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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 21, 2015

v No. 319694 Ingham Circuit Court DELON MARTELL MILLER, LC No. 13-000228-FC

Defendant-Appellant.

Before: O WENS , P.J., and J ANSEN and M URRAY , JJ.

P ER C URIAM

. Defendant appeals as of right his jury-trial convictions of on e count of first-degree premeditated murder, MCL 750.316(1)(a), four counts of assault with intent to commit murder, MCL 750.83, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defe ndant to life imprisonment for the first-degree murder convicti on, concurrent terms of 240 to 480 months for the assault with intent to murder convictions, and a consecutive term of 2 years for the felony-firearm conviction. We affirm.

I. BACKGROUND

This case stems from an altercation at the “Save On Market” co nvenience store on New Year’s Day, during which several men were shot, including Nicho las Jones who was mortally wounded. Three groups of men were involved, each of which ente red the store around 2:00 a.m. The first group to arrive inte nded to buy liquor after leaving a house party. Soon after the second group arrived, Keith Houston, a me mber of the second group, hada discussion with Delvanta Mitchell, a member of the first group. Keith Houston testified that while holding a gun, he told Mitchell that he did not like one of Mitchell’s acquaintances and that he was going to shoot the acquaintance when and where he found him. Mitchell denied that Keith Houston showed him a gun or threatened to kill his fr iend. Group three, which inclu ded defendant and codefendant Noe Arcaute, entered the store last. Charles Mattox, a member of g roup one, testified that he and Arcaute exchanged dirty looks after which Arcaute said that he “had a Magic Johnson for anybody,” which Mattox understood to mean that Arcaute was arme d with a gun and clip holding 32 bullets.

Soon thereafter, a fight broke out. One of the combatants, Al im Muhammad, testified that while he was being hit by multiple people, he pulled out a knife and started “stabbing air”-2- with his eyes “basically closed.” Keith Houston testified that he was standing near the door when the fight began, with his back to the fight. He said he t urned around when he heard a commotion and took a couple steps closer to watch. As he was a pproaching the fight, Keith Houston testified, he saw defendant “come back shooting” after “[a] couple, like seconds.” Keith Houston said he was shot while trying to run away.

Jerome Houston testified that he was standing by the cash regi ster when the fight broke out, and “then all of a sudden a gun came up” and he heard shot s fired. Jerome Houston said defendant shot first, aiming at Tyrazes Brown and Shawon Calvin , and fired two shots before Brown pulled out a gun and return ed fire. Jerome Houston estim ated that defendant and Brown each fired a total of five or six rounds while inside the store . Jerome Houston said defendant approached him, pointed his weapon at him and pulled the trigge r, but that defendant’s gun “didn’t go off anymore.” Jerome Houston said defendant then be nt over near the victim, who was shot and lying on the ground, and said, “they shouldn’t hav e jumped on me” and “sorry.” Jerome Houston said he then went back to his car while defendan t and another man exchanged fire by their respective vehicles. Medical evidence establishe d that the victim was shot on the left side of his chest, and thatthe bullet entered his body “c loser to his back than to his front.” Medical evidence also established that Brown sustained gunshot wounds to the chest and arm, Terreon Smith was wounded in his leg and buttocks, and Keith Ho uston had a gunshot wound to his leg.

Several residents of a house lo cated next to the store testifi ed to what happened outside of the store. One witness said she saw a group of people running from the store after hearing two gunshots. The witness testified th at two men then exited the s tore, with the bigger man exchanging gunfire with someone else while he and his companion were standing behind a van. Three witnesses testified that a third man approached the small er of the two by the van and shot him in the back. The smaller man was Arcaute.

Portions of the video surveillanc e footage from the store were played during trial, with Lansing Police Department Detective Mark Lewandowsky providing narration. The officer testified that he spent 30 to 40 hours reviewing the videos and could identify the people shown in the videos based on his investig ation of the case and personal interactions with many of them. In one segment taken from inside the store, Lewandowsky testified, Arcaute can be seen with his hand on a long, metallic object tucked horizontally in his wais tband, which appeared to Lewandowsky as the handle of a pistol and a magazine. Lewandow sky also testified that the video showed defendant separati ng himself from the “fighting ma ss of people” and then he and Arcaute go down to the end of an aisle, where Arcaute handed so mething to defendant. According to Lewandowsky, the footage shows defendant going bac k to the front of the store and raising his arms. Seconds l ater, the officer explained, th e victim is seen falling to the floor. Lewandowsky further testified th at defendant is seen a few seco nds later holding a gun with an “extra long magazine protruding from the bottom of the gun” and Brown attempting to shoot defendant. According to Lewandowsky, Arcaute is observed hidin g by a cooler while these shots were fired. Lewandowsky said exterior video footage show ed five people with guns, including defendant.-3- II. ANALYSIS

A. SUFFICIENCY O F THE EVIDENCE

Defendant first argues that there was insufficient evidence to sustain his convictions for first-degree murder and assault with intent to murder. This Co urt reviews sufficiency of the evidence issues de novo. People v Ericksen , 288 Mich App 192, 195-196; 793 NW2d 120 (2010).

