                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 21, 2017
               Plaintiff-Appellee,

v                                                                   No. 328001
                                                                    Livingston Circuit Court
MARTIN EDWARD ZALE,                                                 LC No. 14-022392-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

        Defendant, Martin Edward Zale, appeals as of right his convictions following a jury trial
of second-degree murder, MCL 750.317, intentionally discharging a firearm from a motor
vehicle, MCL 750.234a, and two counts of possessing a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. The trial court sentenced him to serve concurrent terms
of 25 to 50 years’ imprisonment for second-degree murder and 32 months to 4 years’
imprisonment for intentionally discharging a firearm from a motor vehicle, as well as two
consecutive terms of two years’ imprisonment each for his two counts of felony-firearm. We
affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        Zale shot the victim, Derek Flemming, during a road-rage incident. According to Amy
Flemming, the victim’s wife, Derek was driving on Grand River Avenue when a truck pulled up
to a stop sign so quickly that she feared it would not stop. The truck pulled behind them onto
Grand River Avenue. It drove close to their vehicle, and Amy thought they would be rear-ended.
Derek attempted to get into the right lane to allow the truck to pass, but the truck passed them on
the right, sped up, pulled directly in front of them, and then slammed on its brakes. The truck
then accelerated to the speed limit and slammed on its brakes again. Derek appeared angry after
the second time.

         At a subsequent stop at an intersection, Derek put their vehicle into park, got out of the
car, and walked toward the truck. Amy saw Derek throw his hands in the air and say, “what the
****’s your problem.” She heard a popping noise and saw her husband’s head go back before he
fell to the ground. Everything happened quickly and she never saw her husband’s hands touch or
approach the truck.


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         According to Zale, as he drove on Grand River Avenue, his speed varied because the
vehicle in front of him was driving erratically. He was concerned because it seemed that the
vehicle behind him was chasing him through amber-colored lights. While stopped at an
intersection, he saw the driver of the vehicle behind him begin to approach Zale’s truck. The
driver began hitting Zale’s truck, and Zale rolled down his window and told him to stop. The
man rapidly approached Zale’s window, hit him in the side of the face while yelling and
screaming, and then reached for the inside handle of Zale’s door. Because Zale was afraid for
his life, he picked up his gun and shot the man. Zale believed the shooting was justified because
the man intended to inflict great harm on him.

         Bus driver Sue King testified that as she was turning onto Grand River, she saw Derek
walking toward a vehicle stopped in front of him. According to King, Derek appeared to be irate
and was gesturing with his hands as if to say “what were you thinking.” The driver’s side
window of the truck was up at that point. She never saw Derek touch the truck. She looked into
her rear view mirror because she thought there might be “an incident,” heard a gunshot, and saw
Derek fall backward. At that time, she thought Derek was one to two feet from the truck and she
could see daylight between it and Derek. Seven other witnesses at the intersection testified that
they never saw Derek touch or reach into the truck; some emphasized how quickly everything
had happened between Derek approaching the truck and the gunshot. However, Gerald Dinius
testified that he saw Derek with his hand on top of the truck’s rail while he was moving toward
the truck, and David Clevinger testified that when he confronted Zale shortly after the incident,
Zale explained that Derek had punched him in the face. Clevinger thought that the area under
Zale’s right eye looked puffy.

       Following deliberations, the jury found Zale guilty as previously described.

                           II. SUFFICIENCY OF THE EVIDENCE

        Zale argues that the prosecution failed to prove beyond a reasonable doubt that he did not
act in self-defense. We disagree.

        We review de novo a defendant’s claim that the evidence was insufficient to support his
or her conviction. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We
review the evidence “in a light most favorable to the prosecutor to determine whether any trier of
fact could find the essential elements of the crime were proven beyond a reasonable doubt.”
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). We must resolve any conflicts in the
evidence in the prosecution’s favor. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57
(2008).

        To establish that defendant committed second-degree murder, the prosecution was
required to prove that there was “(1) a death, (2) caused by an act of the defendant, (3) with
malice, and (4) without justification or excuse.” People v Reese, 491 Mich 127, 143; 815 NW2d
85 (2012) (quotation marks and citations omitted). A person may use deadly force against
another in self-defense if the person “honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent death of or imminent great bodily harm to himself or
herself or to another individual.” MCL 780.972(1)(a). Whether a person’s belief regarding the
use of force is reasonable “depends on what an ordinarily prudent and intelligent person would

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do on the basis of the perceptions of the actor.” People v Orlewicz, 293 Mich App 96, 102; 809
NW2d 194 (2011). The prosecution must disprove the defendant’s claim of self-defense beyond
a reasonable doubt. Reese, 491 Mich at 155.

        In this case, multiple witnesses testified that Derek did not touch the truck and that Zale
shot Derek the moment after he reached the driver’s side window. Other witnesses testified that
the window was up, and even Zale admitted that he rolled the window down. While some
witnesses testified that Derek had touched the truck or possibly hit Zale, when evidence
conflicts, it is the province of the jury to weight the conflicting evidence and reach a conclusion.
See Kanaan, 278 Mich App 619. This Court will not interfere with the trier of fact’s role to
determine the weight of the evidence or the credibility of the witnesses. Id. We conclude that
when viewing the evidence in the light most favorable to the prosecution, a reasonable juror
could have found beyond a reasonable doubt that Zale did not act in self-defense when he shot
Derek.

