If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

January 7, 2021

v No. 348750

Genesee Circuit Court

ERIC PAUL WILSON, LC No. 18-042749-FC

Defendant-Appellant.

Before: BOONSTRA, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 

750.317;

1

discharge of a firearm in a building causing death, MCL 750.234b(5); carrying a 

concealed weapon (CCW), MCL 750.227; and possession of a firearm during the commission of 

a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to 288 to 480 months’

imprisonment for his second-degree murder conviction, 180 to 360 months’ imprisonment for his 

discharging a firearm in a building causing death conviction, 40 to 60 months’ imprisonment for 

his CCW conviction, and two years’ imprisonment for his felony-firearm conviction. We affirm.

I. UNDERLYING FACTS

Defendant shot and killed the victim after a dispute about bus passes at the Mass 

Transportation Authority (MTA) bus station in Flint, Michigan, on December 1, 2017. The 

shooting was captured on surveillance video, which showed defendant pulling out a gun and firing 

five times at the victim after the victim pushed defendant out of the building. During a police 

interview the day after the shooting, defendant admitted to shooting and killing the victim, but 

asserted that he did so in self-defense. 

 

1 Defendant was charged with first-degree premeditated murder, MCL 750.316(1)(a), but was 

convicted of the lesser included offense of second-degree murder. 
-2-

Before the jury was sworn in for defendant’s trial, defendant objected to the composition 

of the juror venire and argued that it included too few individuals who were African-American. 

Defendant argued that the composition of the jury pool violated his Sixth Amendment right to be 

tried by a jury chosen from a fair cross section of his community. Defendant noted that such an 

argument required him to prove a historical pattern of unreasonable underrepresentation of 

African-Americans in criminal jury venires in Genesee County, where he was tried. The trial court 

held an evidentiary hearing regarding the objection and accepted testimony from the Genesee

Circuit Court jury board supervisor, Christine Greig. Greig stated that her department did not keep 

records regarding the racial composition of venires. Defendant asserted that, considering the lack 

of data, he was being required to prove a fact that could not be proven. The trial court noted the 

apparent lack of data, but, relying on precedent from our Supreme Court putting the burden on 

defendant to prove that fact, overruled defendant’s objection to the jury pool.

At trial, defendant testified that he saw the victim grab a gun from the waistband of his 

pants, which precipitated defendant’s decision to shoot the victim. The surveillance video shows 

the victim from behind, so his waistband was not visible. The prosecution, however, elicited 

testimony at trial from multiple witnesses who knew the victim personally, stated that he was not 

known to carry a gun, and opined that the victim did not appear to be in an aggressive stance in 

the surveillance video. The prosecution also introduced testimony from eyewitnesses at the scene 

of the shooting who stated that the victim did not have a gun that day. As noted, the jury convicted 

defendant, and this appeal followed.

II. JURY INSTRUCTIONS

Defendant argues that the trial court erred by failing to instruct the jury regarding voluntary 

manslaughter as a lesser included offense of first-degree murder. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To preserve an allegation that the trial court failed to provide a necessary jury instruction, 

the defendant must request that instruction during the trial. People v Everett, 318 Mich App 511, 

526; 899 NW2d 94 (2017). In his brief on appeal, defendant contends that he requested a 

voluntary-manslaughter instruction and that the request was denied by the trial court. As the 

prosecution points out, however, a review of the record shows that defendant never requested such 

an instruction during trial.2 Thus, this issue is not preserved for our review. See id.

Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich 108, 116; 869 

NW2d 829 (2015).

To avoid forfeiture under the plain error rule, three requirements must be met: 1) 

error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the 

plain error affected substantial rights. The third requirement generally requires a 

showing of prejudice, i.e., that the error affected the outcome of the lower court 

 

2 Defendant was actually tried twice. Only issues related to defendant’s second trial are at issue

on appeal.
-3-

proceedings. It is the defendant rather than the Government who bears the burden 

of persuasion with respect to prejudice. Finally, once a defendant satisfies these 

three requirements, an appellate court must exercise its discretion in deciding 

whether to reverse. Reversal is warranted only when the plain, forfeited error 

resulted in the conviction of an actually innocent defendant or when an error 

seriously affected the fairness, integrity or public reputation of judicial proceedings 

independent of the defendant’s innocence. [People v Carines, 460 Mich 750, 763-

764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]

“A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable 

dispute.’ ” People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018). 

