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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 29, 2016 

v No. 327669 

Wayne Circuit Court 

TERRELL THORNTON, LC No. 12-004642-01-FC 

 Defendant-Appellant. 

Before: GADOLA, P.J., and FORT HOOD and RIORDAN, JJ. 

PER CURIAM. 

 In 2012, a jury convicted defendant of attempted murder, MCL 750.91, and arson of a 

dwelling house, MCL 750.72(1)(a). In a prior appeal, this Court vacated defendant’s convictions 

and remanded for a new trial because it agreed with the trial court that defense counsel provided 

ineffective assistance when he failed to investigate an alibi defense. People v Thornton, 

unpublished opinion per curiam of the Court of Appeals, issued May 27, 2014 (Docket No. 

313070). Defendant was retried in November 2014 and again convicted of attempted murder 

and arson of a dwelling house. He was sentenced to 25 to 50 years in prison for the attempted 

murder conviction and 10 to 20 years in prison for the arson conviction, to be served 

concurrently. 

Defendant again appeals as of right. We affirm. 

I. FACTUAL BACKGROUND 

 Defendant’s convictions arise from a fire at a Detroit apartment building on Springle 

Street in the early evening on August 9, 2011. Investigators concluded that the fire was an arson, 

discovering that accelerants were used inside the building, near the exit. No one died in the fire, 

but many individuals escaped from the building through apartment windows and suffered various 

injuries. 

The prosecution’s theory of the case was that defendant attempted to murder Jeffrey 

White because White had renounced a Nation of Islam group that defendant led. There was 

testimony that defendant threatened White in the past and threatened him again from inside a van 

or SUV, with two other men inside, in front of the apartment building shortly before the fire. 

Numerous witnesses testified regarding their observations before, during, and after the incident. 
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II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant argues that defense counsel provided ineffective assistance at the second trial 

by failing to investigate and present an alibi defense and failing to adequately impeach two of the 

prosecution’s witnesses. We disagree. 

A. STANDARD OF REVIEW 

Because a Ginther1 hearing was not held in the trial court following defendant’s second 

trial, our review is limited to errors apparent on the record. People v Jordan, 275 Mich App 659, 

667; 739 NW2d 706 (2007). “A claim of ineffective assistance of counsel is a mixed question of 

law and fact. A trial court’s findings of fact, if any, are reviewed for clear error, and this Court 

reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim 

de novo.” People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008), citing People v 

LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). 

Effective assistance of counsel is presumed, and defendant bears a heavy burden 

of proving otherwise. To demonstrate ineffective assistance, defendant must 

show: (1) that his attorney’s performance fell below an objective standard of 

reasonableness, and (2) that this performance so prejudiced him that he was 

deprived of a fair trial. To demonstrate prejudice, the defendant must show the 

existence of a reasonable probability that, but for counsel’s error, the result of the 

proceeding would have been different. [People v Gaines, 306 Mich App 289, 

300; 856 NW2d 222 (2014) (quotation marks and citations omitted).] 

B. ALIBI DEFENSE 

 Defendant first claims that defense counsel was ineffective for failing to investigate and 

present an alibi defense. We disagree. 

 Defendant raised this argument in his prior appeal, claiming that his former defense 

attorney was also ineffective for failing to investigate an alibi defense. Thornton, unpub op at 2. 

This Court agreed and remanded the case for a new trial. Id. at 3-4. However, the record 

developed after remand does not support defendant’s contention that his newly appointed 

defense counsel failed to investigate an alibi defense. 

Before defendant’s second trial, defense counsel filed a notice of intent to claim an alibi 

defense, identifying four witnesses who may offer testimony that defendant was on Olga Street 

in Detroit, Michigan, at the time of the offense. During the retrial, however, defense counsel and 

defendant stated the following on the record: 

[Defense counsel]: Secondly, we have filed a notice of intent to claim the 

defense of alibi. After reviewing[,] considering[,] and weighing all the pros and 

 

1 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 
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cons, it is also our decision, in consultation with [defendant], that we not raise the 

alibi defense. 

Am I right, [defendant]? 

DEFENDANT: That is correct, sir. 

* * * 

[Defense Counsel]: Anybody promise anything threaten coerce you in 

any weapon [sic] to make these decisions we just talked about put on the record. 

DEFENDANT: No sir. 

