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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 15, 2015

v No. 321815 Macomb Circuit Court CHRISTOPHER LAWRENCE TULL, LC No. 94-002418-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and J ANSEN and O WENS , JJ.

P ER C URIAM

. Defendant, Christopher Tull, app eals as of right his 1995 jury trial conviction of felony murder, MCL 750.316(b), predicated on kidnapping, MCL 750.349, for which he was sentenced to life without parole. We affirm.

Defendant was tried separately from his codefendant, Matthew A lder. The prosecution’s theory was that defendant aided a nd abetted Alder in kidnapping the victim, while Alder killed the victim and subsequently burned her body. The victim met Al der and defendant at a bar in Roseville in September 1994, and the three of them went to the home where Alder lived. Alder forced the victim to perform sexual acts. Defendant and Alder took the victim out to defendant’s truck and Alder killed her by either strangulation or suffocati on. Her body was taken to an abandoned garage in Detroit , where Alder burned the body.

The defense theory was that def endant had nothing to do with t he victim’s death, but that he was merely present when Alder committed the offense. Defens e counsel argued that, at most, defendant was guilty of being anaccessory after the fact. The defense called two prison inmates who testified that Alder admitted that he killed the victim and that defendant had nothing to do with the murder. Defendant was acquitted of premeditated murde r and convicted of felony murder.

Following his conviction in 1995, defendant filed a claim of a ppeal with this Court, which was dismissed on jurisdictional grounds. People v Tull , unpublished order of the Court of Appeals, entered December 5, 1996 (Docket No. 194361). Afterwa rds, defendant continued to attempt to appeal his convicti on through post-judgment proceedi ngs. In 2013, this Court denied defendant’s delayed application for leave to appeal an order en tered by the trial court, which denied defendant’s motion for reissuance of his judgment of sen tence. People v Tull
, unpublished order of the Court of Appeals, entered May 24, 2013 (Docket No. 311876). The-2- Supreme Court, however, in lieu of granting leave to appeal, re manded the case to Macomb Circuit Court to reissue the judgm ent of sentence so that defen dant could pursue his appeal as of right. People v Tull , 495 Mich 945; 843 NW2d 496 (2014). The Supreme Court held th at defendant was deprived of the effective assistance of counsel w hen his trial counsel did not follow through by filing the necessary paperwork to begin the a ppellate process in 1995, which prevented defendant from perfecting his appeal of right at thattime. Id. The trial court reissued the judgment of sentence in May 2014, and defendant is now appe aling his conviction for the first time.

On appeal, defendant first ar gues his trial counsel was ineffe ctive for failing to object to various errors in the jury instr uctions read by the trial court . “The denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo.” People v Brown , 279 Mich App 116, 140; 755 NW2d 664 (2008).

Criminal defendants have a right to the effective assistance o f counsel under the United States and Michigan Constitutions. US Const, Am VI; Const 1963 , art 1, § 20. However, effective assistance of counsel i s presumed, and the defendant bears a heavy burden of proving otherwise. People v Vaughn , 491 Mich 642, 670; 821 NW2d 288 (2012). To establish that a defendant’s trial counsel was ineffective, a defendant must sho w: (1) that counsel’s performance fell below an objective standard of reasonableness under prevai ling professional norms and (2) that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. Strickland v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also Vaughn , 491 Mich at 669. Defendant must also overcome the strong presumption that counsel’s performance constituted sound trial strategy. People v Dixon , 263 Mich App 393, 396; 688 NW2d 308 (2004).

Although defendant does not challenge the jury instructions di rectly, it is necessary to review the propriety of the ju ry instructions because counsel’s failure to object to the instructions forms the basis of defendant’s claim of ineffective assistance of counsel.

“A criminal defendant has a constitutional right to have a jur y determine his or her guilt from its consideration of every essential element of the charge d offense.” People v Kowalski
, 489 Mich 488, 501; 803 NW2d 200 (2011). However, instructional errors that misinform the jury of an offense’s elements will not be grounds for reversal “if the instruction fairly presented the issues to be tried and adequa tely protected the defendant’s rights.” Id. at 501-502. Jury instructions must be viewed in the ir entirety to determine whet her any error occurred. Id. at 501.

First, defendant argues that tr ial counsel was ineffective for failing to object to the second-degree murder instruction. Both parties recognize that the trial court verbally misinformed the jury of the elements of second-degree murder. Rather than instructing the jury on second-degree murder, the tria l court actually instructed th e jury on first- degree felony murder.

