                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 17, 2016
               Plaintiff-Appellee,

v                                                                   No. 327813
                                                                    Wayne Circuit Court
DAMIAN MARTEZ JONES,                                                LC No. 15-000558-01-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of first-degree premeditated murder,
MCL 750.316(1)(a), and possession of a firearm during the commission of a felony, MCL
750.227b. The trial court sentenced defendant to life imprisonment without parole for the
murder conviction, and a consecutive two-year term of imprisonment for the felony-firearm
conviction. We affirm.

        Defendant’s convictions arise from the October 4, 2013 shooting death of Ryan
Buchanan in Detroit. Witnesses Vinson Lewis, the decedent’s uncle, and Sherry Hart, an
acquaintance of defendant, each testified that defendant fired several shots at the decedent as the
decedent ran from the scene. Tianna Calloway, defendant’s girlfriend, testified that she saw
defendant on October 6, 2013, but then did not see him again for several months until she found
him living with relatives in Louisiana. Defendant presented a claim of self-defense. He testified
that he was riding in a car with Hart and Tiwaun Calloway, and that he shot the decedent one
time in self-defense after the decedent flagged down the car and pointed a gun at Tiwaun.

        For his first argument, defendant asserts that the trial court erred by denying his request
for a jury instruction on voluntary manslaughter, MCL 750.321, as a lesser-included offense of
murder. An issue of law arising from jury instructions is reviewed de novo, but a trial court’s
decision regarding the applicability of an instruction to the facts of the case is reviewed for an
abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).

        “[A]n inferior-offense instruction is appropriate only if the lesser offense is necessarily
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); see also People v
Smith, 478 Mich 64, 69; 731 NW2d 411 (2007). “Manslaughter is a necessarily included lesser
offense of murder.” Gillis, 474 Mich at 137. Thus, “when a defendant is charged with murder,
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an instruction for voluntary . . . manslaughter must be given if supported by a rational view of
the evidence.” Mendoza, 468 Mich at 541. However, where a trial court denies a request for a
jury instruction, reversal of the trial court’s decision is appropriate “only where the offense was
clearly supported by the evidence; an offense is clearly supported where there is substantial
evidence to support it.” People v McMullan, 488 Mich 922; 789 NW2d 857 (2010), citing
People v Silver, 466 Mich 386, 388; 646 NW2d 150 (2002). An appellate court is required to
review all evidence, regardless of who produced it, “to determine whether it provides a rational
view to support an instruction on a lesser charge.” McMullan, 488 Mich at 922.

        “The elements of voluntary manslaughter are: ‘(1) the defendant must kill in the heat of
passion, (2) the passion must be caused by an adequate provocation, and (3) there cannot be a
lapse of time during which a reasonable person could control his passions.’ ” People v
McMullan, 284 Mich App 149, 156; 771 NW2d 810 (2009), aff’d 488 Mich 922 (2010), quoting
People v Sullivan, 231 Mich App 510, 518; 586 NW2d 578 (1998). The provocation necessary
to reduce murder to manslaughter is “that which would cause a reasonable person to lose
control.” People v Tierney, 266 Mich App 687, 715; 703 NW2d 204 (2005) (citation omitted).

         Lewis testified that after the car in which defendant was riding stopped near the decedent,
defendant got out of the car and pointed an AK-47 at the decedent. The decedent put his hands
in the air, and then turned and ran from defendant. Defendant then fired several shots, and the
decedent fell to the sidewalk. Defendant testified that when the car stopped near the decedent,
Tiwaun exited and approached the decedent. The decedent drew a gun and pointed it at Tiwaun,
and stated that he intended to rob the group. Defendant stated that he then grabbed the AK-47,
exited the car, and took cover. He fired one shot after he heard the decedent’s gun click, and
after attempting unsuccessfully to fire more shots, he ran from the scene.