 Defendant asserts on appeal that he only agreed to abandon the alibi defense because 

counsel was unprepared at retrial to present that theory, but this claim is inconsistent with 

defendant’s own statements on the record that he was not coerced into abandoning the alibi 

defense. Further, unlike defendant’s first attorney, who failed to investigate the defense, 

defendant’s new counsel stated that he and defendant had reviewed, considered, and weighed all 

the pros and cons of presenting an alibi defense, and defendant expressly confirmed on the 

record that he agreed with that statement. 

Given this evidence, defendant has not overcome the strong presumption that the decision 

not to present the alibi defense was sound trial strategy, see Gaines, 306 Mich App at 300, as 

defendant’s wholly unsupported claim that counsel was unprepared is insufficient to rebut the 

record evidence confirming that counsel investigated the defense and made an informed decision 

not to present it.2 

 Defendant has failed to establish that he received ineffective assistance on this ground. 

C. IMPEACHMENT 

 Next, defendant argues that counsel was ineffective because counsel did not use several 

pieces of evidence to impeach White and Myra Owens, a resident of the apartment complex. 

Defendant argues that this error is egregious in light of the fact that their credibility was critical 

in this case because they were the only witnesses who saw defendant with a gas can. We reject 

defendant’s claim. 

“Counsel may provide ineffective assistance if counsel unreasonably fails to develop the 

defendant’s defenses by adequately impeaching the witnesses against the defendant.” People v 

 

2

 Again, our review is limited to errors apparent on the record. See Jordan, 275 Mich App at 

667. We may not consider the affidavits proffered by defendant on appeal, as doing so would 

constitute an impermissible expansion of the record. See People v Powell, 235 Mich App 557, 

561 n 4; 599 NW2d 499 (1999). 
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Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). However, “[d]ecisions regarding whether 

to call or question a witness are presumed to be matters of trial strategy.” People v Putman, 309 

Mich App 240, 248; 870 NW2d 593 (2015). “We will not substitute our judgment for that of 

defendant’s counsel, nor will we use the benefit of hindsight to assess counsel’s performance.” 

People v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008). “A particular strategy does not 

constitute ineffective assistance of counsel simply because it does not work.” People v 

Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004). 

 First, prosecution witness White testified that he was approaching the apartment building 

to visit his soon-to-be mother-in-law, Brenda Andrews, when an SUV driven by defendant 

approached him. Defendant spoke to White, and a man in the backseat of the vehicle cocked a 

gun during the encounter. Defendant argues that counsel should have cross-examined White and 

the reporting officer about White’s statement to the police that the encounter actually occurred as 

he was leaving the apartment building. At the first trial, former defense counsel elicited 

testimony from Officer Anthony Murray that White told him that he saw defendant as he walked 

out of the building. When prior counsel asked White about the police statement, he explained 

that he talked to a lot of officers, he denied that he explained the encounter as it was written in 

the report, and he noted that he did not write the statement himself. 

 Defendant cannot establish that his new attorney unreasonably failed to develop 

defendant’s defenses by failing to impeach White with his previous statement to the police. The 

record shows that, in the alternative, defendant’s new counsel elicited testimony from White that 

he was not sure, in some instances, what he told the police, and that it is possible that he did not 

mention seeing defendant with a gas can until about a year after the fire. Counsel also elicited 

testimony from White that he had a cellular phone, but did not personally call the police after he 

was threatened outside the apartment building. In addition, counsel questioned whether White 

was just after a Crime Stoppers’ reward in this case. 

 Counsel also pursued other theories to impeach White’s credibility. To attack the theory 

that defendant targeted White for leaving the Nation of Islam, counsel elicited testimony from 

White that he did not call the police when defendant had threatened him in the past and that he 

failed to obtain a personal protection order. In addition, as discussed further below, counsel 

attempted to establish that White blamed defendant in order to avoid being investigated as the 

true perpetrator of the arson. For example, counsel offered other-acts evidence establishing that 