Under existing law at the time of defendant’s trial, in first- degree murder cases, the trial court was automatically required to instruct the jury on the ne cessarily included lesser offense of second-degree murder, even if the instruction was not requested or was objected to. People v Jenkins , 395 Mich 440; 236 NW2d 503 (1975), overruled by People v Cornell , 466 Mich 335;-3- 646 NW2d 127 (2002). 1 See also People v Carter , 395 Mich 434, 438; 236 NW2d 500 (1975) (stating that “second-degree murder is first-degree murder minus premeditation or the enumerated felony”). By instructing the jury on first-degree felony murder instead of seconddegree murder, the trial court, in effect, did not instruct the jury on the necessarily included lesser offense of second-degree murder, as it was required to d o. Therefore, trial counsel should have objected to this instruction, and because he did not, his performance fell below an objective standard of reasonableness under prevailing professional norms.

Defendant, however, cannot show that but for trial counsel’s f ailure to object to the second-degree murder instruction, there is a reasonable probabi lity the verdict would have been different. The instructions, as a whole, fairly presented the issues to be tried and adequately protected the defendant’s rights. The jury was instructed that they could consider the lesser offense of second-degree murder. The record also indicates tha t jury requested a nd was provided with a written copy of the instr uctions, including the correct second-degree murder instruction, which was sufficient to cure a ny potential prejudice. Further, the verdict form stated that the jury may only return one verdict and provided the options of (1) notguilty, (2) guilty of first-degree premeditated murder, (3) guilty of first-degree felony murder, (4) guilty of both first-degree premeditated murder and first-degree felony murder, (5) guilty of the lesser offense of seconddegree murder, or (6) guilty of the lesser offense of accessory after the fact. Finally, this Court has held that where an instructi on adds an element to a charged offense, this places an additional burden on the prosecution, which does not result in prejudice t o the defendant. People v Byrd
, 133 Mich App 767, 774-775; 350 NW2d 802 (1984).

Defendant also argues that trial counsel was ineffective for f ailing to object to the trial court’s deliberation instruc tions, which are as follows:

In this case, there are several different crimes that you may consider. When you discuss the case, you must consider the crime of first degree premeditated murder and first degree felony murder first.

If you all agree that the Defendant is guilty of that crime, y ou may stop your discussion and return your verdict.

If you believe the Defendant is not guilty of first degree pre meditated murder or first degree felony murder or if you cannot agree abo ut that crime, you should consider the less serious crime of second degree murder and accessory after the fact.

1 Cornellheld that a requested instruction on a necessarily included le sser offense must be supported by the evidence; there fore, an instruction on second- degree murder, as a necessarily included lesser offense of first-degree murder, is no longer au tomatically required. Cornell , 466 Mich at 358 n 13. However, its ruling had limited retroactive effect, and only applied to those cases pending on appeal in which t he issue had been raised and preserved. Id. at 367.-4- You decide how long to spend on first degree premeditated murd er or first degree felony murder before discussing second degree murder or accessory after the fact.

You can go back to first degree premeditated murder or first d egree felony murder after discussing second de gree murder if you want to.

Because in the last line the trial court failed to instruct the jury that it could go back to firstdegree murder after discussing both second-degree murder and accessory after the fact, defendant argues that the instruction removed the charge of acc essory after the fact from the jury’s consideration.

With the exception of the last line, the deliberation instruct ions comported with M Crim JI 3.11, which our Supreme Court has said “is a sound instructi on” and should be given. People v Pollick , 448 Mich 376, 386; 531 NW2d 159 (1995). Failing to mention a ccessory after the fact in the last line did not preclude the jury from considering the charge of accessory after the fact, and did not have a coercive pot ential that would require revers al. See id. (noting that deliberation instructions that have an undue tendency of coerci on will require reversal). Accordingly, trial counsel was not ineffective for failing to o bject. “Failing to advance a meritless argument or raise a futile objection does not constit ute ineffective assistance of counsel.” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

Moreover, even if the omission was error and trial counsel sho uld have objected, in light of the overall instructions defendant is unable to establish pr ejudice. The instruction is permissive and does not require the jury to deliberate in the w ay instructed. It simply told the jury that once they consider the l esser offense, they are allow ed to go back and discuss the more serious offense. The jury was earlier instructed that it could consider the charge of accessory after the fact, and provided the necessary elements. The trial court also instructed the jury on the differences between aiding and abetting and accessory after the fact. As noted earli er, the verdict form also indicated that the jury could find defendant guilty o f one of the lesser-included offenses of second-degree murder and accessory after the fact. Because the jury instructions fairly presented the issues to be tried and adequately protecte d the defendant’s rights, defendant is unable to show that there is a reasonable probability that b ut for counsel’s error the verdict would have been different.

