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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 24, 2015

v No. 319154 Saginaw Circuit Court DAQUAVIS DESHAW MARTIN, LC No. 13-038567-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and M URPHY and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right his conviction following a jury trial of first-degree premeditated murder, MCL 750.316(1 )(a). He was sentenced to ma ndatory life in prison without the possibility of parole. We affirm.

Defendant and three accomplices brutally beat a 52-year-old ma n to death. The assault took place at night in the yard of an individual who was alerte d to the attack after hearing some commotion and loud voices near his living room window. He ste pped outside onto the porch and witnessed the ongoing assault on the sidewalk in front of h is home. We shall hereafter refer to this individual as “the eyewitness.” The eyewitness testifi ed, “As soon as I stepped on the porch, four were hitting and kick ing [the victim]. Yeah, all f our were hitting and kicking[.]” The eyewitness identified defendant as one of the perpetrators of the assault from a photographic lineup and at trial. According to the eyewitness, the four ass ailants ignored his presence on the porch for about 15 to 20 seconds, while continuing to merciless ly strike and kick the defenseless victim. When the eyewitness thereafter spoke up and demanded t o know what was going on, two of the assailants backed aw ay, but the other two, including defendant, continued the assault, with, among other blows, defendant kicking the victim in the to rso and the other assailant striking the victim with a ca ndy cane Christmas decoration. Th e eyewitness further testified:

Q . When you . . . stepped on . . . your f ront porch, the victi m was lying on the cement leading to your home, is that correct?

A . Correct.

Q . Was that person making any de fensive moves whatsoever?-2- A . At the time I stepped on the porch it appeared he was unconsc ious so he was – he wasn’t able to defe nd himself at that time. He wasn’t moving his arms or anything . . . .

Q . And this was what you’ve est imated 15 to 20 seconds that you watched prior to saying something?

A . That’s correct.

Q . And even after you said some thing, the two . . . individuals, the defendant and another . . ., continued to beat him?

A . That’s correct.

The eyewitness also testified that defendant blurted out that h e was robbing the victim, and the eyewitness explained that he obs erved defendant rifling through the victim’s clothes.

The forensic pathologist who performed the autopsy described t he following injuries suffered by the victim: numerous bruises and lacerations on the victim’s face and head (“he had bruises from front to back all around the head”); broken teeth; a sunken eye socket; multiple fractures of the mandible; bruises, lacerations, and abrasions about the torso; four broken ribs; internal bleeding in the chest c avity; extensive bleeding throu ghout the brain; and blood clots in the brain’s ventricles (“When t here is blood in these ventricle s it is considered a very serious injury because energy has to go through – not only through the skull but through the brain to cause the bleeding inside of the cavity we call ventricles”). The pathologist opined that a significant amount of force was em ployed to cause the victim’s injuries and that the cause of death was “[b]lunt force head trauma.” The jury was shown auto psy photographs that were referred to during the pa thologist’s testimony.

One of defendant’s accomplices, who pled guilty to second-degr ee murder, testified about his and defendant’s presence at the crime scene and that he was “pretty sure” that his “peoples played a part” in the attack, although he was not exac tly sure “who all.” The accomplice testified that no one in the group stood back and as ked the assailants to stop the attack. Defendant testified that he was at the crime scene but denied being involved in the beating. He claimed that he tri ed to break up the attack, tell ing the others to stop.

Defendant first argues that there was insufficient evidence to support his conviction with respect to the “intent to kill” and “premeditation and delibera tion” elements of first-degree murder. 1 We disagree. To convict a defe ndant of first-degree premedit ated murder, the

1 We review de novo the issue regarding whether there was suffic ient evidence to sustain a conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and determine whe ther a rational trier of fact could find that the essential elements of the crime were proved beyon d a reasonable doubt. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646-3- prosecution must prove that the defendant caused the death of t he victim, that the defendant intended to kill the victim (malice), that the intent to kill w as premeditated and deliberate, and that the killing was not justified or excused, if at issue. MC L 750.316(1)(a); People v Mendoza
, 468 Mich 527, 533-534; 664 NW2d 685 (2003); People v Kelly , 231 Mich App 627, 642; 588 NW2d 480 (1998); M Crim JI 16.1.