White had lied in the past by using an alias. Defense counsel also elicited testimony that White 

smoked marijuana, and that it was not uncommon for him to carry a lighter. Moreover, counsel 

questioned White regarding whether he told medical professionals that he burned himself, 

indicating that the fire occurred due to his own acts. Additionally, counsel elicited testimony 

that White could have been described as “stocky” at the time of the fire, and that Owens 

described the perpetrator as “stocky.” The defense also evoked testimony that White was 

familiar with the general layout of the building and that he had a friend drop him off a distance 

away, from which a jury could infer that his behavior was suspicious and not simply a visit to his 

future mother-in-law. On this record, given defense counsel’s attempted impeachment of White 

through numerous other means, defendant has failed to demonstrate that defense counsel’s 

decision not to impeach White with one prior inconsistent statement from a police report was an 

unsound trial strategy. See Putman, 309 Mich App at 248; Lane, 308 Mich App at 68 
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 In addition, defendant argues that counsel should have impeached Owens with her prior 

police statement that the perpetrator was wearing a black t-shirt on the day of the fire. Defendant 

fails to recognize that counsel established through cross-examination that Owens was confused 

about the perpetrator’s clothing. He elicited from Owens that she thought that she saw defendant 

wearing a white t-shirt when he entered the apartment building, but was wearing a blue t-shirt 

when he left. Defendant cannot establish that counsel’s strategy fell below an objective standard 

of reasonableness on this basis. See Gaines, 306 Mich App at 300. 

 Defendant also argues that counsel should have impeached Owens with her prior 

testimony that defendant arrived around 9:00 a.m. when she repeatedly testified on crossexamination at the second trial that she was not sure when he arrived. However, defense counsel 

elicited testimony from Owens that she could not remember the time at which defendant arrived, 

and counsel may have believed, in a reasonable exercise of trial strategy, that leaving this 

testimony untouched would generate more doubt in the minds of the jurors than impeaching 

Owens with a prior inconsistent statement that specifically identified the timing of the day’s 

events. See Putman, 309 Mich App at 248. Further, while defendant claims that establishing 

that Owens saw him earlier in the day would contradict the other witnesses’ testimony—which 

placed defendant at the apartment building only at the time of the fire—to such an extent that the 

jury would find her testimony unbelievable, Owens was the only witness to testify that she spent 

the whole day looking out the window at Springle Street. Therefore, she was the only witness 

with an opportunity to see defendant earlier in the day. Further, as the prosecution argues, 

focusing on Owens’ testimony that defendant was at the apartment the whole day may have 

increased the risk that the jury would believe her testimony that defendant wore two different 

shirts and had time to change, as she claimed. 

 Most importantly, counsel pursued alternative methods to impeach Owens’ credibility. Counsel 

elicited testimony that: (1) she thought that defendant’s vehicle was green while other witnesses 

testified that it was silver or white; (2) she could not remember any additional details about the 

other men in the vehicle besides their race; (3) she only reported her observations to the 

authorities when officers visited her months after the fire; and (4) she did not know defendant’s 

height or hairstyle and testified that he did not have any facial hair. Given this vigorous crossexamination, defendant cannot establish that counsel unreasonably failed to develop the defense 

that Owens’ observations were not credible. See Gaines, 306 Mich App at 300. 

 Lastly, it is noteworthy, in the words of the prosecutor at the Ginther hearing after the 

first trial, that defendant’s former counsel was “almost overly aggressive” in his crossexamination of the witnesses, and he made—or at least attempted to make—“mincemeat” out of 

Owens. It is apparent that this aggressive cross-examination strategy was not successful during 

the first trial, and the same lines of questioning that defendant claims that his new counsel should 

have pursued while cross-examining White and Owens were, in fact, pursued by his former 

counsel in the first trial, which resulted in defendant’s conviction. 

Accordingly, we conclude that defendant has failed to establish the requisite prejudice to 

substantiate his ineffective assistance claims. See Gaines, 306 Mich App at 300. Moreover, 

given this record, defendant cannot overcome the strong presumption that, on retrial, his new 

counsel made a strategic decision to strike a careful balance between impeachment and bullying. 

“That the strategy [defense counsel] chose ultimately failed does not constitute ineffective 
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assistance of counsel.” People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 

(2001). 

III. MOTION TO SUPPRESS OWENS’ IDENTIFICATION 

 Next, defendant argues that the trial court should have granted his motion to suppress 

Owens’ in-court identification. We disagree. 