“To determine whether the prosecutor has presented sufficient evidence to sustain a conviction, [appellate courts] revi ew the evidence in the light most favorable to the prosecutor and determine whether a rationa l trier of fact c ould find the d efendant guilty beyond a reasonable doubt.” People v Smith-Anthony , 494 Mich 669, 676; 837 NW2d 415 (2013) (citation and internal quotation marks omitted). “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibilitychoices in support of the jury verdict.” People v Nowak , 462 Mich 392, 400; 614 NW2d 78 ( 2000). Further, “[c]ircumsta ntial evidence and reasonable inferences arising from that evidence c an constitute sat isfactory proof of the elements of a crime,” People v Carines , 460 Mich 750, 757; 597 NW 2d 130 (1999) (citation and internal quotation marks omitted), and “there is absolutely nothing wrong with conviction[s] built on inferences derived from circumstantial evidence,” People v LaFountain , 495 Mich 968, 969; 844 NW2d 5 (2014) (citation and int ernal quotation marks o mitted).

“To establish first-degree premeditated murder, the prosecutio n must prove that the defendant intentionally killed t he victim and the act of killin g was deliberate and premeditated.” People v Haywood , 209 Mich App 217, 229; 530 NW2d 497 (1995). “Premeditation a nd deliberation require sufficient time to allow the defendant to take a second look.” People v Schollaert , 194 Mich App 158, 170; 486 NW2d 312 (1992). “The elements of premeditation and deliberation may be inferred from all the facts and circumstanc es surrounding the incident, including the parties’ prior relationship, the actions of the a ccused both before and after the crime, and the circumstances of the killing itself[.]” People v Haywood , 209 Mich App 217, 229; 530 NW2d 497 (1995) (citations omitted). “The elements of assault with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v Brown , 267 Mich App 141, 147; 703 NW2d 230 (2005) (internal quotation marks and citations omitted).

Defendant claims that there was insufficient evidence to prove that he acted with deliberation and premeditation. This argument is without merit . Video surveillance footage showed that defendant separated h imself from the brawl and retr eated to safety at the end of an aisle, along with Arcaute, before returning to the brawl and op ening fire with a gun he had been given by Arcaute. Defendant could have stayed at the end of th e aisle once there, as there was no evidence that any shots were being fired at that time or tha t the brawl was encroaching upon his location. He also could have declined to take Arcaute’s gun. And even after he returned to the brawl, there is no indicat ion he was in imminent danger.

The same evidence also undermines defendant’s assertion that there was insufficient evidence that he acted with an intent to kill. Instead of stay ing in his secure location away from the brawl, defendant obtained Ar caute’s gun, returned to the br awl, and shot Tyrazes Brown,-4- Keith Houston, Shawon Calvin, and Terreon Smith. This evidence does not show a person acting in the heat of the moment. Rather, a reasonable jury co uld have concluded that defendant was motived to kill in retaliation for being punched, that he w as the aggressor in this situation, and that by using an instrument of deadly force, he intended a deadly result. Moreover, defendant fails to provide authority showing that being punched during a brawl is sufficient provocation to designate the kil ling as manslaughter, especiall y where the person who was punched had the time and awareness to retreat to a place of saf ety before committing the killing. That defendant separated himself from the brawl after being pun ched and retreated to a place of safety demonstrated his clarity of thought, rather than a loss of control indicative of voluntary manslaughter. See People v Pouncey , 437 Mich 382, 389; 471 NW2d 346 (1991) (“Not every hot-tempered individual who flies into a rage at the slightest insult can claim manslaughter.”)

. Accordingly, defendant has failed to show that there was insuf ficient evidence to support his convictions for first-degr ee murder and assault with intent to commit murder.