With respect to the intent to kill, it is well settled that su ch intent may be inferred from any facts in evidence. People v Unger , 278 Mich App 210, 223; 749 NW2d 272 (2008). “Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient to establish a def endant’s intent to kill.” Id. The intent to kill may be gleaned from the nature of the defendant's acts that constituted the assault, th e temper or disposition of mind with which the acts were apparently performed, whether the means use d would naturally produce death, any declarations by the de fendant, and all other circums tances calculated to throw light upon the intention with which the assault was made. People v Brown , 267 Mich App 141, 149 n 5; 703 NW2d 230 (2005). There is “no doubt that kicking a man to death can constitute first degree murder if the clear intent to kill is present.” People v Van Camp , 356 Mich 593, 601; 97 NW2d 726 (1959).

Here, the jury could reasonably have inferred from the evidenc e that defendant had the requisite intent to kill on the basis of: the length of time th at the assailants beat and kicked the victim; the multiple blows directly to the victim’s head; the v eracity and intensity of the strikes; defendant’s clear knowledge upon observation that the victim wa s directly absorbing the strikes to his body and head absent the ability to stop them; the evide nce that the beating continued even though the victim appeared unconscious and was entirely motionl ess; and the extensive and severe nature of the injuries suffered by the victim as describ ed by the pathologist. Defendant’s argument that there was no eviden ce of him making a declaration indicating or suggesting an intent to kill did not preclude the conviction, given that all of the circumstances surrounding the killing had to also be taken into consideration by the jury. Unger , 278 Mich App at 223; Brown
, 267 Mich App at 149 n 5. Also, the lack of a motive to kill did not necessarily mean tha t

NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellat e court must not interfere wit h the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992). Circumstantial evidence and the reas onable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of the crime. People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). “It is for the trier of fact . . . to determine what inferences may be fairly drawn from the evidence and to de termine the weight to be accorded to the inferences.” Hardiman , 466 Mich at 428. The prosecution need not negate every reasonable theory of innocence, but need only prove the e lements of the crime in the face of whatever contradictory eviden ce is provided by the defendant

. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).-4- defendant lacked the intent to kill. 2 Finally, in regard to defendant’s argument that there was no evidence that he struck the victim in the head causing his deat h, the argument fails to appreciate that defendant was also tried a s an aider and abettor. MCL 767 .39 provides:

Every person concerned in the commission of an offense, whethe r he directly commits the act constitu ting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed su ch offense.

In People v Robinson , 475 Mich 1, 15; 715 NW2d 44 (2006), our Supreme Court observed:

We hold that a defendant must possess the criminal intent to a id, abet, procure, or counsel the commission of an offense. A defendant i s criminally liable for the offenses the defendant s pecifically intends to aid or a bet, or has knowledge of, as well as those crimes that are the natural and probable c onsequences of the offense he intends to aid or abet. Therefore, the prosecutor mu st prove beyond a reasonable doubt that the defendant aided or abetted the commis sion of an offense and that the defendant intended to aid the charged offense, kne w the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable cons equence of the commission of the intended offense.

There was sufficient evidence to show that defendant aided and abetted in the assault of the victim, that he intended to do so, and that the natural and probable consequence of the assault, considering its extent a nd severity, was the death of the victim, resulting in the charged offense of first-degree murder. Moreover, the underlying basis for this argument, i.e., that defendant did not strike the victim in the head, is questionabl e, considering the eyewitness’s testimony about all four men repeat edly beating and kicking the victim and the mountain of bruises that enveloped the victim’s head. The eyewitness’s tes timony about defendant kicking the victim in the torso was in r eference to defendant’s actions after the eyewitness called out to the assailants, not before. R eversal is unwarranted.

With respect to premeditation and deliberation, premeditation means to think about something beforehand, while deliberation means to measure and e valuate the facets of a choice or problem. People v Plummer , 229 Mich App 293, 300; 581 NW2d 753 (1998). “Premeditation and deliberation require sufficient time to allo w the defendant to take a second look.” People v Schollaert , 194 Mich App 158, 170; 486 NW2d 312 (1992). Factors that may be considered in establishing premeditation include a defendant 's actions before and after the crime and the circumstances of the killing itself, including th e nature and location of any

2 We do note that there was evidence of an attempt to rob the vi ctim, and one could infer that the beating and killing was motivated by an effort to prevent the v ictim from ever going to the police; the accomplice’s testimony indicated that the assailant s knew the victim, which would have been problematic for the assailants.-5- wounds. Plummer , 229 Mich App at 300. Premeditation and deliberation can be i nferred from the circumstances surrounding a killing, and “[m]inimal circums tantial evidence is sufficient to prove an actor’s state of mind.” People v Ortiz , 249 Mich App 297, 301; 642 NW2d 417 (2002). The severity and length of time of a beating, People v Haywood , 209 Mich App 217, 230; 530 NW2d 497 (1995), the number of violent blows, Unger , 278 Mich App at 231, and the opportunity to reconsider actions before completing a killing, People v Ortiz-Kehoe , 237 Mich App 508, 520; 603 NW2d 802 (1999), can all give rise to an infe rence of premeditation and deliberation.