        The only evidence that defendant cites in support of his argument is his own. However,
defendant testified that he was armed as he crouched behind the car. He did not testify that the
decedent pointed a gun at him at any time. Defendant makes no effort to establish that his
reaction (as established by his own testimony) was one of a person who had lost control.
Tierney, 266 Mich App at 715. Even though manslaughter is a necessarily included lesser
offense of murder, a rational view of the evidence did not support the giving of an instruction on
manslaughter. Accordingly, the trial court did not err in denying defendant’s request for a
manslaughter instruction.

        Next, defendant argues that he is entitled to a new trial because the trial court failed to
instruct the jury that Tianna left the courtroom in the presence of deputies because she testified
pursuant to a witness detainer. Although defense counsel expressed concern that Tianna had left
the courtroom in the presence of deputies, he did not request any curative instruction by the trial
court. Therefore, this issue is not preserved for appellate review. People v Dupree, 486 Mich
693, 703; 788 NW2d 399 (2010). We review unpreserved issues for plain error (i.e., an error
that is clear or obvious) affecting defendant’s substantial rights (i.e., the error is outcome
determinative). People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

       Defendant cites no authority in support of his assertion that the trial court was required to
give a curative instruction to explain Tianna’s exit from the courtroom, and thus has failed to
meet his burden of establishing a plain error. Moreover, the trial court’s failure to give a curative

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instruction did not affect defendant’s substantial rights. Tianna was not an eyewitness to the
shooting, and thus, could not give an account of the events surrounding the shooting. She only
testified that defendant vanished after the shooting, and did not let her know of his whereabouts.
Her testimony could not be considered exculpatory for defendant. Under these circumstances,
the trial court’s failure to give a curative instruction was not outcome-determinative.

        Next, defendant argues that he is entitled to a new trial because the trial court’s conduct
pierced the veil of judicial impartiality. Defendant complains that (1) the trial court belittled
defense counsel when it characterized an argument made by defense counsel during closing
argument as having been made in “bad faith” because it was not based on facts in evidence, and
(2) the trial court improperly questioned witnesses, creating an appearance of advocacy in favor
of the prosecution.

         We review questions of constitutional law de novo. People v Stevens, 498 Mich 162,
168; 869 NW2d 233 (2015). But because defendant did not object to the trial court’s conduct at
trial, this unpreserved issue is reviewed for plain error affecting defendant’s substantial rights.
Carines, 463 Mich at 763-764.

        During closing argument, defense counsel questioned how the decedent happened to be
in the area where the shooting took place. Counsel stated, “Would it bother you, the jury, if you
were to look at these text messages on the phones in terms of who communicated with who, if
Mr. Lewis, if Mr. Lewis had said to his nephew, make sure you distract him until I get there so I
get a clean shot.” The prosecutor objected on the ground that counsel’s argument was not
supported by any evidence. Following a sidebar conference, the trial court instructed the jury to
disregard defense counsel’s statement, which the trial court characterized as a “bad-faith
question.”

       In Stevens, our Supreme Court stated:

               A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
       the veil of judicial impartiality. A judge’s conduct pierces this veil and violates
       the constitutional guarantee of a fair trial when, considering the totality of the
       circumstances, it is reasonably likely that the judge’s conduct improperly
       influenced the jury by creating the appearance of advocacy or partiality against a
       party. In evaluating the totality of the circumstances, the reviewing court should
       inquire into a variety of factors including, but not limited to, the nature of the trial
       judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
       conduct in the context of the length and complexity of the trial and issues therein,
       the extent to which the judge’s conduct was directed at one side more than the
       other, and the presence of any curative instructions, either at the time of an
       inappropriate occurrence or at the end of trial. [Stevens, 498 Mich at 164.]