B. VIDEO IDENTIFICATION

Next, defendant argues that Lewandowsky’s identification of th e people depicted in the store’s video surveillance footag e was improper and warrants re versal. Because defendant did not preserve this issue below, we review it for plain error aff ecting substantial rights. Carines
, 460 Mich at 763-764. An error is plain when it is clear or obv ious. Id. at 763. An error affects substantial rights when it “coul d have been decisive of the out come” of the case. People v Grant , 445 Mich 535, 547; 520 NW2d 123 ( 1994). Further, “[r]eversal is warranted only when the plain, forfeited error resu lted in the conviction of an act ually innocent defendant or when an error seriously affect[ed] the f airness, integrity or public re putation of judicial proceedings independent of the defendant’s innocence.” Carines , 460 Mich at 763-764 (internal quotation marks and citation omitted). Under the circumstances of this c ase, defendant has failed to show that the admission of Lewandowsky’ s testimony was plainly erron eous.
MRE 701, permitting the admission of lay opinion testimony, pr ovides as follows:

If the witness is not testifying as an expert, the witness’ te stimony in the form of opinions or inf erences is limited to those opini ons or inferences which are (a) rationa lly based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testim ony or the determination of a fact in issue.

In People v Fomb y, 300 Mich App 46, 49-52; 831 NW2d 887 (2013), this Court held that a witness’s narrative description of a video and identificationof actors in still images from the video constituted admissible lay opinion testimony under MRE 70 1. The Court concluded that the opinions were rationally bas ed on the witness’s perception, even though the witness did not observe firsthand the events depicted in the video, because the witness watched the video, produced short clips of individuals in the video, and isolated certain frames to create still images. Id. at 50-51. The Court also concluded that the opinion testimony was helpful to a clear understanding of the video and a fact at issue because the vide o was long and the witness testified that he reached his c onclusion after reviewing the fu ll video. Id. at 52.-5- Similarly, Lewandowsky’s opinion testimony about the actors in the store’s video surveillance footage was proper, even though he did not witness the events depicted in the videos, because he testified that he reviewed the videos for so me 30 to 40 hours and made his identifications after investigating the case and personally int erviewing many of the actors involved. Most importantly, as it relates to defendant, Lewand owsky interviewed him twice shortly after the shootings, meaning he was personally aware of defendant’s appearance on the night of the shootings. Also, as in Fomby , Lewandowsky’s opinion testimony was helpful to the jury’s understanding of the events because it put together the pieces of video footage collected from multiple cameras recording in multiple directions.

Nor did the testimony invade the province of the jury. See id . at 52-53. Lewandowsky did not make an improper expression of opinion as to the defend ant’s guilt, see People v Bradgon , 142 Mich App 197, 199; 369 NW2d 208 (1985), and explained fur ther that the witness was in the best position to identify those depicted in still im ages from the video because he created the still images, see Fomb y, 300 Mich App at 53. In sum, defendant has failed to show that the trial court’s admission of Lewandowsky’s lay opinion t estimony was erroneous, let alone plainly erroneous.

Moreover, defendant has failed to show that Lewandowsky’s test imony was decisive of the outcome of the case or seriously affected the fairness and integrity of the proceedings, or that he was convicted despite his actual innocence. His testimony w as not decisive because the jury was nevertheless able to compar e defendant’s appearance in court with the video footage, and because Keith Houston testified that he saw defendant shooting in the store. Indeed, defendant does not deny that he shot the victim.

C. PROSECUTORIAL MISCONDUCT

Next, defendant argues that the prosecutor committed misconduc t by vouching for Keith and Jerome Houston’s credibility and implying that he had speci al knowledge concerning the truthfulness of their trial te stimony. Defendant concedes this issue is unpreserved. “Unpreserved claims of prosecuto rial misconduct . . . are revie wed for plain error” affecting substantial rights. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). “Further, [this Court] cannot find error re quiring reversal where a curat ive instruction could have alleviated any prejudicial effect.” People v Callon , 256 Mich App 312, 329-330; 662 NW2d 501 (2003).