Here, the jury could reasonably have inferred from the evidenc e that the killing was premeditated and deliberate on the basis of: the fact that the assailants had to take the time to park their vehicle and approach the victim before engaging in t he assault; the length of time that the assailants beat and kicked the victim; the evidence that th e assault continued even after the eyewitness spoke up and despite the fact that the victim was es sentially unconscious and motionless; the evidence that none of the perpetrators sought t o stop the assault after it was initiated; and the extensive nat ure of the injuries suffered by the victim, which clearly took some amount of time to inflict before the beating finally stopped. Defendant and his accomplices had an opportunity to take a second l ook and reconsider their actio ns. There was sufficient evidence of premeditation and deliberation, an d reversal is unwarranted.

We also note that, in the context of defendant’s sufficiency a rguments, he contends that because the eyewitness’s testimony was allegedly inconsistent, it was rendered completely incredible and unreliable. This is merely an attack on the cre dibility of the eyewitness. As indicated above, we will not interfere with the jury’s role of assessing the credibility of witnesses. People v Wolfe , 440 Mich 508, 514-515; 489 NW2d 748 (1992). Furthermore, the alleged inconsistencies or problematic aspects of the eyewitnes s’s testimony were insignificant when viewed in the context of his overall testimony, which was strong and consistent on the facts most relevant to the crime.

Defendant next argues that the trial court erred in instructin g the jury on flight and on inferences regarding state of mind predicated on use of a weapo n. These arguments are meritless. A trial court’s determination as to whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006). There was evidence that defendant and his acc omplices fled the scene of the crime twice, once after the ey ewitness confronted them, althoug h not immediately, and next when, after returning to the scene in an attempt to retrieve th eir cell phones, they sped off after the eyewitness opened his door. 3 This was sufficient to instruct the jury on flight. People v Coleman , 210 Mich App 1, 4; 532 NW2d 885 (1995) (“The term ‘flight’ ha s been applied to such actions as fleeing the scene of the crime[.]”). Next, the trial court instructed the jury as follows:

3 The eyewitness had gathered up the cell phones after the assai lants inadvertently left them behind when fleeing the scene the first time.-6- The defendant’s state of mind may be inferred from the kind of weapon used, the type of wounds inflicte d, the acts and words of the d efendant and any other circumstances sur rounding the alleged killing.

This instruction was consistent with M Crim JI 16.21(2), a sta ndard instruction on inferring state of mind, which concept we discussed earlier in this opinion. Defendant maintains that there was no “weapon” used in the attack. First, there wa s evidence that the victim was struck with a Christmas ornament, which perhaps was not a dange rous weapon, but we note that the remainder of M Crim JI 16.21, which was not read to the jury, concerned “dangerous” weapons. Regardless, the instruc tion simply directed the jury to consider all of the circumstantial evidence in determining defendant’s state of min d; the trial court never directly told the jurors that a weapon was indeed used in the fatal assa ult.

Additionally, with respect to both claims of alleged instructi onal error, even assuming error, defendant had not established the requisite prejudice. MCL 769.26; People v Lukity , 460 Mich 484, 495; 596 NW2d 607 (1999).

Defendant next argues that the trial court erred by admitting photographs of the deceased victim. We review a trial court’s decision to admit photograph s for an abuse of discretion. People v Gayheart , 285 Mich App 202, 227; 776 NW2d 330 (2009). Photographic evi dence is generally admissible when relev ant, MRE 401, and if not unduly prejudicial, MRE 403. Gayheart , 285 Mich App at 227. Such evidence can be used to corroborat e the testimony of a witness, and it need not be excluded on the basis of gruesomene ss alone. Id. Photographs can also be relevant to establishing the elements of the crime, inc luding the “intent” element relative to first-degree murder. People v Mesik (On Reconsideration) , 285 Mich App 535, 544; 775 NW2d 857 (2009). Here, the photographs were properly admitted to corroborate the forensic pathologist’s testimony regarding the victim’s injuries and to assist the prosecution in establishing the intent to kill (nature and extent of injuries) , as well as premeditation and deliberation (extent of injuries). We agree with the trial cou rt’s determination that, while the photographs are gruesome, they “i llustrate[d] the injuries and the type of force necessary to create” the injuries. There was no abuse of discretion.

