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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

June 28, 2016 

v No. 325975 

Wayne Circuit Court 

LULA MAE SMITH, LC No. 14-004304-FC 

 Defendant-Appellant. 

Before: MURPHY, P.J., and SAAD and BORRELLO, JJ. 

PER CURIAM. 

 Defendant appeals as of right her jury trial convictions of second-degree murder, MCL 

750.317, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the 

commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth 

habitual offender, MCL 769.12, to 20 to 30 years’ imprisonment for her second-degree murder 

conviction, three to five years’ imprisonment for her felon in possession of a firearm conviction, 

and two years’ imprisonment for her felony-firearm conviction. For the reasons set forth in this 

opinion, we affirm. 

I. FACTS 

 On April 13, 2013, defendant’s nephew, Brandon Smith, brought over dinner for 

defendant and her husband, Dennis Neubia. Brandon attempted to give the food to defendant, 

but defendant was asleep on the living room couch. Neubia then took the food from Brandon 

and threw it on the couch. Brandon told officers that defendant was upset with Neubia because 

Neubia had been stealing her medication and selling it in exchange for crack cocaine. 

 Early the next morning, Officer Anthony Byrd of the Detroit Police Department 

responded to a 911 call at defendant’s home. Defendant indicated that she had shot Neubia. 

Defendant led Byrd to a bedroom in the downstairs flat of the home. Upon entering the 

bedroom, Byrd observed Neubia lying face down on the floor. When Neubia was turned over, 

Byrd observed that Neubia had been shot once in the chest. 

 Two other officers, Cheryl Peoples and Gary Przybyla, spoke with defendant at the scene. 

When Peoples approached defendant, defendant was upset and asked, “am I going to jail?” 

Defendant told Przybyla that she was home alone with Neubia at the time of the shooting. As 

Przybyla was speaking with defendant, Neubia’s phone began to ring. Przybyla answered the 
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phone and began speaking with defendant’s sister, Debra Smith. Debra lived in the upper flat of 

the home and returned upon speaking with Przybyla. When she arrived, Debra led Przybyla 

upstairs to her bedroom. Przybyla then searched Debra’s room and discovered a .38 caliber 

revolver hidden underneath the mattress. The revolver had one spent casing and five live bullets. 

Debra testified that she did not place the weapon there. In a jailhouse phone conversation, 

defendant told Debra that “it was an accident.” During his closing argument, defense counsel 

argued that the evidence supported a finding that defendant accidentally discharged the firearm 

while in bed with Neubia. However, counsel did not request an accident instruction. 

II. ANALYSIS 

 Defendant first argues that there was insufficient evidence to support her second-degree 

murder and felony-firearm convictions. 

 We review de novo a challenge to the sufficiency of the evidence. People v Mayhew, 236 

Mich App 112, 124; 600 NW2d 370 (1999). In reviewing a challenge to the sufficiency of the 

evidence, we view the evidence in a light most favorable to the prosecution to determine whether 

a rational trier of fact could find that all of the essential elements of the crime were proven 

beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). 

 The elements of second-degree murder are as follows: (1) a death, (2) caused by an act of 

the defendant, (3) with malice, and (4) without justification. People v Goecke, 457 Mich 442, 

463-464; 579 NW2d 868 (1998). Malice is defined as the intent to kill, the intent to cause great 

bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the 

natural tendency of such behavior is to cause death or great bodily harm. Id. at 464. “The facts 

and circumstances of a killing may give rise to an inference of malice.” People v Flowers, 191 

Mich App 169, 176; 477 NW2d 473 (1991). 

 Defendant does not contest that her actions caused the death of Neubia. Rather, 

defendant contends that she accidentally killed Neubia and that the element of malice was not 

supported by sufficient evidence. Viewed in a light most favorable to the prosecution, a rational 

juror could have concluded beyond a reasonable doubt that defendant acted with either the intent 

to kill, intent to cause great bodily harm, or in wanton and willful disregard of the likelihood of 

death or great bodily harm. Goecke, 457 Mich at 464. The medical examiner testified that the 

victim died of a gunshot to the chest; the medical examiner explained that the gunshot was fired 

from a gun that was a distance of three to four feet away. In addition, police found a gun hidden 

under a mattress in the upstairs of the home, which was indicative of defendant’s consciousness 

of guilt. See People v Kowalski, 489 Mich 488, 508-509; 803 NW2d 200 (2011) (noting that 

concealment of evidence is probative of a defendant’s consciousness of guilt). Finally, 

Brandon’s statement to police that defendant was upset with Neubia for stealing her medication 

supported the inference that defendant had motive to kill Neubia. See People v Unger, 278 Mich 

App 210, 223; 749 NW2d 272 (2008) (“[a]lthough motive is not an essential element of the 

crime, evidence of motive in a prosecution for murder is always relevant.”). In short, on this 

record, there was sufficient evidence to support defendant’s conviction of second-degree murder. 