B. LAW AND ANALYSIS

“A criminal defendant has the right to have a properly instructed jury consider the evidence 

against him.” People v Head, 323 Mich App 526, 537; 917 NW2d 752 (2018) (quotation marks 

and citation omitted). “One of the essential roles of the trial court is to present the case to the jury 

and to instruct it on the applicable law with instructions that include all the elements of the offenses 

charged against the defendant and any material issues, defenses, and theories that are supported by 

the evidence.” People v Craft, 325 Mich App 598, 606-607; 927 NW2d 708 (2018) (quotation 

marks and citation omitted). “Further, when a jury instruction is requested on any theories or 

defenses and is supported by evidence, it must be given to the jury by the trial judge.” People v 

Mills, 450 Mich 61, 81; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). “A requested 

instruction on a lesser included offense is proper if the greater offense requires the jury to find a 

disputed factual element that is not part of the lesser included offense and a rational view of the 

evidence would support it.” People v Haynie, ___ Mich ___, ___; 943 NW2d 383, 383 (2020). 

Relevant to this case, “[w]hen a defendant is charged with murder, the trial court must give an 

instruction on voluntary manslaughter if the instruction is supported by a rational view of the 

evidence.” People v Mitchell, 301 Mich App 282, 286; 835 NW2d 615 (2013) (quotation marks 

and citation omitted). 

Consequently, in this case, we must consider whether a rational view of the evidence would 

have permitted the jury to find defendant guilty of the lesser included offense of voluntary 

manslaughter. See id. “[T]he elements of voluntary manslaughter are included in murder, with 

murder possessing the single additional element of malice.” People v Reese, 491 Mich 127, 144; 

815 NW2d 85 (2012) (quotation marks and citation omitted). “The elements of voluntary 

manslaughter are: (1) the defendant must kill in the heat of passion, (2) the passion must be caused 

by an adequate provocation, and (3) there cannot be a lapse of time during which a reasonable 

person could control his passions.” People v McMullan, 284 Mich App 149, 156; 771 NW2d 810 

(2009) (quotation marks and citation omitted), aff’d 488 Mich 922 (2010). As used in the 

definition of manslaughter the word “provocation” is a term of art: “The provocation necessary to 

mitigate a homicide from murder to manslaughter is that which causes the defendant to act out of 

passion rather than reason; that is, adequate provocation is that which would cause the reasonable 

person to lose control.” People v Roper, 286 Mich App 77, 87; 777 NW2d 483 (2009) (quotation 

marks and citation omitted). Thus, “[P]rovocation is not an element of voluntary manslaughter . . . 

[r]ather, provocation is the circumstance that negates the presence of malice.” Reese, 491 Mich at 

144 (citation omitted), quoting People v Mendoza, 468 Mich 527, 536; 664 NW2d 685 (2003). 
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And “malice” itself is defined as the intent to kill, the intent to cause great bodily harm, or the 

intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of 

such behavior is to cause death or great bodily harm. People v Baskerville, ___ Mich App ___, 

___; ___ NW2d ___ (2020) (Docket No. 345403); slip op at 3-4. 

The element of voluntary manslaughter most relevant to defendant’s argument is whether 

there was a reasonable view of the evidence under which a jury could have concluded that 

defendant killed the victim “in the heat of passion.” McMullan, 284 Mich App at 156 (quotation 

marks and citation omitted). Stated differently, the trial court was required to give the instruction 

for voluntary manslaughter as a lesser included offense of first-degree murder only if, in pertinent 

part, a rational view of the evidence could support the conclusion that defendant shot the victim in 

the heat of passion. See Mitchell, 301 Mich App at 286; McMullan, 284 Mich App at 156. During 

the trial, there was testimony that defendant and the victim were in an argument about defendant 

selling bus passes in the MTA station. In addition to the verbal dispute between defendant and the 

victim, defendant and his girlfriend, Aareonna Miller, testified that the victim continuously pushed 

defendant as he told defendant to leave the building. Despite that testimony potentially supporting 

a finding of provocation, Miller did not testify regarding defendant’s emotional reaction to being 

pushed or told to leave the bus station. Indeed, Miller stated that defendant was focused on his 

conversation with Miller, and was mostly ignoring the victim. Other witnesses in the bus station 

also described the argument between defendant and the victim, and the surveillance video showed 

defendant shooting the victim after defendant was pushed by the victim. But only defendant 

provided testimony about his emotional state when he shot the victim. Specifically, defendant 

provided the following testimony during cross-examination:

Q. It’s your testimony [that the victim] was pursuing you outside the MTA?

A. He pursued me the whole time.

Q. Okay. Isn’t it true that as you became upset about him not letting you in 

the MTA that you lost your temper and you went after [the victim]?