Defendant next argues that trial counsel was ineffective for f ailing to object to the trial court’s overall instructions because they emphasized the first- degree murder charge. Defendant specifically notes that the term “ first-degree murder” was used excessively and argues that it was unnecessary to mention first-degree murder when instructing the jury on accessory after the fact, aiding and abetting, state of mi nd, order of deliberation, and unanimity of the verdict. This assertion, however, is without merit. To the extent that the trial court mentioned the term “firstdegree murder” when giving these instructions, it was part of t he model criminal jury instructions of which the trial court read. Further, defendanthas not explained how any of the instructions given were unnecessary or how they were unsupporte d by the evidence. Rather, the record shows that all of the instructions, with the exception o f those discussed earlier, comported with the model criminal jury instructions and fairly presented the issues to be tried, while-5- adequately protecting defendant’s rights. Therefore, trial cou nsel was not ineffective for failing to object to the instructi ons in their entirety.

Defendant further argues that trial counsel was ineffective fo r failing to object to the trial court’s kidnapping instruction, which he argues constructively amended the information. At the time of defendant’s trial, th e kidnapping statute, MCL 750.349, read,

Any person who wilfully, malici ously and without lawful author ity shall forcibly or secretly confine or i mprison any other person withi n this state against his will, or shall forcibly carry or send such person out of th is state, or shall forcibly seize or confine, or shall inveigle or kidnap any othe r person with intent to extort money or other valuabl e thing thereby or with intent either to cause such person to be secretly confined or i mprisoned in this state agai nst his will, or in any way held to service against his will, shall be guilty of a felo ny, punishable by imprisonment in the state prison f or life or for any term of ye ars.
Defendant was charged with “forcible confinement with intent to secretly confine” kidnapping under the statute, whi ch requires proof of specific intent to s ecretly confine. People v Jaffray
, 445 Mich 287, 298-299; 519 NW2d 108 (1994). This charge, howev er, was dismissed before trial. Defendant was also charged with felony murder, based on kidnapping, but the information did not specify a type. At the close of proofs, the trial cour t instructed the jury on M Crim JI 19.2, the instruction given when kidnapping is the underlying o ffense of felony murder. This instruction coincides with for cible-confinement kidnapping unde r the statute and does not require a showing of specific intent. People v Wesley , 421 Mich 375, 388; 365 NW 2d 692 (1984).

Defendant argues that because he was originally charged with “ forcible confinement with intent to secretly confine” kidnapping, this had to be the type of kidnapping that established the predicate offense of kidnapping for felony murder, even though the kidnapping charge was dismissed before trial. Therefore, because the trial court ins tructed the jury on forcibleconfinement kidnapping that only requires a showing of general intent, the instruction constructively amended the inf ormation and defendant lacked not ice of the charges against him.

It is well settled, however, th at kidnapping is a single offen se and the various conduct listed in MCL 750.349 constitute alternative means of proving a single offense. Jaffray , 445 Mich at 296-297. The alternativ e means do not support convicti ons of separate and distinct kidnapping offenses, so the need to delineate which theory form s the basis for the charge is not necessary. See People v Bergevin , 406 Mich 307, 311-312; 279 NW2d 528 (1979) (noting that at trial the prosecutor is free to argue all the alternative ba ses for kidnapping when supported by the evidence). Even jury unanimity is not required with altern ative theories of kidnapping. People v Gadomski , 232 Mich App 24, 31; 592 NW2d 75 (1998). Therefore, by being charged with felony murder, with kidnapping as the predicate felony, de fendant is put on notice of the nature of the charge against him and that the prosecutor is fre e to argue any of the alternative theories listed in the statute. See People v Adams , 389 Mich 222, 243-244; 205 NW2d 415 (1973). Stated another way, if defendant was found not guilty of kidnapping based on one theory, he could not be charged with kidnapping again based on another theory. Id. at 244.-6- Accordingly, the kidnapping instru ction did not constructively amend the information, and therefore, trial counsel was not ineffective for failing to obj ect to it.

In his supplemental brief, filed pursuant to Supreme Court Adm inistrative Order No. 2004–6, Standard 4, defendant also argues that trial counsel wa s ineffective for failing to raise the defense of duress. First, “it is well established that dur ess is not a defense to homicide.” People v Henderson , 306 Mich App 1, 5, 854 NW2d 234, 238 (2014) (citations omitte d). “The rationale underlying the common law rule is that one cannot sub mit to coercion to take the life of a third person, but should risk o r sacrifice his own life inste ad.” People v Dittis , 157 Mich App 38, 41; 403 NW2d 94 (1987). In Henderson , this Court applied the rationale in Dittis to hold that duress is also not a defense to aiding and abetting murder

. Henderson , 306 Mich App at 5-6.

