                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 3, 2015
               Plaintiff-Appellee,

v                                                                   No. 321884
                                                                    Gogebic Circuit Court
MICHAEL DAVIN SMITH,                                                LC No. 2013-000147-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

       Defendant was convicted by a jury of voluntary manslaughter, MCL 750.321. He was
sentenced as a fourth-offense habitual offender, MCL 769.12, to 19 to 30 years in prison.
Defendant appeals as of right. We affirm.

        Defendant’s conviction arises from the beating death of fellow Ojibway Correctional
Facility prisoner Randolph Connor in January 2013. It appears that the beating was over a
gambling debt.

                            I. SUFFICIENCY OF THE EVIDENCE

       Defendant first argues that his voluntary manslaughter conviction should be reversed
because the prosecution failed to present sufficient evidence. We disagree.

       “We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “In determining whether the
prosecutor has presented sufficient evidence to sustain a conviction, [we are] required to take the
evidence in the light most favorable to the prosecutor” 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) (quotation marks and citation 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).

        “To prove voluntary manslaughter, the prosecution must prove that: (1) the defendant
killed in the heat of passion; (2) the passion was caused by adequate provocation; and (3) there
was no lapse of time during which a reasonable person could have controlled his passions.”


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People v Tierney, 266 Mich App 687, 714; 703 NW2d 204 (2005). The intent to kill or commit
serious bodily harm is an essential element of the crime of voluntary manslaughter. People v
Hess, 214 Mich App 33, 38; 543 NW2d 332 (1995).

         With regard to the first three elements, evidence was presented at trial from which a jury
could conclude that defendant’s actions resulted in Connor’s death, that it was done in the heat of
passion, and that there was no lapse in time in which a reasonable person could have controlled
the passion. Tierney, 266 Mich App at 714. Testimony related to the reality of prison life
specifically supported the heat of passion finding by the jury. We also conclude that there was
sufficient evidence to support the criminal intent element. “Because it is difficult to prove an
actor’s state of mind, only minimal circumstantial evidence is required.” People v McGhee, 268
Mich App 600, 623; 709 NW2d 595 (2005). Malice may be “inferred from evidence that the
defendant intentionally set in motion a force likely to cause death or great bodily harm.” People
v Mayhew, 236 Mich App 112, 125, 600 NW2d 370 (1999) quoting People v Djordjevic, 230
Mich App 459, 462; 584 NW2d 610 (1998). The videotape of the assault is sufficient in and of
itself to establish beyond a reasonable doubt that defendant intended to commit great bodily
harm. Without any overt aggressive action by Connor, defendant hit him twice in the head,
causing him to drop to the ground. The extreme and violent quality of the attack was further
demonstrated by defendant hitting Connor three more times in the head and viciously stomping
on his head three times as Connor lay motionless on the ground. Defendant did not stop
attacking Connor until he was pulled away by other prisoners. Defendant’s intent to do at least
great bodily harm can be inferred from the brutality of his behavior. See People v Roper, 286
Mich App 77, 86; 777 NW2d 483 (2009) (concluding that there was sufficient evidence to infer
that the defendant intended to commit great bodily harm where the defendant “stabbed [the
victim, then] followed [the victim] out of the trailer and began to kick and stomp on him while
taunting him”). Finally, to the extent defendant appears to argue that criminal intent was not
established because defendant did not confess, there is no requirement of a confession—criminal
intent may be established by circumstantial evidence because it is difficult to prove an actor’s
state of mind. McGhee, 268 Mich App at 623.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that he was denied the effective assistance of counsel because trial
counsel failed to object to certain testimony by a registered nurse, Emily Vukusich, and Connor’s
mother, Faye Connor. “[B]ecause the trial court did not hold an evidentiary hearing,” our review
“is limited to the facts on the record.” People v Wilson, 242 Mich App 350, 352; 619 NW2d 413
(2000). Whether a defendant received effective assistance of counsel is a mixed question of fact
and law. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). A trial court’s
findings of fact, if any, are reviewed for clear error, and we review the ultimate constitutional
issue arising from an ineffective assistance of counsel claim de novo. Id.

