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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 7, 2017

v No. 328474 Wayne Circuit Court ALVIN PERRY JORDAN, LC No. 15-000968-01-FC

Defendant-Appellant.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

A jury convicted defendant, Alvin Perry Jordan, of first-degre e premeditated murder, MCL 750.316(1)(a), first-degr ee felony murder, MCL 750.316(1)(b ), armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. 1 The trial court sentenced def endant to life imprisonment with out the possibility of parole for each murder conviction, and to 15 years to life impr isonment for the robbery conviction, those sentences to be served concurrently, but cons ecutive to a two-year term of imprisonment for the felony-fire arm conviction. We affirm defe ndant’s convictions, but remand for resentencing on his armed robbery conviction, and for corre ction of the judgment of sentence to specify one conviction for fir st-degree murder, supported by two different theories.

Defendant’s convictions arise from the December 29, 2014 shoot ing death of Will Wright, who was shot and killed during a robbery after a drug s ale. Testimony at trial indicated that Wright went to an apartment building to sell narcotic pill s to Tanzania Corbin, the mother of defendant’s girlfriend. After the sale, as Wright was exiting the building, he was approached by defendant. According to a witness, Lee Butler, the two men struggled over a gun. Defendant prevailed and Wright attempted to run away, but defendant shot him in the back. Defendant thereafter went through Wright ’s pockets and then left.

Both Corbin and Wright’s friend, Nathan Lemons, who had accomp anied Wright to the apartment building, denied that Wright was armed with a gun. C orbin also denied seeing defendant with a gun on the date of the offense, but admitted s eeing him with a gun the day

1 The jury acquitted defendant of an additional count of felonio us assault.-2- before. According to Corbin, after she heard two gunshots outs ide her apartment, defendant returned to her apartment and told her that he had shot Wright. Defendant removed his jacket, placed it in a closet, and then left. Shortly thereafter, the police arrived and seized a hooded sweatshirt during a search of Corbin’s apartment. The sweatshi rt contained blood, and DNA testing confirmed that the blood matched Wright’s DNA. Defenda nt was also identified as a “possible contributor” to DNA taken from blood found under fing ernail clippings f rom Wright’s
left hand.

I. SELF-DEFENSE

On appeal, we first address defendant’s argument that defense counsel was ineffective for failing to request a jury instruction on self-defense, despite alluding to such a theory during his closing argument. Because defenda nt did not raise an ineffecti ve assistance of counsel claim in a motion for a new trial or request an evidentiary hearing, our r eview of this issue is limited to errors apparent from the record. People v Snider , 239 Mich App 393, 423; 608 NW2d 502 (2000), citing People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).

Whether a person has been denied the effective assistance of c ounsel is a mixed question
of fact and constitutional law. People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007).
To establish a claim of ineffec tive assistance of counsel, defe ndant must show that: (1) counsel’s representation “fell below an obj ective standard of reasonablen ess”; and (2) but for counsel’s deficient performance, there is a reasonable probability that t he outcome of the proceeding would
have been different. People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012), citing Strickland v Washington , 466 US 668, 688-694; 104 S Ct 20 52; 80 L Ed 2d 674 (1984). T his Court presumes that defense counsel rendered effective assistan ce and exercised reasonable professional judgment in all significant decisions. Vaughn , 491 Mich at 670. Defendant must “overcome the strong presumption that counsel’s performance was born from a sound trial strategy.” People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). Because defendant
bears the burden of demonstrati ng both deficient performance an d prejudice, he ne cessarily bears the burden of establishing the factual predicate for his claim. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001).

Whether to request a particular jury instruction can be a matt er of trial strategy, and counsel is given wide discreti on with regard to matters of stra tegy. People v Gonzalez , 468 Mich 636, 644-645; 664 NW2d 159 (2003); People v Odom , 276 Mich App 407, 415; 740 NW2d 557 (2007). Although defense counsel discussed Butler’s testimony that he saw two men wrestling over a gun, counsel used this testimony, not to argue self-defe nse, but to argue that defendant could not be guilty of premeditated or felony-murder, and, at m ost, was guilty only of seconddegree murder due to the lack of time to premeditate. Counsel also argued that the prosecution had not shown that defendant took anything from Wright. Counse l further argued that someone else, perhaps a bystander, could ha ve taken the gun after the s hooting.