        A trial court’s comment that is critical of or hostile to an attorney is generally insufficient
to pierce the veil of judicial impartiality. People v Jackson, 292 Mich App 583, 598; 808 NW2d
541 (2011). In this case, defendant does not dispute the trial court’s determination that defense
counsel’s statement was based on facts not in evidence. The trial court’s remark was isolated, it


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was made during a lengthy trial, and it was made in response to an improper statement by
defense counsel. Furthermore, during its final instructions to the jury, the trial court stated:

               It is my duty to see that the trial is conducted according to the law and to
       tell you the law that applies to this case. However, when I make a comment or
       give an instruction, I’m not trying to influence your vote or express a personal
       opinion about the case. If you believe that I have an opinion about how you
       should decide this case, you must pay no attention to that opinion. You are the
       only judges of the facts, and you should decide this case from the evidence.

Considering the totality of the circumstances, the trial court’s isolated remark did not pierce the
veil of judicial impartiality.

        Defendant also complains that his trial was tainted by the trial court’s continual
questioning of witnesses. It is well-established that “[t]he court may interrogate witnesses,
whether called by itself or by a party.” MRE 614(b). A court properly may question witnesses
to elicit additional relevant information or to clarify testimony. People v Conyers, 194 Mich
App 395, 404; 487 NW2d 787 (1992). However, the court cannot pierce the veil of judicial
impartiality. People v Davis, 216 Mich App 47, 50; 549 NW2d 1 (1996). In Stevens, 498 Mich
at 171, our Supreme Court stated:

       A judge’s conduct pierces this veil and violates the constitutional guarantee of a
       fair trial when, considering the totality of the circumstances, it is reasonably likely
       that the judge’s conduct improperly influenced the jury by creating the
       appearance of advocacy or partiality against a party.

        Defendant does not attempt to establish how the court’s questions improperly influenced
the jury. Although he seems to imply that the very fact that the trial court asked numerous
questions had that effect, a defendant cannot merely announce his position and leave it to this
Court to find and rationalize the basis for his claim. People v Payne, 285 Mich App 181, 195;
774 NW2d 714 (2009). Moreover, by failing to make any effort to show how the court’s
questions created the appearance of advocacy or partiality in favor of the prosecution, defendant
cannot meet his burden of establishing a plain error.

        In addition, when instructing the jury, the trial court told the jury that the court’s
“comments, rulings questions and instructions” were not evidence, and that the jury was not to
consider the trial court’s questions or statements as evidence. A jury is presumed to follow its
instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Thus, the record
does not support defendant’s assertion that it is reasonably likely that the trial court’s questioning
of witnesses influenced the jury to his detriment.

        Finally, defendant argues that a new trial is required because of defense counsel’s
ineffective assistance at trial. Because defendant did not move for a new trial or an evidentiary
hearing in the trial court, and this Court denied his motion to remand, our review is limited to
mistakes apparent on the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342
(2005). Counsel is presumed to have afforded effective assistance, and defendant bears the
burden of proving otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).

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To establish ineffective assistance of counsel, defendant must show that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms. Counsel
must have made errors so serious that he was not performing as the “counsel” guaranteed by the
federal and state constitutions. US Const, Am VI; Const 1963, art 1, § 20; People v Carbin, 463
Mich 590, 599; 623 NW2d 884 (2001). Counsel’s deficient performance must also have resulted
in prejudice. To demonstrate prejudice, defendant must show a reasonable probability that but
for counsel’s error, the result of the proceeding would have been different, id. at 600, and that the
result that did occur was fundamentally unfair or unreliable. People v Odom, 276 Mich App
407, 415; 740 NW2d 557 (2007).

        We reject defendant’s assertions that trial counsel was ineffective by (1) failing to object
or request a mistrial after the trial court characterized counsel’s remark during closing argument
as a “bad-faith question,” (2) failing to object to the trial court’s practice of questioning
witnesses, in particular Tianna, and (3) failing to move for a mistrial or request a curative
instruction after the jury saw Tianna leave the courtroom in the presence of deputies are without
merit. Counsel “is not required to advocate a meritless position.” People v Snider, 239 Mich
App 393, 425; 608 NW2d 502 (2000). As previously indicated, the trial court did not pierce the
veil of judicial impartiality by characterizing counsel’s remark as a “bad faith question.” In
addition, the trial court was entitled to question witnesses and defendant has not demonstrated
that the court’s questions pierced the veil of judicial impartiality by creating an appearance of
advocacy in favor of the prosecution. Further, the trial court’s failure to give a curative
instruction to explain Tianna’s departure from the courtroom did not constitute plain error. Any
objection or request for a mistrial under these circumstances would have been rejected.