A. STANDARD OF REVIEW 

“A trial court’s determination in a suppression hearing regarding the admission of 

identification evidence will generally not be reversed unless clearly erroneous. Issues of law 

relevant to a motion to suppress are reviewed de novo. Clear error exists when the reviewing 

court is left with a definite and firm conviction that a mistake was made.” People v McDade, 

301 Mich App 343, 356; 836 NW2d 266 (2013). 

B. ANALYSIS 

 In the trial court, the parties stipulated that the prosecution may not present evidence of 

Owens’ identification of defendant in a photographic lineup at a time when defendant was 

already in custody, as using a photographic lineup at that time was improper. See People v 

Kurylczyk, 443 Mich 289, 298; 505 NW2d 528 (1993) (“Subject to certain exceptions, 

identification by photograph should not be used where the accused is in custody.”) (quotation 

marks, citation, and emphasis omitted). In general, if a witness identifies a defendant through an 

improper pretrial identification procedure, the prosecution must establish an independent basis 

for any subsequent in-court identification of the defendant by that witness. See People v Kachar, 

400 Mich 78, 92-94; 252 NW2d 807 (1977). Courts should consider the following factors when 

determining whether an independent basis exists for the admission of an in-court identification: 

(1) the witness’s prior knowledge of the defendant, (2) the witness’s opportunity to observe the 

perpetrator during the crime (including the duration of the observation, the lighting, any noise or 

other factors affecting sensory perception, and the proximity to the alleged criminal act), (3) the 

length of time between the crime and the disputed identification, (4) discrepancies between the 

pretrial identification description and the defendant’s actual appearance, (5) any prior proper 

identification or failure to identify the defendant, (6) any prior identification of another as the 

perpetrator, (7) the mental state of the witness at the time of the crime (considering factors such 

as fatigue, nervous exhaustion, intoxication, and the age and intelligence of the witness), and (8) 

any special features of the defendant. People v Gray, 457 Mich 107, 116; 577 NW2d 92 (1998), 

quoting Kachar, 400 Mich at 95-96. Courts will also consider the witness’s level of certainty at 

the prior identification. See Kurylczyk, 443 Mich at 306; People v Colon, 233 Mich App 295, 

304-305; 591 NW2d 692 (1998). The inquiry focuses on the totality of the circumstances. Gray, 

457 Mich at 115.3

 

 

3

 On appeal, defendant argues that the trial court misapplied controlling law by failing to 

determine if Owens had an independent basis for her in-court identification before concluding 
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 The trial court properly admitted Owens’ in-court identification of defendant, as it is clear 

from the record that Owens had an independent basis for the identification that was untainted by 

the improper pretrial procedure.4

 Multiple factors support this conclusion. 

First, the testimony at the first trial demonstrated that Owens had an extended opportunity 

to observe defendant. Owens lived in the first-floor apartment in the front of the building. 

Owens testified that she had nothing to do on the day of the fire—which began as a rainy day but 

grew more pleasant as the hours passed—so she sat in a chair and looked out her front window. 

Thus, she had an opportunity to observe defendant repeatedly, in daylight, when he first arrived 

and entered the building, when he left after Owens heard an argument between two men, and 

again, closer to 6:00 p.m., when he exited the building with a gas can. As the prosecutor 

emphasized at the motion hearing, defendant was only a short distance away from where Owens 

was watching when he entered and exited the building. Moreover, as defendant ran with the gas 

can toward Warren Avenue, Owens kept her eyes on him for about half a block.5 Owens’ 

that the fact that her identification occurred months after the fire was relevant to the weight, and 

not the admissibility, of her in-court identification. The trial court did not expressly restate the 

Kachar “independent basis” standard when it admitted the in-court identification, but it is 

overwhelmingly apparent from the parties’ arguments and the trial court’s questions on the 

record that the court understood that this standard was at issue. 

4

 Defendant argues that the trial court erred by failing to hold an evidentiary hearing to review 

Owens’ testimony outside the presence of the jury, and that we should remand for such a 

hearing. Defendant relies on Gray, which stated that an evidentiary hearing is required if 

counsel was not present at the pretrial identification or if the pretrial identification procedures 

were unnecessarily suggestive or conductive to irreparable misidentification. Gray, 457 Mich at 

115, quoting People v Anderson, 389 Mich 155, 169; 205 NW2d 461 (1973), overruled in part on 

other grounds People v Hickman, 470 Mich 602, 603; 684 NW2d 267 (2004). Here, however, 

defendant did not contest Owens’ pretrial identification or in-court identification based on those 

types of circumstances. Further, in Anderson, 389 Mich at 169, the Supreme Court explained, “If 

the record is not complete and a determination either way cannot be made, the court should 

vacate the conviction and remand to the trial court for a hearing on the issue.” (Emphasis 

added.) Most notably, in People v Johnson, 202 Mich App 281, 287; 508 NW2d 509 (1993), this 

Court explained, “We do not believe that a defendant is entitled to an evidentiary hearing where 

the defendant fails to support the allegation of impropriety with factual support or where it is 

clear from the record that such a hearing would be futile in light of substantial evidence that 

there exists an independent basis for the identification.” (Emphasis added.) 