We cannot conclude that counsel’s decision to pursue this line of strategy, and to not request a self-defense instruc tion, was objectively unreasonabl e, particularly considering the lack of evidence supporting a legally v iable claim of self-defense. A person is entitled to use deadly force in self-defense if the person honestly and reasonably bel ieves “that he is in imminent danger of death or great bodily harm and that it is necessary f or him to exercise deadly force[.]”-3- People v Riddle , 467 Mich 116, 119; 649 NW2d 30 (2002). A person who acts as the initial aggressor cannot be found to have acted in justifiable self-def ense. People v Guajardo , 300 Mich App 26, 35-36, 43; 832 NW2d 409 (2013). Apart from Butler ’s testimony describing an actual struggle for the weapon, ve ry little other evidence supp orted a finding that defendant acted in self-defense. Indeed, the great body of evidence directly r efuted such a theory. Although Butler described a struggle over the gun, he also stated that t he gun was never in Wright’s hands while the two men were wrestling. Moreover, Butler testified t hat after defendant prevailed in the struggle, Wright was trying to run away when defendant shot him. The physical evidence confirmed that Wright was shot in the back from a distance of m ore than two feet, at an angle consistent with someone bent over trying to run away. Lemons s tated that Wright was unarmed, and Corbin similarly stated that she had never seen Wright witha gun. Lemons also testified that it was defendant who approached Wright as Wright was exiting th e apartment building after the drug sale. No evidence indicated that Wright approached or att acked defendant, or acted as an initial aggressor in the confront ation with defendant. Defenda nt did not testify about his own version of the shooting, or offer any witnesses who were suppor tive of a self-defense claim.

Given this evidence, counsel’s s trategy to attack the element of premeditation and to argue the lack of evidence of an underlying felony to support t he felony-murder charge was not objectively unreasonable. Moreover, to the extent that the tes timony describing a struggle over the gun could be deemed minimally sufficient to support a self- defense instruction, considering the lack of other evidence supporting a self-defense claim, and the body of evidence refuting any legal claim of self-defense, it is not reasonably probable that the outcome of the trial would have
been different if a self-defense instruction had been requested and given. Therefore, defendant was not prejudiced by counsel’s fai lure to request the instruct ion. 2

II. DEFENDANT’S LIFE-WITHOUT-PAROLE SENTENCES

Defendant argues that his manda tory sentence of life imprisonm ent without the possibility of parole violates the constitutional prohibition o n cruel and unusual punishment considering his age, 18 years, a t the time of the offense. Bec ause defendant did not challenge the constitutionality of his mandato ry life sentence in the trial c ourt, this issue is unpreserved. Accordingly, we review this issu e for plain error affecting def endant’s substantial rights. People

v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

As defendant observes, in Miller v Alabama , 567 US ___ ; 132 S Ct 2455, 2460; 183 L Ed 2d 407 (2012), the United States Supreme Court held that a s entence of “mandatory life without parole for those under the age of 18 at the time of the ir crimes violates the Eighth Amendment’s prohibition on ‘cru el and unusual punishments.’ ” The Court explained the

2 We also reject any suggestion that defense counsel improperly conceded defendant’s guilt of second-degree murder during counsel’s closing argument. Initia lly, we note that counsel specifically stated that he was not making such a claim. Regar dless, the decision whether to concede guilt on a lesser is a m atter of trial strategy, which this Court will not second-guess. People v Emerson (After Remand) , 203 Mich App 345, 349; 512 NW2d 3 (1994).-4- rationale behind drawing a distinction between 18-year-old offe nders and their younger counterparts, stating:

To recap: Mandatory life without parole for a juvenile preclude s consideration of his chronological age and its hallmark features—among them, imm aturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him —and from which he cannot usually extricat e himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide o ffense, including the extent of his participation in the conduct and the way fami lial and peer pressures may have affected him. Indeed, it ignores that he mi ght have been charged and convicted of a lesser offense if not for incompeten cies associated with youth—for example, his inability to deal with police offic ers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys . . . . And finally, this mandatory punishment disregards the possibili ty of rehabilitation even when the circumstances most suggest it. [ Id ., 132 S Ct at 2468.]