        Defendant complains that trial counsel was ineffective for failing to object to the
prosecution’s use of his post-arrest silence and by failing to move for a Walker hearing1 to seek
exclusion of his statement to the police. These claims are also without merit. Defendant did not
remain silent after his arrest. On the contrary, he gave a statement to Detective Houser.
Defendant testified that the statement was made voluntarily, and he acknowledged that he did not
tell Houser that he fired at the decedent in self-defense. Because defendant waived his right to
remain silent and chose to give a statement, trial counsel was not ineffective by failing to make a
futile objection to the prosecution’s questions regarding defendant’s failure to tell Houser that he
fired in self-defense. Snider, 239 Mich App at 425.

        Trial counsel was also not ineffective for failing to obtain the transcripts from
defendant’s preliminary examination or from Tiwaun’s trial in order to impeach prosecution
witnesses. Trial counsel’s decision regarding what questions to ask a witness, and the failure to
question a witness, are matters of trial strategy and constitute ineffective assistance only when
the failure deprives the defendant of a substantial defense. People v Russell, 297 Mich App 707,
716; 825 NW2d 623 (2012). “ ‘A substantial defense is one that might have made a difference in
the outcome of the trial.’ ” People v Marshall, 298 Mich App 607, 612; 830 NW2d 414 (2012),



1
 A hearing pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965),
examines the voluntariness of a defendant’s statement to the police.


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vacated in part on other grounds 493 Mich 1020 (2013), quoting People v Chapo, 283 Mich App
360, 371; 770 NW2d 68 (2009).

         Defendant points to nothing in the testimony of Lewis from Tiwaun’s trial regarding the
alleged witness “O” or his refusal to view a lineup that could be considered exculpatory or that
might have made a difference in the outcome of his trial. Counsel’s failure to call Officer
Robinson did not constitute ineffective assistance because another witness, Officer Haines,
provided testimony about the location of evidence found at the scene. Defendant points to
nothing in Robinson’s testimony at Tiwaun’s trial that would have contradicted Haines’s
testimony in this trial. Counsel’s failure to ask Officer King whether the shooters drove by the
scene could not have made a difference in this trial because, on direct examination by the
prosecutor, King testified that Vinson informed her that the shooters were driving by the scene.
Counsel’s failure to point out that at Tiwaun’s trial Detective Houser testified that the decedent’s
gun was sent for testing, but that he made the opposite statement at defendant’s trial, would not
have been exculpatory. The undisputed evidence showed that the decedent owned the gun and
that no bullets found at the scene could have been fired from the decedent’s gun. And, defendant
testified and admitted that he shot the decedent. Defendant has not established a reasonable
probability that trial counsel’s failure to further question witnesses made a difference in the
outcome of the trial.

        Defendant’s argument that counsel rendered ineffective assistance by advising him to
take the stand and testify is also without merit. A criminal defendant has the right to testify in
his own defense. US Const, Ams V, VI, XIV. Trial counsel must inform a defendant of this
right, but the decision to testify belongs to defendant alone. People v Bonilla-Machado, 489
Mich 412, 419; 803 NW2d 217 (2011). The trial court questioned defendant regarding his
decision to testify and told defendant that the decision to testify was his alone, and defendant
stated on the record that he chose to testify. Defendant points to nothing in the record that
establishes that counsel’s advice was inadequate or prejudicial. Carbin, 463 Mich at 600.

       Affirmed.



                                                             /s/ Michael J. Kelly
                                                             /s/ Christopher M. Murray
                                                             /s/ Stephen L. Borrello




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