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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 24, 2017

v No. 328764 Ingham Circuit Court RICARD WALTER TAYLOR, LC No. 14-000938-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and S TEPHENS and O’B RIEN , JJ.

P ER C URIAM

.

A jury found defenda nt, Ricard Walter Tayl or, who suffers from schizophrenia, guilty but mentally ill of two counts of first-degree murder, MCL 750.316, one count of carrying a concealed weapon, MCL 750.227, two counts of carrying a weapon with unlawful intent, MCL 750.226, and two counts of possession of a firearm during the c ommission of a felony, MCL

750.227b. The trial court sentenced defendant to concurrent se ntences of life in prison without the possibility of parole for the murder convictions and 40 to 60 months in prison for the carrying convictions and to a tw o-year consecutive sentence for the possession conviction. He appeals as of right. We affirm.

Defendant’s convictions arise o ut of the shooting deaths of Mi chael Addo and Jordan Rogers. On May 12, 2014, defendant shot and killed Addo, a pha rmacist at a Rite Aid in Lansing, Michigan, and Rogers, his neighbor in East Lansing, Mi chigan. Defendant claimed that he had delusions and hallucinations regarding Addo’s and Rogers ’s identities and intentions at the time of the shootings. Thus, the primary issue presented t o the jury at trial was whether defendant was legally insane when he committed the crimes at is sue. As reflected by the verdicts, the jury found that defendant was guilty but mentally ill, not legally insane. On appeal, defendant challenges the jury’ s conclusion in this regard.

This Court reviews a defendant ’s sufficiency challenge de novo

. People v Meissner , 294 Mich App 438, 452; 812 NW2d 37 (2011). In reviewing such a cha llenge, this Court views the record in a light most favorable to the prosecution to determin e whether a rational factfinder could have found each of the essential elements of the charged offenses beyond a reasonable

doubt. Id . In doing so, we are “required to draw all reasonable inferen ces and make credibility choices in support of the jury verdict.” People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). When a defendant’s sufficiency challenge is premised o n the jury’s rejection of his or-2- her insanity defense, our inquiry is whether sufficient evidenc e was presented so that a rational

factfinder could have found that t he defendant was not legally insane at the time of the crimes at

issue. People v McRunels , 237 Mich App 168, 182; 603 NW2d 95 (1999).

MCL 768.21a(1) provides, in pertin ent part, that “[i]t is an a ffirmative defense to a prosecution for a criminal offense that the defendant was legal ly insane when he or she committed the acts constituting the offense.” The defendant be ars the burden of proving his or her insanity by a preponderan ce of the evidence. MCL 768.21a(3 ); People v Lacalamita , 286 Mich App 467, 470; 780 NW2d 311 (2009). Once a defendant produ ces evidence supporting his or her insanity claim, “[t]he pr osecution is not shouldered wit h the burden of proving the failure

of an affirmative defense.” People v Mette , 243 Mich App 318, 330; 621 NW2d 713 (2000). Stated differently, when a defendant “produces evidence of the elements of a defense, then the question whether the defendant h as asserted a valid defense is for the jury to decide.” People v

Kolanek , 491 Mich 382, 411-412; 817 NW2d 528 (2012). In doing so, a j ury is not bound by an expert’s opinion. People v Kanaan , 278 Mich App 594, 620; 751 NW2d 57 (2008).

In this case, the parties each presented the testimony of witn esses who were qualified as experts in forensic psychology: D r. Ellen Garver for defendant , and Dr. Jeffrey Wendt for the prosecution.

Defendant’s expert witness, Dr. Garver, testified that she rev iewed a variety of materials prior to interviewing defendant, including the court order requ esting the evaluation, the police report, supplemental reports prepared by law enforcement, witne ss statements, a video of defendant’s interrogation, “most but not all” of defendant’s me ntal health records, and the results of psychological testing that was performed on defendant after his arrest. After reviewing these materials, Dr. Garver conducted a multiple-day interview with d efendant that lasted more than

11 hours. As a result of her rev iew of the materials and inter view with defendant, Dr. Garver opined that defendant’s actions i n this case were the result of delusions and hallucinations, and

that these delusions and halluci nations were exacerbated at the time of the shootings because defendant discontinued taking his medications in the months lea ding up to the shootings.

Dr. Garver explained that defendant believed that his family h ad infiltrated the Nation of Islam as intelligence officials, was concerned that the Nation of Islam had discovered his connection with those activities, and that this connection plac ed him in danger. According to Dr. Garver, defendant cited examples such as President Barack Obama ’s appearance in Michigan in February 2014, as support for hi s beliefs, explaining that the President “was signaling Muslims or . . . Nation of Islam people to step up the monitor of him . . . .” Dr. Garver also explained that defendant reported seeing humans changing to werewolves, believ ing that werewolves could become immortal, and being concerned that he had been bitten or scratched. In addition to werewolves, defendant also desc ribed seeing people as “weird an imalistic spiders,” “terminators,” “[a]liens,” “we ird plant people,” and “zombies.”

With respect to Addo, Dr. Garver explained that defendant reca lled observing “a scar on the back of his neck,” a trait that defendant and Addo shared. Dr. Garver testified that defendant believed that this shared trait meant that “Addo might be tryin g to steal his identity or that he really wasn’t who he claimed to be.” With respect to Rogers, D r. Garver explained that defendant felt that Rogers was spying on him, thought Rogers ha d been trying to get things out-3- of his apartment, believed that R ogers was a member of the Nati on of Islam, thought that Rogers had a relationship with someone who intended to kill him from D etroit, Michigan, and was concerned that Rogers was neglecting, molesting, and abusing hi s own children. During both shootings, according to Dr. Garver, defendant reported that Add o and Rogers both “morph[ed]”

into werewolves. She testified t hat defendant felt he had to k ill each of them “to save his life and the lives of other people” because werewolves “bec[o]me immorta l and your bullets won’t have any effect on them.” Accordingly, Dr. Garver opined that defen dant was legally insane at the

time he committed the crimes at issue.