On appeal, defendant urges this Court to extend the holding in Miller to 18-year-old offenders. As discussed by this Court in People v Skinner , 312 Mich App 15, 23-27; 877 NW2d 482 (2015), the Miller decision represents a culminati on of several decisions by the United States Supreme Court over the last 30 years that h ave gradually eased the automatic imposition of harsh sentencing for young offenders. As noted in Skinner , these decisions are based on the perceived differences between juvenile offenders and those who have reach ed the age of majority. Id. at 23-27. In contrast, defendant poi nts only to a study noting th at young adult brains share common risk-taking or impulse control features with those of juveniles . Defendant’s study does support a position that, globally, mandatory life sentences for young off enders who have not reached full brain development is somehow unfair, or that the distinction be tween a 17-year-old and an 18- year-old is somehow “pure legal fiction.” Any philosophical me rit to defendant’s position aside, defendant points to no legal authority to support his position. Accordingly, we decline
defendant’s invitation to extend Miller to 18-year-old offenders. The t rial court did not violate the constitutional prohibition on cruel and unusual punishment by adhering to the demarcation between those who have attained the age of 18 years and those u nder 18 years of age, and by thereby imposing the mandatory sentence of life imprisonment wi thout parole for defendant’s conviction of first-degree murder.

We agree with defendant, however, that the trial court erred b y entering a judgment of sentence reflecting two convict ions and two life sentences for first-degree murder. Although the jury found defendant guilty of both first-degree premeditated m urder and first-degree felony murder, because the two convictions arise from the death of a s ingle victim, they violate the double jeopardy protection against multiple punishments for the same offense. People v Long

, 246 Mich App 582, 588; 633 NW2d 843 (2001). Accordingly, we re mand for modification of the judgment of sentence to specify a single conviction of firs t-degree murder supported by two theories: premeditated murder and felony murder. Id. ; People v Bigelow , 229 Mich App 218, 220-221; 581 NW2d 744 (1998).

III. DEFENDANT’S STANDARD 4 BRIEF-5- Defendant raises additional issues in a pro se supplemental br ief filed pursuant to Supreme Court Administrati ve Order No. 2004-6, Standard 4.

A. ADMISSIBILITY OF EVIDENCE

Defendant challenges the admi ssion at trial of (1) photographs of him that were obtained from his cell phone, and (2) the hooded sweatshirt recovered by the police during their search of Corbin’s apartment. Defendant argues that each of these items should have been excluded as evidence because they were obtained through an illegal search. Defendant acknowledges that he never challenged the admissibility of this evidence in the tria l court, leaving the issues unpreserved. Therefore, our review is limited to plain error a ffecting defendant’s substantial rights. Carines , 460 Mich at 763-764. To constitute a “plain” error, the erro r must be “clear or
obvious.” Id. Defendant further argues, however, that defense counsel was i neffective for failing to seek suppression of this evidence. Because defendan t did not raise an ineffective assistance of counsel claim in an appropriate motion in the tri al court, review of that issue is limited to errors apparent from the record. Snider , 239 Mich App at 423.

“In general, searches conducted without both a warrant and pro bable cause to believe evidence of wrongdoing might be located at the place searched a re unreasonable per se.” Lavigne v Forshee , 307 Mich App 530, 537; 861 NW2d 635 (2014). Unless an except ion applies, evidence that has been seized in violation of the cons titutional prohibition against
unreasonable searches and seizures must be excluded from trial. Id . at 537-538; People v Chowdhury , 285 Mich App 509, 516; 775 NW2d 845 (2009).