A. No. I did not lose my temper because he wouldn’t let me in the MTA. I 

lost my—

Q. Isn’t it true because you lost your temper, you reached in and grabbed 

your handgun?

A. No. I didn’t lose my temper at all. I basically only grabbed my gun to 

defend. That’s the only reason. It was no losing temper.

In light of that testimony, there simply was not adequate evidence to support defendant’s 

contention that a rational view of the evidence would have supported a voluntary-manslaughter 

conviction. Indeed, in his brief on appeal, defendant has focused his entire argument on whether 

there was adequate provocation, and does not cite any facts related to whether defendant shot the 

victim in the heat of passion. This is likely the case because, as noted, none of the testimony 

admitted at trial would support a finding that defendant acted in the heat of passion. Instead, as is 

clear from his own testimony, defendant reacted in what he believed to be a logical and discerning 
-5-

fashion—his life was in danger and he wanted to protect himself. Such a calculated decision, even 

when in response to allegedly adequate provocation, does not transform defendant’s act of 

shooting the victim into voluntary manslaughter. To the contrary, there must be evidence that 

defendant acted in the heat of passion as a result of the provocation. As there was no evidence of 

the killing in this case being the result of defendant acting out of passion rather than reason, the 

trial court did not err, plainly or otherwise, when it did not give the voluntary-manslaughter 

instruction. See Carines, 460 Mich at 763; Mitchell, 301 Mich App at 286; McMullan, 284 Mich 

App at 156.

III. FAIR CROSS-SECTION OF THE COMMUNITY

Defendant argues that his Sixth Amendment right to trial by a jury chosen from a fair crosssection of the community was violated. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

“[T]o properly preserve a challenge to the jury array, a party must raise this issue before 

the jury is empaneled and sworn.” People v McKinney, 258 Mich App 157, 161; 670 NW2d 254 

(2003). This issue is preserved, as defendant objected to the venire as not having been drawn from 

a fair cross-section. See Id. “Questions concerning the systemic exclusion of minorities in jury 

venires are generally reviewed de novo.” Id.

B. LAW AND ANALYSIS

“A defendant has the right to be tried by an impartial jury drawn from a fair cross section 

of the community.” People v Jackson (On Reconsideration), 313 Mich App 409, 428; 884 NW2d 

297 (2015), citing US Const Am VI; Const 1963, art 1, § 20; People v Bryant, 491 Mich 575, 595; 

822 NW2d 124 (2012). In Bryant, 491 Mich at 596-597, our Supreme Court discussed the 

framework for considering a claimed violation of that right, as set forth in Duren v Missouri, 439 

US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979):

In Duren, the United States Supreme Court set forth a more substantive 

framework designed to evaluate fair-cross-section challenges. Specifically, to 

make a prima facie case of a violation of the Sixth Amendment’s fair-cross-section 

requirement, a defendant must show:

(1) that the group alleged to be excluded is a “distinctive” group in 

the community; (2) that the representation of this group in venires 

from which juries are selected is not fair and reasonable in relation 

to the number of such persons in the community; and (3) that this 

underrepresentation is due to systematic exclusion of the group in 

the jury-selection process. 

Our Supreme Court held that, in considering the second prong of the above analysis, “a court must 

examine the composition of jury pools and venires over time using the most reliable data available 

to determine whether representation is fair and reasonable.” Bryant, 491 Mich at 599-600.
-6-

Initially, it is worth noting that there is no dispute in this case that the first prong of the 

above-cited test has been met, because “African-Americans, the group alleged to be excluded, are 

a distinct group in the community for the purposes of determining whether there is a violation of 

the Sixth Amendment’s fair-cross-section requirement.” Id. at 598. Thus, defendant’s primary 

focus in this appeal is on the second prong of the analysis iterated in Bryant. Specifically, 

defendant believes he has been asked to prove a fact even though no evidence exists to either prove 

or disprove his contention. The crux of defendant’s argument relies on the testimony of Greig, 

who stated that Genesee County did not keep a record of historical information regarding the racial 

composition of criminal jury venires. Defendant argues that, without that data, it is impossible to 

prove that people who are African-American are unreasonably underrepresented in Genesee 

County jury venires. Defendant is incorrect. 

