant. Id. (citations omitted). Here, Collier signed a written waiver of his right to a jury
trial that stated he was voluntarily waiving and relinquishing his right to a jury trial and was
electing a bench trial. As a result, “although the trial court failed to comply with MCR 6.402(B),
the record establishes that [Collier] understood that he had a right to a trial by jury and that he
voluntarily waived that right.” Id. at 99. Accordingly, Collier cannot demonstrate plain error
affecting his substantial rights.

                            III. SUFFICIENCY OF THE EVIDENCE

                                  A. STANDARD OF REVIEW

        Next, Collier contends that there is insufficient evidence to sustain his convictions
because the prosecution failed to disprove self-defense beyond a reasonable doubt.1 When
reviewing a sufficiency of the evidence claim, this Court reviews the evidence de novo. People v
Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014). This Court reviews “the evidence in a light
most favorable to the prosecution to determine whether a rational trier of fact could find that the
prosecution had proved the crime’s elements beyond a reasonable doubt.” Id. “Further, this
Court must defer to the fact-finder’s role in determining the weight of the evidence and the
credibility of the witnesses.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010).
“Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the
elements of the crime.” Id.

                                          B. ANALYSIS

        “The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” Id. “The killing of another person in self-defense is justifiable
homicide only if the defendant honestly and reasonably believes his life is in imminent danger or
that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to
prevent such harm to himself.” People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002).
“The touchstone of any claim of self-defense, as a justification for homicide, is necessity.” Id.
“[O]nce the defendant satisfies the initial burden of production, the prosecution bears the burden
of disproving the common law defense of self-defense beyond a reasonable doubt.” People v
Dupree, 486 Mich 693, 710; 788 NW2d 399 (2010).

       Collier asserts that he only fired after Sims brandished a gun and pointed it at him and
only after he heard gunshots. However, the trial court did not find that part of Collier’s
testimony credible and instead relied on the testimony of other witnesses, who stated that Sims
did not have a gun in his hand and who testified Collier walked up to and shot Sims a second
time after Sims fell to the ground following the first shots. There was also testimony that,
although Sims did have a gun in his pants, the gun was inoperable and could not be fired, which


1
 This issue was raised both in the brief filed by Collier’s lawyer and in Collier’s supplemental
brief that was filed pursuant to Supreme Court Administrative Order 2004-6, Standard 4.


                                                -3-
allows for an inference that Sims did not fire a gun at Collier. Further, Collier did testify that he
fired toward Sims while Sims had his back turned to him and was running away. Viewing the
above evidence in the light most favorable to the prosecution, there was sufficient evidence to
disprove that Collier was acting in self-defense when he shot and killed Sims.

                                   IV. DOUBLE JEOPARDY

                                  A. STANDARD OF REVIEW

        Next, Collier argues that his convictions for three counts of felony-firearm violate his
protections under the double jeopardy clause. “A challenge under the double jeopardy clauses of
the federal and state constitutions presents a question of law that this Court reviews de novo.”
People v Calloway, 469 Mich 448, 450; 671 NW2d 733 (2003). However, Collier failed to raise
this claim in the trial court so it is unpreserved and we review it for plain error. Carines, 460
Mich at 763.

                                          B. ANALYSIS

        “The double jeopardy clauses of the United States and Michigan constitutions protect
against governmental abuses for both (1) multiple prosecutions for the same offense after a
conviction or acquittal and (2) multiple punishments for the same offense.” Calloway, 469 Mich
at 450. Here, Collier presents a double jeopardy challenge on the basis of multiple punishments
for the same offense. In People v Morton, 423 Mich 650, 651; 377 NW2d 798 (1985), the
Michigan Supreme Court held that a defendant could be convicted of multiple counts of felony-
firearm arising out of separate felonies during a single transaction. Therefore, in this case, given
that Collier was convicted of three separate felonies—first-degree murder and two counts of
assault with intent to do great bodily harm—it was permissible for him to also be convicted of
three separate counts of felony-firearm. Collier’s double-jeopardy claim is wholly without merit.

                                       V. JUDICIAL BIAS

                                  A. STANDARD OF REVIEW

       Lastly, Collier argues that the trial court was biased against him. Because the issue is
unpreserved, our review is again for plain error affecting Collier’s substantial rights. Carines,
460 Mich at 763.

                                          B. ANALYSIS

        “A criminal defendant is entitled to a neutral and detached magistrate.” People v
Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011) (quotation marks and citation omitted).
However, a defendant raising a judicial bias claim “must overcome a heavy presumption of
judicial impartiality.” Id. at 597-598 (quotation marks and citation omitted).

        Collier claims that the trial judge exhibited bias by finding evidence of premeditation and
deliberation despite the lack of facts to support his findings. However, the court was required to
make factual findings, and, contrary to Collier’s insinuations on appeal, there was sufficient
evidence to support a finding of premeditation and deliberation given that witnesses testified that

                                                 -4-
Collier walked up to Sims after he had fallen to the ground and shot him a second time. Thus,
we discern no judicial bias in the judge’s findings. Next, Collier asserts that the judge
demonstrated judicial bias against him by finding him guilty of three counts of felony-firearm in
violate of the double-jeopardy clause. However, as explained above, Collier’s three felony-
firearm convictions are premised on the three separate felonies he committed with his firearm, so
they do not violate the double jeopardy clause. Lastly, Collier argues that the judge made
improper comments at sentencing about the judge’s personal dislike about the illegal use of
firearms show that the judge was biased against him. Collier does not explain how the trial
court’s generalized comments regarding gun violence in the community at his sentencing
deprived him of a fair trial and Collier does not claim that the judge was biased at sentencing.
Thus, under the circumstances present, Collier has failed to overcome the presumption of judicial
impartiality. Id.

       Affirmed.

                                                           /s/ Jane E. Markey
                                                           /s/ Michael J. Kelly
                                                           /s/ Brock A. Swartzle




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