Defendant next alleges numerous instances of prosecutorial mis conduct. Given the failure to preserve the issue, we review for plain error affect ing substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). With respect to defendant’s claims pertaining to questions concer ning gang signs allegedly reflect ed in certain photographs of the assailants and as to underage drinking, defendant has simply fa iled to establish plain error affecting his substantial rights. Moreover, the trial court in structed the jury that the attorneys’ questions were not evidence, and jurors are presumed to follow their instructions. Unger , 278 Mich App at 235.

With respect to defendant’s claim that the prosecutor impermis sibly told the jurors that they would have to justify to him any finding that the eyewitne ss was not credible, it is clear that the prosecutor was simply emphasizing that the eyewitness was a credible witness and worthy of belief based on the facts and te stimony, which is proper argume nt. People v Dobek , 274 Mich App 58, 66; 732 NW2d 546 (2007).-7- Defendant next takes issue with the prosecutor’s remark that t he victim did not deserve what occurred to him and the prosecutor’s statement, “If you wa nt to talk about a totally senseless, brutal, unimaginable crime, you would be hard put to come up with something worse than this one.” “Appeals to the jury to sympathize with the vi ctim constitute improper argument.” People v Watson , 245 Mich App 572, 591; 629 NW2d 411 (2001). The prosecutor’s characterization of the crime w as consistent with the evidence. Although poignant, the prosecutor did not ask the jur y to convict defendant out of sym pathy for the victim. In any event, the trial court instructed, and the prosecutor reiterated, that the attorneys’ statements were not evidence. See Unger , 278 Mich App at 235.

Defendant also argues that the prosecutor impermissibly elicit ed a witness’s opinion about another witness’s credibil ity. The prosecution asked def endant why the eyewitness would have lied about what he had witnessed on the night of the incid ent. Defendant simply responded that he did not know the answer to that question. We fail to s ee how defendant was prejudiced by this questioning; assuming error, it was harmless.

Defendant next argues that the prosecutor misstated the law re garding the presumption of innocence and accomplice testimony . “A prosecutor’s clear miss tatement of the law that remains uncorrected may deprive a defendant of a fair trial,” but “if t he jury is correctly instructed on the law, an erroneous legal argument made by the prosecutor can pot entially be cured.” People v Grayer , 252 Mich App 349, 357; 651 NW2d 818 (2002). Assuming a misst atement of law by the prosecutor, reversal is unnecessary because the trial court specifically and accurately instructed the jury on the presumption of innocence and accompl ice testimony, curing any presumed misstatements.

Defendant next presents an argument that trial counsel was ine ffective in relationship to all of the preceding arguments addressed in this opinion to the extent that counsel failed to preserve the issues or waived them or was otherwise deficient i n his performance. Given our rulings on the prior issues, this argument fails, as nothing co unsel could have done would change the outcomes on these issues.

Finally, in his Standard 4 brief, defendant argues that he was denied a fair trial when the trial court admitted the results of an allegedly unconstitution al and highly suggestive photographic identification process. He also argues that trial counsel was ineffective for failing to object to the identificati on. “A photographic identificatio n procedure or lineup violates due process guarantees when it is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” People v McDade , 301 Mich App 343, 357; 836 NW2d 266 (2013).

Here, the eyewitness initially testified that he was shown two photographic lineups, one with two individuals and one with six indi viduals. He then tes tified that defendant, whom he had identified, was the only individual common to both. It is conc eivable that this, in and of itself, would have been impermissibly suggestive. However, the eyewitn ess later testified that he was actually shown only one lineup wi th six individuals and saw the other depiction later that evening on television. Further, he was only told that an assai lant “may” be in the lineup. There is nothing to indicate that such identification was impermissib ly suggestive. And as an objection to the photographic identificatio n would have been futile, defe ndant is unable to show that-8- counsel’s performance fellow below an objective standard of rea sonableness. People v Toma
, 462 Mich 281, 302; 613 NW2d 694 (2000). Reversal is unwarrante d.

Affirmed.

/s/ Michael J. Riordan /s/ William B. Murphy /s/ Mark T. Boonstra