Defendant’s argument that no evidence exists to support his juror pool argument ignores 

important parts of our Supreme Court’s opinion in Bryant, 491 Mich at 599-600. As discussed,

in Bryant, the Court held that while a defendant is required to prove a historical pattern of 

unreasonable underrepresentation in jury venires, the defendant is permitted to rely on “the most 

reliable data available.” Id. It stands to reason, certainly, that if Genesee County tracked the racial 

compilation of its own jury venires, such would be the most reliable source of data on the topic. 

But just because Genesee County does not track and keep that information does not preclude 

defendant from raising an argument under the Sixth Amendment and the test discussed in Bryant. 

Instead, defendant is simply required to find “the most reliable data available.” Id. 

Defendant need look no further than the very case he cites, Bryant, 491 Mich at 602, to 

find an instance in which a defendant made a fair-cross-section claim without county records 

directly on point. The Bryant Court stated that, “[i]n this case, hard data regarding the race of 

those sent questionnaires or appearing for jury service are not available for two primary reasons.” 

Id. The two reasons were that (1) information about the race of potential jurors was not included 

in the information sent to the county by the state, and (2) potential jurors were asked to disclose 

their race in voluntary surveys, but these surveys “were plagued by wildly inconsistent 

participation and therefore do not provide a meaningful data set.” Id. The defendant in Bryant, 

however, discovered that the “court did keep records of the zip code of each person sent a jury 

summons.” Id. With that information, the defendant introduced the testimony of an expert in 

statistics who “was able to estimate, using the racial makeup of each zip code from the census data, 

the number of African-Americans who had been summoned for jury service from January through 

March 2002.” Id. at 602-603. 

Based on the reasoning of our Supreme Court in Bryant, 491 Mich at 602-603, defendant’s 

argument that he was unable to adduce evidence as to the makeup of the jury pool in Genesee 

County is without merit; Bryant specifically permits a Sixth Amendment fair-cross-section claim 

to be made on the basis of data or statistics that are not necessarily kept by the governmental entity 

in question. Defendant has not provided any historical information regarding the race of potential 

jurors in Genesee Circuit Courts or provided an explanation for why he could not obtain any such 

information from non-government sources. Instead, based on the record before us it appears that 

defendant looked only to Genesee County for the records and that he did not make extra efforts, 

like the defendant in Bryant did, to find other sources of evidence to support his jury pool 

argument.
-7-

Although government data did not exist, defendant still had the burden to provide “the most 

reliable data available.” Id. at 602. Bryant was clear that the second prong of a fair-cross-section 

analysis “requires defendant to show that ‘representation of this group in venires from which juries 

are selected is not fair and reasonable in relation to the number of such persons in the 

community[.]’ ” Id. at 598, quoting Duren, 439 US at 364 (alteration in original; emphasis added). 

Because the law puts the burden of production on defendant, and because defendant did not provide 

any evidence to carry that burden, defendant’s argument regarding a fair-cross-section claim is 

without merit. Bryant, 491 Mich at 598. Moreover, because defendant had other evidence he 

could have pursued, the record simply does not support defendant’s argument that such a burden 

was impossible to meet, which would be a violation of his due-process rights.

3 Defendant, as the 

appellant, was required to provide a factual record to support his claim for reversal. People v 

Elston, 462 Mich 751, 762; 614 NW2d 595 (2000) (“As the appellant . . . , defendant bore the 

burden of furnishing the reviewing court with a record to verify the factual basis of any argument 

upon which reversal was predicated.”). His failure to prove that there was no evidence available, 

as opposed to simply the evidence he would prefer to be available, is fatal to this argument on 

appeal. See id. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant, in his Standard 4 brief, argues that his trial counsel was ineffective for failing 

to interview a potential exculpatory witness. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To properly preserve a claim of ineffective assistance of counsel, a defendant must move 

for either a new trial or a Ginther4hearing in the trial court; failure to make any such motion 

“ordinarily precludes review of the issue unless the appellate record contains sufficient detail to 

support the defendant’s claim.” People v Sabin (On Second Remand), 242 Mich App 656, 658-

 

3 Defendant refers to a due-process right of fundamental fairness, but he failed to cite a single case 

regarding such a right or to provide any analysis regarding the issue. Instead, defendant’s brief 

argues only a fair-cross-section claim under the Sixth Amendment and Bryant. Thus, to the extent 

he has attempted to make a due-process argument, it has been abandoned by his failure to brief it. 

See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for his 

claims, nor may he give only cursory treatment with little or no citation of supporting authority.”). 

Even so, as discussed in the analysis for this issue, defendant’s due-process argument is clearly 

founded upon a misunderstanding of the law. It was not fundamentally unfair to defendant that 

Genesee County did not keep historical records of the racial composition of jury venires because 

defendant was permitted to support his fair-cross-section claim by using other evidence. See 

Bryant, 491 Mich at 602-603.