“Included in the list of improper prosecutorial commentary or questioning is the maxim that the prosecutor cannot vouch for the credibility of his wit nesses to the effect that he has some special knowledge concerning awitness’ truthfulness.” People v Bahoda 448 Mich 261, 276; 531 NW2d 659, (1995). Defendant cla ims that the prosecutor vio lated this maxim by acknowledging Keith and Jerome Houston’s plea agreements in fed eral-court proceedings, and stating that he would inform the U.S. Attorneys prosecuting the ir federal charges as to whether he believed they testified truthfully. However, a simple “refe rence to a plea agreement containing a promise of truthfulness is in itself [not] grounds for reversal.” Id . (citation and quotation marks omitted; emphasis in original). “Generally, by calling a witness who testifies pursuant to an agreement requiring him to testify truthfully, t he Government does not insinuate possession of information not heard by the jury and the prosecu tor cannot be taken as having-6- expressed his personal opinion on a witness’ veracity.” Id. (citation, quotation marks, and punctuation omitted). Further, the prosecutor did not indicate that his belief concerning the truthfulness of the cited testimony would be based on any speci al knowledge not heard by the jury. Accordingly, defendant has fa iled to show that these sta tements were improper.

Next, defendant contends that the prosecutor committed miscond uct by denigrating his counsel during closing arguments and claiming that his counsel was intentionally misleading the jury. “Prosecutors are typically afforded great latitude regar ding their arguments and conduct at trial,” and “[t]hey are generally free to argue the evidence an d all reasonable inferences from the evidence as it relates to their theory of the case.” People v Unger , 278 Mich App 210, 236; 749 NW2d 272 (2008). “However, [a] prosecutor may not suggest that defense counsel is intentionally attempting to mislead the jury.” Id. (citation and internal quotation marks omitted; alteration by Unger Court).

Defendant takes issue with the following argument by the prose cutor: “Let me address [defendant’s counsel’s] position first, and respectfully, let m e say this to the factual recitation that [defendant’s counsel’s] gave you. Nonsense, bunk, not sup ported by the evidence, preposterous, not reasonable doubt , possible doubt or in the re alm of possibility, and unsupported by the evidence.” None of these statements suggested that defe ndant’s counsel was intentionally attempting to mislead the jury. The prosecutor merely argued—a lbeit with vigor—that defense counsel’s recitation of the facts was erroneous and not support ed by the evidence, and the prosecutor went on to explain why the jury should agree with hi s argument. Accordingly, defendant has failed to show any prosecutorial misconduct.

Moreover, defendant fails to explain why a curative instructio n could not have alleviated any prejudicial effect of the alleged misconduct. Callon , 256 Mich App at 329-330. See also Unger , 278 Mich App at 23 (2008) (noting that curative instructions are sufficient to cure the prejudicial effect of most inappr opriate prosecutorial statemen ts, and jurors are presumed to follow their instructions).

D. NEIGHBORHOOD REPUTATION

Finally, defendant argues that the trial court abused its disc retion in precluding a police officer from testifying regarding the reputation for violence o f the neighborhood where the shooting occurred. “The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion.” People v Aldrich

, 246 Mich App 101, 113; 631 NW2d 67 (2001). “An abuse of discre tion occurs when the court chooses an outcome that falls outside the range of reasonable a nd principled outcomes.” Fomb y, 300 Mich App at 48 (internal quotation marks and citation omitt ed). “[P]reliminary questions of law, e.g., whether a rule of evid ence or statute precludes admi ssibility of evidence,” are reviewed de novo. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999). Further, “a preserve d, nonconstitutional error is not a g round for reversal unless aft er an examination of the entire cause, it shall affirmatively appe ar that it is more probable t han not that the error was outcome determinative.” Id. at 496 (citation and internal quotation marks omitted).

During trial, a police officer t estified that he had patrolled the area of the store about eight months before the shooting. When defense counsel asked t he officer if there had been any-7- other instances of gunshots in the area during that time, plain tiff objected. Defense counsel explained that the answer was re levant to the state of mind of the people in the store. The trial court disagreed, ruling that such testimony was not relevant. On appeal, defendant claims that the trial court’s ruling was erroneous and denied him the oppor tunity to argue that he acted in self-defense.

Here, defendant fails to show how a police officer’s knowledge of prior gunshots in the area of the store during the eigh t months before the shooting w ould have made it more likely that defendant fired his weapon in self-defense, as required under M RE 401 and 402. Self-defense is predicated on a reasonable fear of imminent harm, see People v Riddle , 467 Mich 116, 119; 649 NW2d 30 (2002), and any testimony about events occurring in the months preceding the shooting had no bearing on the imminence of harm facing defenda nt. Moreover, its exclusion did not deny him the opportunity to argue that he acted in self -defense. In fact, there was direct evidence that other men in the store possessed firearms prior t o the shooting and that a brawl was taking place.

Affirmed.

/s/ Donald S. Owens /s/ Kathleen Jansen /s/ Christopher M. Murray