We agree with the prosecution that the record was more than sufficient to decide the issue 

at the time of the pretrial motion to suppress because Owens already had testified at the first trial. 

Although defendant claims that certain facts were not presented to the trial court when it 

considered the motion to suppress, the trial court stated that it took judicial notice of the entire 

record from the earlier trial. Accordingly, an evidentiary hearing was not necessary, and remand 

for an evidentiary hearing is not warranted. 

5

 Defendant attempts to undermine Owens’ testimony that she saw defendant throughout the day 

by arguing that other witnesses only saw him at the apartment building at the time of the fire. 

However, again, Owens was the only witness to testify that she spent the whole day looking out 
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opportunity to observe defendant weighed in favor of finding an independent basis for the incourt identification. 

 The record at the first trial demonstrated that Owens’ description to police was 

corroborated by other witnesses’ accounts and defendant’s actual appearance. Defendant is a 

5’4” black man who, according to the lower court file, weighed 140 pounds. Owens accurately 

told the police that defendant was short, with a heavyset or medium build, and was “dark 

complected.” Owens estimated that defendant was between 20 and 30 years old, and he was 32 

years old at the time of the fire. Owens reportedly saw defendant in different clothing 

throughout the day, but suspected that he had changed. Just like several other witnesses, Owens 

saw defendant exit a van or SUV with out-of-state plates.6

Additionally, Owens’ confidence in the identification, her previous identification of 

defendant, and the fact that she never identified anyone else as the perpetrator further weigh in 

favor of finding that an independent basis existed for the in-court identification. Owens 

confirmed at the first trial that she was 100 percent certain of her identification, stating that there 

was “no doubt” in her mind. Additionally, when she viewed the photographic array, which 

nobody argues was inherently suggestive (only conducted at an improper time when defendant 

could have participated in a live lineup), she positively identified defendant. There is no 

evidence that Owens ever identified someone other than defendant as the perpetrator. 

 Because Owens had an opportunity to observe defendant before the fire, there is no 

indication that her identification was impaired by fear or other emotions related to the fire. 

Moreover, Owens testified that because she did not know defendant, she had no biases against 

him. Although defense counsel argued at the motion hearing that Owens was “in advanced 

years,” she was only in her mid-50s when the fire occurred, and there is no evidence that her age 

affected her observations. Thus, Owens’ mental state weighed in favor of finding an 

independent basis for the in-court identification. 

 Some factors weighed against a finding of an independent basis. Owens did not know 

defendant and had never seen him before the day of the fire. In addition, Owens’ initial 

statement to the police and identification of defendant occurred months after the fire. However, 

the prosecutor explained that the delay occurred because Owens sought medical treatment on the 

day of the fire and the investigation of witnesses was stalled due to the fact that the witnesses 

were displaced from the gutted apartment building. And, again, even though Owens had not 

the window at Springle Street. Thus, she was the only witness who had an opportunity to see 

defendant earlier. 

6

 On appeal, defendant focuses on one discrepancy between Owens’ report and testimony—she 

did not tell the police that she saw defendant with a gas can. She first mentioned this observation 

at the first trial. On cross-examination at the first trial, Owens acknowledged the discrepancy 

and, in the same line of questioning, admitted that she heard White talking about the case. But 

on redirect examination, Owens testified that White did not tell her what to say at trial and she 

confirmed that her testimony consisted of what she saw “with [her] own eyes.” Despite Owens’ 

omission, the overall consistency of Owens’ reporting of defendant’s appearance and the crime 

weighed in favor of finding an independent basis for the in-court identification. 
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seen defendant previously, she had an extended opportunity to see him throughout the day of the 

fire. 

In considering all of these circumstances, see Gray, 457 Mich at 115, we are not left with 

a definite and firm conviction that the trial court clearly erred when it denied defendant’s motion 

to suppress because the testimonial record made at the first trial established that Owens had an 

independent basis for her in-court identification. See McDade, 301 Mich App at 356. 

IV. JURY INSTRUCTION 

 Lastly, defendant argues that the trial court erred by denying his request for a jury 

instruction based on his defense theory that evidence admitted at trial indicated that White was 

the actual perpetrator. Even if the trial court erred, reversal is not warranted. 