4 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-8-

659; 620 NW2d 19 (2000). It is undisputed that defendant never moved the trial court for a new 

trial or for a Ginther hearing.5 Thus, the issue is unpreserved. 

Regardless of whether a claim of ineffective assistance is properly preserved, if the trial 

court did not hold a Ginther hearing, “our review is limited to the facts on the record.” People v 

Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “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).

B. LAW AND ANALYSIS

A “defendant has the burden of establishing the factual predicate for his claim of ineffective 

assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

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

burden of proving otherwise. To establish an ineffective assistance of counsel 

claim, a defendant must show that (1) counsel’s performance was below an 

objective standard of reasonableness under prevailing professional norms and (2) 

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

proceedings would have been different. [People v Lockett, 295 Mich App 165, 187; 

814 NW2d 295 (2012) (citations omitted).]

The “reasonable probability” standard can be satisfied by less than a preponderance of the 

evidence. People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012).

The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,” 

but should “ensure that counsel’s actions provided the defendant with the modicum of 

representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686 

(2004), citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). 

“Defense counsel is given wide discretion in matters of trial strategy because many calculated risks 

may be necessary in order to win difficult cases.” People v Unger, 278 Mich App 210, 242; 749 

NW2d 272 (2008). Defense counsel may decide, for example, “not to object to an obvious error” 

for “strategic reasons.” Randolph, 502 Mich at 12. Thus, there is a “strong presumption that trial 

counsel’s performance was strategic,” and “[w]e will not substitute our judgment for that of 

counsel on matters of trial strategy.” Unger, 278 Mich App at 242-243.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too 

tempting for a defendant to second-guess counsel’s assistance after conviction or 

adverse sentence, and it is all too easy for a court, examining counsel’s defense 

after it has proved unsuccessful, to conclude that a particular act or omission of 

counsel was unreasonable. A fair assessment of attorney performance requires that 

every effort be made to eliminate the distorting effects of hindsight, to reconstruct 

 

5

Indeed, no Ginther hearing was held in this case.
-9-

the circumstances of counsel’s challenged conduct, and to evaluate the conduct 

from counsel’s perspective at the time. [Strickland, 466 US at 689 (citation 

omitted).]

“Yet a court cannot insulate the review of counsel’s performance by calling it trial 

strategy.” Trakhtenberg, 493 Mich at 52. “The inquiry into whether counsel’s performance was 

reasonable is an objective one and requires the reviewing court to determine whether, in light of 

all the circumstances, the identified acts or omissions were outside the wide range of professionally 

competent assistance.” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation 

marks and citation omitted). Accordingly, the reviewing court must consider the range of potential 

reasons that counsel might have had for acting as he or she did. Id.

Furthermore, with regard to prejudice, as noted, to obtain a new trial on ineffective 

assistance grounds, a defendant must show that “there is a reasonable probability that, but for 

counsel’s errors, a different outcome would have resulted.” People v Jackson, 292 Mich App 583, 

600-601; 808 NW2d 541 (2011). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” People v Chenault, 495 Mich 142, 150-151; 845 NW2d 731 (2014). 

(quotation marks and citation omitted). To meet this standard, a defendant does not have to show 

that the evidence would have ensured acquittal, id., nor is a defendant even required to show that 

counsel’s failure more likely than not altered the outcome, Harrington v Richter, 562 US 86, 112; 

131 S Ct 770; 178 L Ed 2d 624 (2011). Nevertheless, “[t]he likelihood of a different result must 

be substantial, not just conceivable.” Id. “[W]here there is relatively little evidence to support a 

guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the magnitude 

of errors necessary for a finding of prejudice will be less than where there is greater evidence of 

guilt.” Trakhtenberg, 493 Mich at 56.

As noted, defendant argues that defense counsel should have called a witness who may 

have seen the shooting occur. “[D]ecisions regarding what evidence to present and whether to call 

or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute 

its judgment for that of counsel regarding matters of trial strategy.” People v Muhammad, 326 

Mich App 40, 66; 931 NW2d 20 (2018) (quotation marks and citation omitted).

The basis of defendant’s argument relies partially on defense counsel’s cross-examination 

of Flint Police Sergeant William Jennings, the officer-in-charge of the case. In pertinent part, 

Sergeant Jennings testified that, when police officers were at the scene of the crime, they were 

approached by a woman who said she witnessed the shooting. Sergeant Jennings testified that the 

woman provided contact information and said she would be willing to speak with the police. 