The prosecution’s witness, Dr. W endt, testified that he review ed a variety of materials prior to interviewing defendant as well, including the police r eport, supplemental reports prepared by law enforcement, witness statements, defendant’s st atement, defendant’s mental health records, the results of psychological testing that was p erformed on defendant, and the report prepared by Dr. Garver. Like Dr. Garver, Dr. Wendt also conducted a multiple-day interview with defendant after reviewing these materials, with his interview lasting more than eight hours. As a result of his review of the materials and in terview with defendant, Dr. Wendt opined that defendant’s actions in this case were reality-based and not the result of delusions and hallucinations. Dr. Wendt primarily pointed to various inconsi stencies in defendant’s

recollection of the events at issue in this case. Dr. Wendt de scribed his interview with defendant as “a very different presentation than when he had provided ear lier accounts.” Dr. Wendt found it notable that defendant did not mention werewolves, lycans, v ampires, or the Nation of Islam during his interviews with law enforcement or in a post-arrest phone call to his brother but was able to bring it up immediately during their interview. Relate dly, Dr. Wendt also pointed to the fact that defendant “returned to his apartment or house and put the gun back in the case” after shooting the victims, which conflicted with his claimed belief “that there was an ongoing vampire and werewolf war and the Nation of Islam is conspiring against you to the point where you are in danger and you have to shoot people[.]”

Similarly, Dr. Wendt questioned the credibility of defendant’s delusions and hallucinations in light of his testimony that, despite seeing w erewolves and lycans at the bar the night before the shooting, he nevertheless remained at the bar dancing and flirting with a woman because he “didn’t want to make a big hoopla.” Dr. Wendt state d, “In my opinion it doesn’t add up. It’s inconsistent. It makes me believe that that was not his true mental state during that time frame.” Dr. Wendt additionally found it important that defenda nt appreciated that legal distinction between shooting Roge rs in Rogers’ home and shootin g Rogers in his home in selfdefense, explaining as follows:

[A]n important part is that during the heat of the conflict whe re he’s arguing in and fighting that night he did not shoot [Rogers], but once he had a chance to go home for the night, he returned later and unprovoked, other tha n the provocation from the previous night, that’s when he said he shot the man be cause of the, being a lycan, and his paranoia.

Accordingly, because of the inconsistency in defendant’s recoll ection of events, Dr. Wendt ultimately opined that defendant appreciated the difference bet ween right and wrong and could

control his actions.-4- Applying the rules set forth above, we conclude that there was sufficient evidence to support the jury’s rejection of t he insanity defense. The part ies presented conflicting testimony as to whether defendant was legally insane at the time of the s hootings, and the jury appears to have accepted Dr. Wendt’s testimony. Stated differently, the j ury found Dr. Wendt’s testimony credible. We defer to the jury’s credibility determination in this regard. Kanaan , 278 Mich App at 619. As stated above, the pr osecution was not required to d isprove defendant’s insanity defense any further, Mette , 243 Mich App at 330, and the jury was free to find it valid o r invalid,

Kolanek , 491 Mich 382, 411-412. Defendant claims that Dr. Wendt’s opi nion was not based “on any objective or verifiable prof essional criteria,” but the rec ord, as illustrated above, refutes this

conclusion. While Dr. Wendt’s t estimony contradicted that of D r. Garver, both e xperts’ opinions were based on objective and veri fiable professional criteria. Indeed, both experts relied on similar materials, psychologica l tests, and experience, but the y ultimately reached different conclusions. The disparity in their ultimate conclusions, alon e, is certainly not sufficient to render Dr. Wendt’s expert opini on so implausible that a reasona ble juror could not have believed it. Thus, the evidence presented by the prosecution was suffic ient to support the jury’s guiltybut-mentally-ill verdicts in this case.

Defendant also argues on appeal that a single instance of pros ecutorial misconduct requires reversal of his convic tions. Specifically, defendant takes issue with the following comment by the prosecutor during closing argument: “Defendant is charged with first degree premeditated murder. You will be getting an instruction on a l esser offense of second degree murder. It’s not applicable in this case. It’s not applicable .” The prosecutor continued, arguing that the elements of first-degr ee murder were proved beyond a r easonable doubt during the trial in this case. According to defendant, this argument deprived h im of his constitutional right to a fair trial because it interfered with the jury’s role of determ ining the applicable crime. Reviewing the comments at issue in context, People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004), however, we cannot agree. The prosecutor was not arguing that the jury should not consider second-degree murder; rather, the prosecuto r was arguing that the evidence established that defendant had committed first-degree, not seco nd-degree, murder. This was consistent with both parties’ the ory of the case—whether defend ant was legally insane at the time of the shootings, not whether first-degree or second-degre e murder was more applicable

under the facts and circum stances of the case. See People v Garcia , 448 Mich 442, 472; 531 NW2d 683 (1995) (providing that second-degree murder is always a lesser-included offense of first-degree murder). Furthermore, jurors are presumed to foll ow their instructions, People v

Graves , 458 Mich 476, 486; 581 NW2d 229 (1998), and the trial court i nstructed the jury to return a verdict based on the law as provided by the trial cour t, not the attorneys. Thus, any prosecutorial misconduct was presumptively cured by this instru ction, and defendant does nothing to overcome that presumption.

Affirmed.

/s/ Michael J. Kelly /s/ Cynthia Diane Stephens

/s/ Colleen A. O'Brien