 A. STANDARD OF REVIEW AND APPLICABLE LAW 

 “Claims of instructional error are generally reviewed de novo by this Court, but the trial 

court’s determination that a jury instruction is applicable to the facts of the case is reviewed for 

an abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). 

“A defendant in a criminal trial is entitled to have a properly instructed jury consider the 

evidence against him or her.” Id. It is the trial court’s duty to instruct the jury on the law 

applicable to the case. MCL 768.2; Dobek, 274 Mich App at 82. “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.” Dobek, 274 Mich App at 82. See also People v 

Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002) (“When a defendant requests a jury instruction 

on a theory or defense that is supported by the evidence, the trial court must give the 

instruction.”). However, an instruction must be supported by a rational view of the evidence. 

People v Pinkney, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 325856); slip op 

at 9. 

“Even if the instructions are somewhat imperfect, reversal is not required as long as they 

fairly presented the issues to be tried and sufficiently protected the defendant’s rights.” Id. 

(quotation marks and citation omitted). Additionally, in Riddle, 467 Mich at 124-125, the 

Michigan Supreme Court explained: 

[I]f an applicable instruction was not given, the defendant bears the burden of 

establishing that the trial court’s failure to give the requested instruction resulted 

in a miscarriage of justice. The defendant’s conviction will not be reversed 

unless, after examining the nature of the error in light of the weight and strength 

of the untainted evidence, it affirmatively appears that it is more probable than not 

that the error was outcome determinative. 

B. ANALYSIS 

 It is unnecessary to determine whether the requested instruction was supported by a 

rational view of the evidence. Even if we assume, without deciding, that the trial court erred by 

failing to provide the instruction, the error was not outcome determinative. 
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Defendant’s defense theory that Smith started the fire was clear from defense counsel’s 

arguments and questioning of the witnesses during the trial. However, the evidence negating this 

theory was overwhelming. Although one officer observed that White ran, while on fire, from the 

burning building—which, according to the defense, demonstrated consciousness of guilt—White 

testified that he was not fleeing the scene, but, instead, was trying to escape from the fire and 

save his life. Law enforcement officers testified that it is common for individuals to run away 

from a burning building and common for people burned in a fire to run for cover. Additionally, 

Chief Charles Simms also testified that the officers’ reports to him did not “give any type of 

inclination that [White] was running from them.” When White was ordered to come out from 

some bushes (in which he had been rolling in order to extinguish the fire on himself), he 

followed the order. 

Additionally, although a medical report stated that White’s primary complaint was, “I 

burned myself,” White testified that he did not make that statement in an interview, and the 

other, more detailed medical records explained that White reported that someone set fire to the 

building and White thought he was the target. White’s injuries also were consistent with his 

description of his escape from the apartment building. Specifically, his burns were consistent 

with a defensive posture, and the presence of carbonaceous staining on his mouth was consistent 

with running in a burning building and inhaling smoke. Further, Chief Simms testified that 

White’s burns were not consistent with someone who set a fire. Normally, people he has 

arrested who have set fires have lower-extremity burns. 

 Chief Simms also testified that White was never a suspect in this case. There was no 

physical evidence that the fire was ignited near Andrews’ apartment, where White had been 

present immediately before the fire. In addition, Chief Simms testified that paramedics 

customarily alert the arson department if they transport someone who smells like gasoline, and 

the paramedics made no such report about White. 

It is noteworthy that defense counsel expressly argued during his closing argument that it 

was likely, based on the prosecution’s evidence, that White started the fire. Subsequently, the 

trial court instructed the jury that defendant enjoyed a presumption of innocence and that the 

prosecutor had the burden of proof. The jury was told that “[t]his presumption continues 

throughout the trial and entitles the Defendant to a verdict of not guilty, unless you are satisfied 

beyond a reasonable doubt that he is guilty.” The trial court instructed the jury that defendant 

was not required to prove his innocence or “to do anything.” 

Despite defense counsel’s closing argument and the trial court’s instructions, the jury still 

found defendant guilty. Given the overwhelming evidence against White’s guilt, defendant 

cannot establish that it is more probable than not that any refusal to provide the requested 

instruction concerning his defense theory was outcome determinative. See Riddle, 467 Mich at 

124-125. 

V. CONCLUSION 

Defendant has failed to establish that any of his claims on appeal warrant relief. 
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 Affirmed. 

/s/ Michael F. Gadola 

/s/ Karen M. Fort Hood 

/s/ Michael J. Riordan