                            III. PROSECUTORIAL MISCONDUCT

       Zale argues that the prosecution improperly impeached three defense witnesses by
questioning them about arrests and convictions that did not involve theft or dishonesty. We
disagree.

        As an initial matter, Zale did not object to this conduct below. To preserve an issue, the
appellant must challenge it before the trial court on the same grounds as he or she challenges it
on appeal. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). Because this issue is
unpreserved, we will review it for plain error affecting the defendant’s substantial rights. People
v Carines, 460 Mich 750, 763-764, 597 NW2d 130 (1999). An error is plain if it is clear or
obvious and it affects the defendant’s substantial rights if it affected the outcome of the lower
court proceedings. Id.

        Generally, parties cannot attack or support a witness’s credibility by using extrinsic
evidence of specific instances of the witness’s conduct. MRE 608(b). However, MRE 609
allows a party to impeach a witness’s credibility by using extrinsic evidence of a prior conviction
if the conviction meets certain requirements, including if the crime contained an element of theft,
dishonesty, or false statement:

       For the purpose of attacking the credibility of a witness, evidence that the witness
       has been convicted of a crime shall not be admitted unless the evidence has been
       elicited from the witness or established by public record during cross-
       examination, and

               (1) the crime contained an element of dishonesty or false statement, or

               (2) the crime contained an element of theft, . . .

       Three witnesses offered general character testimony about Derek’s temper and how
intimidating he could be when angry. Regarding the two witnesses whom the prosecution
impeached with evidence of their arrests for domestic violence, neither of these arrests involved


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a conviction. Accordingly, by its language, MRE 609 does not apply, and the trial court did not
plainly err by admitting testimony of these arrests.

        The third witness offered general character testimony about Derek. The witness testified
that he was afraid of Derek during a confrontation in which Derek was angry about being
overcharged on a purchase. The prosecution impeached the witness with evidence that he had
been convicted of drunk and disorderly conduct, assault and battery, and attempted resisting and
obstructing a police officer, using the witness’s testimony to question whether the witness was
truly afraid of Derek during the confrontation. This impeachment plainly violated MRE 609
because the prosecution used convictions to impeach a witness and the convictions did not
involve dishonesty, false statement, or theft.

         However, we conclude that this error did not affect Zale’s substantial rights. The
testimony of this particular witness was cumulative to the testimonies of multiple witnesses who
testified that Derek had a temper, could become irate, would yell and swear, and that they were
afraid of him at those times. The improper impeachment of a single witness was unlikely to
affect the jury’s determination that Zale did not act in self-defense when he shot Derek.

                                  IV. JURY INSTRUCTIONS

         Zale contends that the trial court improperly issued the wrong self-defense jury
instruction. If defense counsel affirmatively approves the trial court’s jury instructions on the
record, defense counsel’s approval extinguishes any error and waives this Court’s review of the
issue. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Zale has waived our review
of this issue because defense counsel responded affirmatively when the trial court asked whether
counsel was satisfied with the instructions as given.

                       V. INEFFECTIVE ASSISTANCE OF COUNSEL

      Zale next argues that his trial counsel provided ineffective assistance in a variety of ways.
We disagree.

        A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review
for clear error the trial court’s findings of fact and review de novo issues of constitutional law.
Id. Because Zale did not receive a Ginther1 hearing, our review is limited to mistakes apparent
from the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).

        A criminal defendant has the fundamental right to effective assistance of counsel. US
Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039;
80 L Ed 2d 657 (1984). To prove that defense counsel was ineffective, the defendant must show
that (1) defense counsel’s performance fell below an objective standard of reasonableness, and
(2) there is a reasonable probability that counsel’s deficient performance prejudiced the


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


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defendant. Strickland v Washington, 466 US 668, 687-688, 694; 104 S Ct 2052; 80 L Ed 2d 674
(1984). See also People v Pickens, 446 Mich 298, 326; 521 NW2d 797 (1994). The defendant
must overcome the strong presumption that defense counsel’s performance constituted sound
trial strategy. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). A defendant was
prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been
different. Id. at 671.

        First, Zale contends that counsel should have moved for a change of venue because of
pretrial publicity. A change of venue is warranted if there was extensive, inflammatory publicity
such that jurors could not remain impartial after being exposed to it. People v Cline, 276 Mich
App 634, 639; 741 NW2d 563 (2007). However, “[w]hen a juror, although having formed an
opinion from media coverage, swears that he is without prejudice and can try the case impartially
according to the evidence, and the trial court is satisfied that the juror will do so, the juror is
competent to try the case.” Id. (quotation marks and citation omitted).