Defendant, however, argues that duress was available as a defe nse to the predicate offense of kidnapping. 2 To allow defendant to assert the defense of duress for the pr edicate felony of felony murder is seemingly contradictory to the ratio nale that “one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” Dittis , 157 Mich App at 41. Nevertheless, if duress was an available defense to kidnapping, defendant has failed to carry his burden to produce evidence of the essential elements of the defense, which include the following:

A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;

B) The conduct in fact caused such fear of death or serious bod ily harm in the mind of the defendant;

C) The fear or duress was operating upon the mind of the defend ant at the time of the alleged act; and

D) The defendant committed the act to avoid the threatened harm . [ People v Lemons , 454 Mich 234, 246-247; 562 NW2d 447, 453 (1997).]

The threat must be “present, imminent, and impending.” Id. (internal quotation marks and citation omitted). Defendant claims on appeal that he was not a willing participant in the kidnapping, but that Alder, a former United States Marine, thre atened him with a knife if he did not do as directed, and defendant feared for his life. Defenda nt, however, has not shown how this alleged threat by Alder “was sufficient to create in the m ind of a reasonable person the fear of death or serious bodily harm,” id. at 247, particularly where the evidence indicates that

2 Defendant cites People v Rolston , 51 Mich App 146; 214 NW2d 894 (1974), to support this assertion, where this Court rev ersed a kidnapping conviction on grounds of double jeopardy and collateral estoppel, where the defendant had been acquitted of a previous murder charge arising out of the same criminal transaction based on the defense of duress. However, that case did not involve a felony murder charge predicated on kidnapping, and si nce that opinion, it has been well established that duress is no longer a defense to homicide

.-7- defendant willingly drove Alder and the victim from the bar to the residence where Alder lived, followed Alder into the bedroom while he forced the victim to p erform oral sex, stayed in the bedroom with the victim while Alder went to retrieve a paper ba g, and appeared to be in a happy mood while filling gasoline containers that were used to the burn the victim’s body. Defendant claims that he would have testifi ed at trial regarding the dure ss he was under and that he provided trial counsel with a list of witnesses who would have attested to his good character. Defendant, however, does not provide that list on appeal. Furt her, defendant made it clear at trial that he did not wish to testify. Accordingly, defendant has no t shown that his trial counsel was ineffective for failing to raise duress as a defense to the cha rges in this case.

Finally, defendant argues in his Standard 4 brief that there w as insufficient evidence to prove that he kidnapped the victim beyond a reasonable doubt, a nd therefore, the trial court erred by denying his motion for a directed verdict for first-degree f elony murder, predicated on kidnapping. We review the record de novo “to determine whether the evidence presented by the prosecutor, viewed in the light m ost favorable to the prosecuto r, could persuade a rational trier of fact that the essential elements of the crime charged were prov ed beyond a reasonable doubt.” People v Aldrich , 246 Mich App 101, 122-123; 631 NW2d 67 (2001).

Specifically, defendant argues that he was charged with secret -confinement kidnapping as the predicate felony for felony murder, and therefore, there was insufficient evidence of
secrecy. 3 However, as discussed earlier, the prosecution was free to ar gue the alternative theories of kidnapping at trial, and in this case, the prosecut ion proceeded to trial on forcibleconfinement kidnapping, which re quires proof beyond a reasonabl e doubt that defendant willfully, maliciously, and wit hout lawful authority, forcibly seized or kidnapped the victim against her will. Wesley , 421 Mich at 388. While this generally requires “an asportati on of the victim which is not merely incide ntal to an underlying crime,” this is not the case when the crime involves murder. Id. Asportation incidental to murd er is sufficient asportation fo r a kidnapping conviction. Id.

The evidence shows that Alder’s neighbor overheard defendant, who was with Alder at the time, arguing on the phone earlier that evening with someon e and being insistent that he was going to go out that evening. Def endant drove Alder and the vi ctim from the bar to the residence where Alder lived. Alan Klakulak, a long-time mutual friend of the homeowner and Alder, was sleeping on the couch and saw defendant follow Alder as Alder p ulled the victim into the bedroom, despite her telling him “no, no, no.” Klakulak testif ied that defendant remained in the room, while Alder told the victim to perform oral sex or he wou ld bash her head in. Defendant stayed in the room with the victim while Alder went to the gara ge and came back with a paper bag. The bag was then placed over the victim’s head and Alder and defendant escorted her out of the house. The three of them left in defendant’s vehicle. Two men matching the descriptions of defendant and Alder were subsequently seen filling gas conta iners at a gas station down the road from the residence and bot h appeared to be in a “very happ y, talkative” mood. Viewing this evidence in a light most favorable to the prosecution, the jury could reasonably conclude that

3 Defendant does not challenge the e vidence with regard to the o ther elements of felony murder.-8- defendant willfully, maliciously, and without lawful authority, forcibly confined the victim against her will. Therefore, the trial court did not err by de nying defendant’s motion for a directed verdict.

Affirmed.

/s/ Stephen L. Borrello /s/ Kathleen Jansen /s/ Donald S. Owens