However, considering the number of eyewitnesses and that the shooting was recorded on video, 

Sergeant Jennings determined it was unnecessary to speak with the woman. Defense counsel 

pressed the issue with Sergeant Jennings, suggesting that the police investigation was tainted by 

Sergeant Jennings’s failure to seek out any and all witnesses of the crime.

On appeal, defendant contends that defense counsel should have done more than just 

question the integrity of the police investigation, and instead, should have found the witness and 

called her to testify. In order to establish that his trial counsel was ineffective, defendant must 

establish that his trial counsel’s “performance was below an objective standard of reasonableness 

under prevailing professional norms.” Lockett, 295 Mich App at 187. As a rule, defendant is 
-10-

required to provide the factual predicate for a claim of ineffective assistance of counsel. See Hoag, 

460 Mich at 6. Defendant has failed to meet that standard in this case. Defendant has not provided 

any evidence even suggesting what the testimony of the witness in question would have been. 

Indeed, other than his own conjecture on the subject, the record lacks any evidence that the 

witness’s testimony would have been any different than that of any of the other witnesses who 

actually did testify at trial. In short, there was no evidence that the witness’s testimony would have 

been beneficial to defendant’s case. Because it is unpreserved, our review of the issue is limited 

to mistakes apparent on the record, and, there being no such apparent mistakes, defendant’s 

argument lacks merit. See Wilson, 242 Mich App at 352. Moreover, we must proceed on the 

presumption that defense counsel’s decision not to call the witness was sound trial strategy, and 

defendant has not provided any evidence to overcome it. See Unger, 278 Mich App at 242-243. 

Instead, the record shows that defense counsel’s apparent belief that it was more beneficial to 

undermine the police investigation of the crime in an attempt to create reasonable doubt, rather 

than to call a witness who might have provided additional damaging testimony, such as that the 

victim did not have a gun, was sound trial strategy. See id. 

On an alternative basis, defendant appears to argue that this Court should find defense 

counsel ineffective for failing to move for a Ginther hearing on this issue. Defendant suggests 

that, during such a hearing, he could have produced evidence of the witness’s possible testimony. 

A Ginther hearing is a method by which “[a] defendant who wishes to advance claims that depend 

on matters not of record can properly . . . seek at the trial court level an evidentiary hearing for the 

purpose of establishing his claims.” People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 

A trial court’s decision whether to grant an evidentiary hearing, such as a Ginther hearing, is 

reviewed for an abuse of discretion. Unger, 278 Mich App at 216-217. “An abuse of discretion 

occurs when the court chooses an outcome that falls outside the range of reasonable and principled 

outcomes.” Id. at 217. A Ginther hearing is not warranted if the “defendant has not set forth any 

additional facts that would require development of a record to determine if defense counsel was 

ineffective.” See People v Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007).

Once again, defendant was required to present some evidence of “any additional facts” that 

would show a Ginther hearing was warranted. See id. At a minimum, defendant was required to 

make an offer of proof as to what the evidence would have shown. See MRE 103(a)(2). As with 

his previous argument, defendant has failed to carry his burden. Instead, defendant relies on his 

own conjecture that the testimony of the witness would have been beneficial to his case. 

Considering the utter lack of evidence on the topic, or any basis for concluding what the witness’s 

testimony might have been, the trial court would have been obligated to deny a request by defense 

counsel for a Ginther hearing to produce the witness. In other words, absent an affidavit from the 

witness or some statement made by her, the trial court had no evidence that would warrant an 

evidentiary hearing on the issue. Id. Because the motion for a Ginther hearing on that ground 

properly would have been denied, and because “[i]neffective assistance of counsel cannot be 
-11-

predicated on the failure to make a frivolous or meritless motion,” this alternative argument by 

defendant also lacks merit. People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).6

V. SUFFICIENCY OF THE EVIDENCE

Defendant, in his Standard 4 brief, argues that there was insufficient evidence to sustain 

his conviction of second-degree murder. We disagree.

A. STANDARD OF REVIEW

A valid criminal conviction requires proof beyond a reasonable doubt of every element of 

every crime. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). A challenge to the 

sufficiency of the evidence to support a criminal conviction presents a question of law subject to 

review de novo. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). When 

reviewing the sufficiency of the evidence in a criminal case, a reviewing court must view the 

evidence of record in the light most favorable to the prosecution to determine whether a rational 

trier of fact could find that each element of the crime was proved beyond a reasonable doubt. Id. 