       In this case, the trial court asked each juror whether they had read anything or heard
anything about the case during voir dire. The court then asked each juror who had read or heard
about the case whether they could set aside any opinions they had formed and reach a conclusion
based only on the evidence. Those who answered under oath that they could were seated, and
those who said they could not were dismissed. Because Zale was tried only by those jurors who
were competent, he cannot establish that counsel’s decision not to move for a change of venue
prejudiced him.

        Second, Zale argues that counsel improperly agreed to the prosecutor’s request to call a
specific witness to testify about another witness’s arrest. Counsel’s decisions regarding what
witnesses to call and what evidence to present are matters of trial strategy. People v Horn, 279
Mich App 31, 39; 755 NW2d 212 (2008). Contrary to Zale’s argument, this witness’s
impeachment testimony did not violate MRE 609 because it involved an arrest, not a conviction.
Zale has not shown that counsel’s decision fell below an objective standard of reasonableness.

       Third, Zale argues that counsel was ineffective for failing to object to problems with the
jury instructions. A criminal defendant is entitled to a properly instructed jury. People v
Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014). Jury instructions must include “all
the elements of the charged offenses and any material issues, defenses, and theories that are
supported by the evidence.” People v McKinney, 258 Mich App 157, 162-163; 670 NW2d 254
(2003). Whether to request a particular jury instruction is a matter of trial strategy. See People v
Matuszak, 263 Mich App 42, 59-60; 687 NW2d 342 (2004).

      Zale argues that trial counsel should have requested that the trial court instruct the jury
with M Crim JI 7.16a, which provides in relevant part:

               (1) If you find both that—

             (a) the deceased was breaking and entering a dwelling or business, or
       committing home invasion, or had broke and entered or committed home invasion
       and was still present in the dwelling or business, or is unlawfully attempting to
       remove a person from a dwelling, business, or vehicle against the person’s will,

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       and

             (b) the defendant honestly and reasonably believed the deceased was
       engaged in any of the conduct just described

       ––you must presume that the defendant had an honest and reasonable belief that
       imminent [death / great bodily harm / sexual assault] would occur.

                                               ***

              (c) the defendant was engaged in the commission of a crime or using the
       dwelling, business premises, or vehicle to further the commission of a crime . . . .

        Contrary to Zale’s assertion, this instruction does not cover a situation in which a person
is breaking and entering a vehicle—it only covers a situation in which a person is “unlawfully
attempting to remove a person from a . . . vehicle against the person’s will . . . .” Zale testified
that Derek punched into his vehicle and was attempting to open the interior door handle. Zale
presented no evidence that Derek was attempting to remove him from his vehicle. Accordingly,
defense counsel acted reasonably by not requesting this instruction because it did not apply to the
facts of this case.

        Zale also argues that trial counsel should have challenged the trial court’s reading of M
Crim JI 7.18, which states that a person who started an assault on someone else with deadly force
or a dangerous or deadly weapon cannot claim to have acted in self-defense unless he or she
genuinely stopped the fight or assault and clearly let the other person know that he or she wanted
to make peace. The trial court altered this instruction by removing the phrase “with deadly force
or a dangerous weapon.”

        We conclude that Zale has not established that but for this alteration, the results of his
proceeding would have been different. A vehicle may be a dangerous or deadly weapon when it
is used to accomplish an assault. People v Goolsby, 284 Mich 375, 378; 279 NW 867 (1938).
Also see People v Sheets, 138 Mich App 794, 799; 360 NW2d 301 (1984) (holding that assault
with a dangerous weapon applied when the defendant drove the vehicle at the victims and then
applied the brakes with the intent of scaring them). The evidence in this case established that
Zale cut Derek off in traffic and drove recklessly in front of him by braking unpredictably, as if
to instigate an accident. While the trial court altered the language of the instruction, the
instruction remained applicable to the facts of the case, and the instruction as read accurately
represented the state of the law to the jury. We conclude that trial counsel did not act
unreasonably by failing to object to the instruction.

        Zale next contends that trial counsel was ineffective for failing to call an expert witness
on self-defense. However, the determination of whether a person believed that deadly force was
necessary to defend him- or herself must be made on the basis of “what an ordinarily prudent and
intelligent person would do on the basis of the perceptions of the actor.” Orlewicz, 293 Mich
App at 102. The determination of whether an ordinary person would have believed that deadly
force was necessary did not require scientific, technical, or other specialized knowledge.
Accordingly, we are not convinced that trial counsel’s decision not to employ an expert witness
was unreasonable or affected the outcome of Zale’s case.
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         Finally, Zale argues that counsel was ineffective for agreeing to strike the testimony of
witnesses to previous road-rage incidents because those witnesses could not identify Derek as the
person involved. Again, defense counsel’s decisions to call and investigate witnesses are matters
of trial strategy. Horn, 279 Mich App at 39. We reject appellate counsel’s suggestion that trial
counsel should have instead “prepared” the witness to identify Derek as the perpetrator when
there was no indication in the record that the witnesses were sure of that fact. We instead
conclude that trial counsel’s decision to strike those witnesses who could not affirmatively
identify Derek as the person with whom they were involved in road-rage incidents was
reasonable.

       We affirm.

                                                            /s/ Peter D. O’Connell




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