 There was also sufficient evidence to support defendant’s felony firearm conviction. 

“The elements of felony-firearm are that the defendant possessed a firearm during the 
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commission of, or the attempt to commit, a felony.” People v Johnson, 293 Mich App 79, 82-83; 

808 NW2d 815 (2011). Defendant does not dispute that she was in possession of a firearm, and 

as stated above, there was sufficient evidence to prove that defendant committed second-degree 

murder. Therefore, there was sufficient evidence to support defendant’s felony-firearm 

conviction. 

 Defendant next argues that the trial court erred when it allowed the prosecution to reopen 

proofs to introduce evidence of defendant’s prior felony conviction for purposes of the felon in 

possession of a firearm charge. 

 We review a trial court’s decision to reopen the proofs for an abuse of discretion. People 

v Herndon, 246 Mich App 371, 419; 633 NW2d 376 (2001). “An abuse of discretion occurs 

when the court chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” Unger, 278 Mich App at 217. 

 “Relevant in ruling on a motion to reopen proofs is whether any undue advantage would 

be taken by the moving party and whether there is any showing of surprise or prejudice to the 

nonmoving party.” Herndon, 246 Mich App at 420 (citations and quotation marks omitted). 

Here, before the prosecution moved to reopen proofs, defendant had already stipulated to the 

introducing of her prior felony conviction in order to establish that defendant was ineligible to 

possess a firearm at the time of Neubia’s death. Thus, defendant cannot show that she was 

surprised or prejudiced or that the prosecution was afforded an undue advantage when the trial 

court reopened proofs and the trial court did not abuse its discretion in so doing. Id. 

 Defendant next argues that she was denied her right to the effective assistance of counsel 

when trial counsel failed to request a jury instruction on the defense of accident. 

 Whether a defendant was denied the effective assistance of counsel involves a mixed 

question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 582; 640 NW2d 246 

(2002). We review constitutional issues de novo while a trial court’s findings of fact, if any, are 

reviewed for clear error. Id. at 583. “When no Ginther hearing has been conducted, our review 

[] is limited to mistakes that are apparent on the record.” People v Mack, 265 Mich App 122, 

125; 695 NW2d 342 (2005). 

 In order to prevail on an ineffective assistance of counsel claim, a defendant must show 

that counsel rendered deficient performance on an object standard and that there is a reasonable 

probability that, but for counsel’s deficient performance, “the result of the proceeding would 

have been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), citing 

Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). 

 “A criminal defendant has the right to have a properly instructed jury consider the 

evidence against him.” People v Mills, 450 Mich 61, 80-81; 537 NW2d 909 (1995), modified on 

other grounds, 450 Mich 1212 (1995). “The trial court’s role is to clearly present the case to the 

jury and to instruct it on the applicable law.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 

546 (2007). “Jury instructions must include all the elements of the offenses charged against the 

defendant and any material issues, defenses, and theories that are supported by the evidence.” 

Id. “Jury instructions are reviewed in their entirety, and there is no error requiring reversal if the 
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instructions sufficiently protected the rights of the defendant and fairly presented the triable 

issues to the jury.” Id. 

 In this case, during closing argument, defense counsel argued that the shooting was 

accidental, stating that the gun went off while defendant was lying in the same bed with the 

victim. However, defense counsel did not request an accident instruction. There was no 

strategic reason why counsel would have argued that the death resulted from an accident, yet at 

the same time fail to request an instruction on the defense of accident. When presenting a 

defense theory it is objectively reasonable to request instructions on that defense theory in order 

to present the theory to the jury as a whole. Thus, given that there was no strategic reason to 

justify counsel’s failure, counsel acted deficiently on an objective standard of reasonableness 

when he failed to request the instruction. Carbin, 463 Mich at 600. 

 Having concluded that counsel rendered deficient performance, we must proceed to 

determine whether counsel’s deficient performance prejudiced the defense. Id. This requires 

that we determine whether there is a reasonable likelihood that but for counsel’s failure to 

request the instruction, the result of the proceeding would have been different. Id. 