A reviewing court “must consider not whether there was any evidence to support the conviction 

but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond 

a reasonable doubt.” People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748, amended 441 Mich 

1201 (1992) (citation and quotation marks omitted). Our “standard of review is deferential: a 

reviewing court is required to draw all reasonable inferences and make credibility choices in 

support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (citation 

omitted). “Conflicting evidence and disputed facts are to be resolved by the trier of fact. Minimal 

circumstantial evidence and reasonable inferences can sufficiently prove the defendant’s state of 

mind, knowledge, or intent.” People v Miller, 326 Mich App 719, 735; 929 NW2d 821 (2019) 

(citations omitted). Similarly, “[c]ircumstantial evidence and reasonable inferences that arise from 

such evidence can constitute satisfactory proof of the elements of the crime.” People v Kanaan, 

278 Mich App 594, 619; 751 NW2d 57 (2008). Finally, “[d]ue process requires the prosecution 

in a criminal case to introduce sufficient evidence to justify a trier of fact in its conclusion that the 

defendant is guilty beyond a reasonable doubt.” People v Breck, 230 Mich App 450, 456; 584 

NW2d 602 (1998). As such, a conviction based on insufficient evidence violates due process. See 

id.

 

6 The prosecution interpreted defendant’s admittedly confusing alternative argument in his 

Standard 4 brief as a claim of ineffective assistance of appellate counsel. While we have read the 

argument differently, the outcome of the analysis would be the same—absent any evidence of the 

witness’s potential testimony, a motion to remand the case for a Ginther hearing lacked merit. See 

Williams, 275 Mich App at 200. Thus, appellate counsel was not ineffective for failing to move 

for a remand for a Ginther hearing because any such request could not have succeeded, for the 

reasons discussed earlier. See Riley, 468 Mich at 142; People v Uphaus, 278 Mich App 174, 186; 

748 NW2d 899 (2008) (“[T]he test for ineffective assistance of appellate counsel is the same as 

that applicable to a claim of ineffective assistance of trial counsel.”). 
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B. LAW AND ANALYSIS

First, we must address that defendant’s argument appears to rely on a misstatement of the 

record. In pertinent part, defendant claims that Julissa Townsend, who was at the MTA bus station 

on the night of the shooting, took the victim’s cell phone from the scene of the crime, which 

defendant suggests amounted to a criminal offense. Defendant states that Townsend should have 

been convicted of tampering with evidence. Defendant is correct that Townsend testified that she 

took the victim’s cell phone from near his body after he was shot. She then used that cell phone 

to call 911. But, later during her testimony, Townsend clarified that she gave the cell phone to the 

victim’s sister, who then gave the cell phone to police. Thus, to the extent that defendant’s 

argument relies on an allegation that the victim’s cell phone was never provided to the police, it is 

not supported by the record, and thus, is without merit. 

Additionally, defendant has not suggested how removal of the cell phone from the scene 

of the shooting affected the sufficiency of the evidence that he committed second-degree murder. 

Nevertheless, a review of the elements of a claim of second-degree murder, the evidence in the 

case, and defendant’s claim of self-defense demonstrates that there was sufficient evidence to 

sustain defendant’s conviction. In a recent decision, People v Baskerville, ___ Mich App ___, 

___; ___ NW2d ___ (2020) (Docket No. 345403); slip op at 3-4, this Court stated the elements of

second-degree murder:

The elements of second-degree murder are (1) a death, (2) the death was 

caused by an act of the defendant, (3) the defendant acted with malice, and (4) the 

defendant did not have lawful justification or excuse for causing the death. Malice 

is defined as the intent to kill, the intent to cause great bodily harm, or the intent to 

do an act in wanton and willful disregard of the likelihood that the natural tendency 

of such behavior is to cause death or great bodily harm. Second-degree murder 

evolved from common-law murder, under which malice aforethought was 

understood for centuries to be the grand criterion distinguishing murder from less 

wicked homicides. [Citations and quotation marks omitted.]

Although defendant has not identified the specific element or elements at issue on appeal, because 

he testified that he shot and killed the victim, it is clear that there was sufficient evidence that “a 

death” occurred, and that “the death was caused by an act of . . . defendant.” Id. at ___; slip op at 

3 (citation and quotation marks omitted).