        To establish a claim of ineffective assistance of counsel, “a defendant must establish that
counsel’s representation fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012),
quoting Strickland v Washington, 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984)
(quotation marks omitted). The defendant must establish both prongs of this test to prevail on


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his claim of ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999). In addition, “to persuade a reviewing court that counsel was ineffective, a defendant
must also overcome the presumption that the challenged action was trial strategy[.]” Id. quoting
People v Johnson, 451 Mich 115, 124, 545 NW2d 637 (1996). It is strongly presumed that
defense counsel “rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Vaughn, 491 Mich at 670 (quotation marks and citation
omitted). “Decisions regarding what evidence to present, whether to call witnesses, and how to
question witnesses are presumed to be matters of trial strategy[.]” People v Horn, 279 Mich App
31, 39; 755 NW2d 212 (2008).

       Defendant’s theory of the case was that the prosecution was unable to prove the requisite
criminal intent, specifically that there was insufficient evidence to find that he intended to inflict
great bodily harm. Defendant argues that since Vukusich was not qualified as an expert, counsel
should have objected to her testimony that Connor’s quality of life would have been poor if he
had survived because “the brain tissue was already damaged irreversibly” and “he wouldn’t have
any brain function.” This testimony was arguably relevant in that the extreme severity of
Connor’s brain injury was circumstantial evidence of defendant’s intent to commit great bodily
harm. See Djordjevic, 230 Mich App at 462 (holding that malice may be “inferred from
evidence that the defendant intentionally set in motion a force likely to cause death or great
bodily harm”). However, the testimony was improper. Vukusich was not qualified as an expert
to offer the medical conclusion regarding Connor’s quality of life had he survived and her
conclusion certainly did not qualify as a lay witness’ perception under MRE 701. Not only did
defense counsel not object to Vukusich’s testimony, he asked no questions of the witness.

        Even though the specified testimony was improper, defendant cannot rule out counsel’s
lack of objection as a matter of defense trial strategy. Vukusich was one of nine medical
professionals to testify for the prosecution and her improper testimony was a single answer given
in the context of fairly brief testimony, the crux of which was Connor’s condition immediately
after the incident which claimed his life. “This Court will not second-guess counsel regarding
matters of trial strategy and will not assess counsel's competence with the benefit of hindsight.”
People v Henry, 239 Mich App 140, 148; 607 NW2d 767 (1999). Defendant also cannot
establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Vaughn, 491 Mich at 669 (quotation marks
and citation omitted). A doctor testified that Connor was ultimately declared brain dead
following surgery. Thus, even if Vukusich improperly offered a conclusion regarding his quality
of life had he survived, the error was harmless because there was other evidence that he had no
brain function. In addition, numerous other medical professionals testified that his physical
symptoms were indicative of a severe brain injury, that his condition was deteriorating from the
time he was removed from the prison, and that his prognosis was poor. In light of the cumulative
testimony admitted, Vukusich’s testimony did not affect the outcome of the proceeding.

        Even though we conclude that counsel should have objected to the introduction of the
photographs and much of the mother’s testimony, counsel’s errors do not support reversal of
defendant’s conviction because defendant cannot establish that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn, 491 Mich at 669 (quotation marks and citation omitted). The jury heard
testimony from several other witnesses who focused on Connor’s prison persona and the


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relationship between defendant and Connor. However, it was the videotape that offered the most
salient evidence regarding the incident. There is no basis to conclude that the result of the
proceeding would have been different without the disputed evidence and accordingly, the
ineffective assistance of counsel claim fails.

       Affirmed.

                                                         /s/ Jane E. Markey
                                                         /s/ Cynthia Diane Stephens
                                                         /s/ Michael J. Riordan




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