 Michigan Model Criminal Jury Instruction 7.1 requires a description of the accident that 

caused the death of the victim. M Crim JI 7.1. This Court has defined “accident” as “an event 

happening without any human agency, or if happening wholly or partly through human agency, 

an event which under the circumstances is unusual and unexpected by the person to whom it 

happens.” People v Hess, 214 Mich App 33, 37; 543 NW2d 332 (1995). 

 In this case, we cannot find that defendant has met his burden of proving that but for 

counsel’s failure, the result of the proceedings would have been different. Carbin, 463 Mich at 

600. The jury instructions which set forth the intent element of murder made it clear to the jury 

that a finding of accident would be inconsistent with a finding that defendant was guilty of 

second-degree murder. Simply stated, if the jury had doubts regarding whether defendant had 

the requisite malice for second-degree murder, it would have acquitted defendant of seconddegree murder. Instead, the jury found that defendant possessed a mental state greater than 

accidently shooting the victim. See, People v Hawthorne, 474 Mich 174, 184; 713 NW2d 724 

(2006); People v Lukity, 460 Mich 484; 596 NW2d 607 (1999); People v Rodriguez, 463 Mich 

466; 620 NW 2d 13 (200), (setting forth the principle that defendant has the burden of 

demonstrating that the failure to instruct on the accident defense undermined the reliability of the 

verdict). In conclusion, while defense counsel rendered deficient performance on an objective 

standard of reasonableness by failing to request an accident instruction, defendant has failed to 

show that counsel’s deficient performance prejudiced the defense and she is not entitled to a new 

trial. Carbin, 463 Mich at 600. Accordingly, defendant is not entitled to relief on this issue. 

 Finally, defendant argues that she is entitled to a new trial because trial counsel was 

denied the full allotment of peremptory challenges during voir dire. 

 We review unpreserved constitutional issues for plain error affecting defendant’s 

substantial rights. People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999). 
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 MCR 6.412 states that a defendant who is charged with an offense punishable by life 

imprisonment is entitled to 12 peremptory challenges. MCR 6.412(E). MCR 2.511(E) provides 

that peremptory challenges are to be exercised as follows: “[f]irst the plaintiff and then the 

defendant must exercise one or more peremptory challenges until each party successfully waives 

further peremptory challenges or all of the challenges have been exercised, at which point jury 

selection is complete.” MCR 2.511(E)(3)(a). When a party indicates a “pass,” the pass “is not 

counted as a challenge but is a waiver of further challenge to the panel as constituted at that 

time.” MCR 2.511(E)(3)(b). Because the right to peremptory challenges is provided by statute 

and court rule, the right is of non-constitutional dimension. Therefore, any error by the trial 

court does not entitle the defendant to automatic reversal. People v Bell, 473 Mich 275, 294-

295; 702 NW2d 128 (2005), opinion corrected on reh 474 Mich 1201 (2005). 

 A review of the record demonstrates that the trial court did not deny defense counsel her 

full number of peremptory challenges. During voir dire, defense counsel used peremptory 

challenges on two prospective jurors. Towards the end of voir dire, defense counsel passed on 

any further peremptory challenges and the trial court believed that the jury was empaneled. 

However, prospective juror 13 indicated that he had a scheduling conflict and could not serve. 

Prospective juror 13 was replaced and the new prospective juror was questioned by the 

prosecution. The prosecution and defense passed on any challenges to the new prospective juror, 

but the prosecution used a peremptory challenge on prospective juror nine. The replacement for 

prospective juror nine then read aloud her answers to her questionnaire. The prosecution then 

asked all of the prospective jurors if they had been the victims of domestic violence. After the 

prospective jurors answered, defense counsel asked if any of them had been married for 20 years 

or more. After hearing all of the answers, the trial court asked the prosecution and defense if 

they had any challenges for cause. After the prosecution and defense passed, the trial court 

stated, “this is our jury.” 

 While the trial court failed to ask if the parties wished to exercise any more peremptory 

challenges, defense counsel clearly indicated that he was satisfied with the jury and did not wish 

to make additional challenges. Defense counsel had time to raise any issues regarding 

peremptory challenges prior to the commencement of opening arguments and he did not do so. 

In sum, the trial court did not plainly err with respect to defendant’s peremptory challenges. 

 Affirmed. 

/s/ William B. Murphy 

/s/ Henry William Saad 

/s/ Stephen L. Borrello