As to the remaining two elements, there was sufficient evidence to support a conclusion 

that “ ‘defendant acted with malice, and . . . defendant did not have lawful justification or excuse 

for causing the death.’ ” Id. Recall that “malice” is fulfilled by “the intent to kill, the intent to 

cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood 

that the natural tendency of such behavior is to cause death or great bodily harm.” Id. (quotation 

marks and citation omitted); see generally Section II(B) of this opinion. Defendant admitted that 

he used a handgun to shoot the victim three times. Indeed, defendant shot the gun five times in 

the victim’s direction. The bullets were aimed at the victim’s chest and two of the bullets actually 

pierced the victim’s chest cavity and his lungs. From that evidence, the jury had more than 

sufficient grounds to infer that defendant intended to kill the victim, or at the very least, to cause 

the victim great bodily harm. Id. at ___; slip op at 3-4.
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In light of that evidence, it is apparent that defendant’s argument related to sufficiency of 

the evidence is focused on the fourth and final element of second-degree murder—whether 

defendant had a lawful justification for the shooting. Id. Defendant’s argument during the trial 

was that he acted in self-defense. “With the enactment of the Self-Defense Act (SDA), MCL 

780.971 et seq., the Legislature codified the circumstances in which a person may use deadly force 

in self-defense . . . without having the duty to retreat.” People v Dupree, 486 Mich 693, 708; 788 

NW2d 399 (2010). In relevant part, MCL 780.972(1)(a) states that 

[a]n individual who has not or is not engaged in the commission of a crime at the 

time he or she uses deadly force may use deadly force against another individual 

anywhere he or she has the legal right to be with no duty to retreat if . . . [t]he 

individual honestly and reasonably believes that the use of deadly force is necessary 

to prevent the imminent death of or imminent great bodily harm to himself . . . .

“Once a defendant raises the issue of self-defense and satisfies the initial burden of producing 

some evidence from which a jury could conclude that the elements necessary to establish a prima 

facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense 

beyond a reasonable doubt.” People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014) 

(quotation marks and citation omitted).

Defendant testified that after the victim pushed him near the MTA station exit, the victim 

lifted up his shirt and reached for a gun that was in the waistband of his pants. Upon seeing that 

action, defendant believed his life was in danger, pulled out his own gun, and shot the victim. 

While that testimony from defendant supported his allegation of self-defense, as did testimony 

regarding the victim yelling at defendant and pushing him, there also was significant evidence that 

defendant did not “honestly and reasonably believe[] that the use of deadly force [was] necessary 

to prevent [his] imminent death.” MCL 780.972(1)(a). Specifically, no one else at the bus stop 

saw the victim with a gun. The victim’s mother testified that the victim never carried a gun and 

that he did not have one the day he was killed. Other witnesses who knew the victim agreed that 

the victim did not have a gun on the day of the shooting. Moreover, Vernon Beasley, who did not 

know the victim personally and who closely examined the victim’s body while rendering first aid 

to him soon after he was shot, testified that the victim did not have a gun on his person or around 

his body. Beasley stated that he ripped off the victim’s shirt, so the victim’s waistband would have 

been visible and he would have seen any gun in the victim’s waistband. Lastly, several witnesses 

who knew the victim personally testified that his posture in the surveillance video was not 

indicative of aggressiveness.

Giving defendant’s confusing brief the benefit of the doubt, he appears to be attempting to 

bring all of this testimony into doubt by suggesting that someone around the victim’s body likely 

removed the victim’s gun from the scene. His reasoning is that, if someone could remove a cell 

phone from the vicinity of the victim, then someone also could have removed a gun. While that 

is undoubtedly possible, the jury considered that possibility and disbelieved it. Instead, the jury 

credited the many witnesses who described the victim as not having a gun on the day in question, 

and thus, found that defendant was not reasonably in fear of his life when he killed the victim. 

That was the province of the jury, and we will not interfere with that conclusion. See Oros, 502 

Mich at 239. At best, defendant has presented us with a factual dispute about whether the victim 

had a gun, reached for it, and defendant shot him because defendant feared for his life. On appeal, 
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we must construe the evidence in the light most favorable to the prosecution, which supports the 

verdict. See Herndon, 246 Mich App at 415. In sum, because there was sufficient evidence for a 

rational juror to believe beyond a reasonable doubt that defendant did not act in self-defense when 

he shot and killed the victim, there was sufficient evidence to support defendant’s conviction of 

second-degree murder. See Stevens, 306 Mich App at 630.

VI. CONCLUSION

We find no prejudicial error regarding defendant’s convictions. For the reasons stated, 

therefore, defendant’s convictions are affirmed.

/s/ Mark T. Boonstra 

/s/ Michael F. Gadola 

/s/ Jonathan Tukel