Defendant correctly asserts tha t a warrant is generally requir ed before the police may lawfully search a suspect’s phone. Riley v California , ___ US ___; 134 S Ct 2473, 2494-2495; 189 L Ed 2d 430 (2014); People v Gingrich , 307 Mich App 656, 665-666; 862 NW2d 432 (2014). Although defendant argues that the police unlawfully s earched his phone, he points to no evidence addressing the circumstances under which the police obtained the photos or other data from his phone. The lower court record discloses that pla intiff filed a pretrial motion to admit photos obtained from defen dant’s cell phone. Plaintiff’s brief in support of that motion specifically states that “[a] search warrant was executed on th e contents of Defendant’s cell phone that resulted in 692 images being recovered.” Defendant never challenged the veracity of that statement, and he has presented nothing on appeal to indic ate that this assertion is false or inaccurate, that the referenced w arrant was somehow defective, or to establish any other irregularity. Because the record indicates that the cell phone photos were obtained pursuant to a search warrant, and defendant h as not presented anything to sug gest otherwise, we conclude that defendant has failed to demonstrate a plain error related to th e seizure or admission of the cell phone photographs. Furthermore, absent any basis for concludin g that the cell phone photos were illegally obtained, defendant’s related ineffective assist ance of counsel claim cannot succeed. Counsel is not required to raise a meritless issue. People v Moorer , 262 Mich App 64, 76, 683 NW2d 736 (2004).

Defendant also challenges the admission of the hooded sweatshi rt that the police recovered during a search of Corbin’s home shortly after the of fense. “One established exception to the general warrant and probable cause requirement s is a search conducted pursuant

to consent.” People v Borchard–Ruhland , 460 Mich 278, 294, 597 NW2d 1 (1999). “The-6- consent exception to the warrant requirement allows a search an d seizure when consent is unequivocal, specific, and freely and intelligently given.” People v Frohriep , 247 Mich App 692, 702; 637 NW2d 562 (2001) (quotation omitted). Defendant l acks standing to assert this issue. “The right to be free from unreasonable searches and se izures is personal, and the right cannot be invoked by a third party.” People v Mahdi , ___ Mich App ___, ___; ___ NW2d ___ (2016); slip op at 5. Therefore, defense counsel’s stipulation to the sweatshirt’s admission was
not ineffective assistance and w e deny defendant’s request for a remand on this issue.

B. JURY VERDICT FORM

Defendant next argues that the jury verdict form was defective because it did not allow the jury to choose a “general not guilty” option in which it co uld find defendant not guilty of all charges. Defendant acknowledges that there was no objection to the verdict form at trial. Thus, this issue is unpreserved and our review is limited to plain error affecting defendant’s substantial rights. Carines , 460 Mich at 763-764. We find no merit to this issue.

Defendant correctly observes that “a criminal defendant is dep rived of his constitutional right to a jury trial when the jury is not given the opportunit y to return a general verdict of not guilty.” People v Wade , 283 Mich App 462, 467; 771 NW2d 447, lv den 486 Mich 909 (200 9). However, this is not what occurred here. The jury verdict form used at trial presented the jury with the following options for c ount 1, first-deg ree premeditat ed murder:

____ NOT GUILTY

OR

____ GUILTY OF HOMICIDE –MURDER FIRST DEGREE-PREMEDITATED

OR

____ GUILTY OF THE LESS SERIOUS OFFENSE OF HOMICIDE- MURDER SECOND DEGREE [Jury verdict form, p 1.]

Similar options, including a specific “not guilty” option, were provided for each of the other charged offenses. The verdict form clearly provided the jury w ith the option of finding defendant “not guilty” of each charged offense. Thus, there wa s no error, plain or otherwise. In addition, because defense counsel is not required to raise a me ritless issue, Moorer , 262 Mich App at 76, counsel was not ineffective for failing to object to the verdict form.

C. ARMED ROBBERY SENTENCE

Defendant also argues, and we a gree, that the trial court erre d when it imposed a sentence of 15 years to life for defendant’s armed robbery conviction. The trial court’s sentence violates MCL 769.9(2), which provides that “[t]he court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.” A violation of MCL 769.9(2) renders a sentence whol ly invalid and requires-7- resentencing de novo. People v Parish , 282 Mich App 106, 108; 761 NW2d 441 (2009). Accordingly, we vacate defendant’s invalid sentence for armed r obbery and remand for resentencing on that offense.

We affirm defendant’s convictions, but vacate his sentence for armed robbery and remand for resentencing on that offense, and remand for correct ion of the judgment of sentence to specify a single conviction for first-degree murder, support ed by two different theories. We do not retain jurisdiction.

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne Krause