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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 10, 2016

v No. 324615 Wayne Circuit Court ANDRE LARMAR HUNTER, LC No. 09-022865-FC

Defendant-Appellant.

Before: S AAD , P.J., and S AWYER and H OEKSTRA , JJ.

P ER C URIAM

.

Following a jury trial, defendant appeals as of right his conv ictions for first-degree premeditated murder, MCL 750.316(1)(a), and possession of a fir earm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sente nced defendant to life imprisonment without the possibil ity of parole for the first-de gree murder conviction and to two years’ imprisonment for the felony-firearm conviction. Because any error in the trial court’s jury instructions was harmless, the evidence was sufficient to suppo rt defendant’s convictions, and
defendant was not denied the eff ective assistance of counsel, w e affirm.

In the early morning hours of January 25, 2009, David Hall, wa s shot to death outside the Tippin Inn Lounge in Detroit. With Hall at the time of the sho oting was his girlfriend, Patrice Walker. At trial, Walker identified defendant as the shooter. In addition, the prosecution presented the jury with video sur veillance footage and still ph otographs of the suspected shooter, which had been compiled by a police officer specializing in vid eo forensics. These images showed a man in a yellow hoodie and black jacket following Hall and Walker out of the bar, toward Walker’s car. Additional witnesses, including defendant ’s stepbrother, identified defendant as the suspect in the photographs. Defendant testifi ed in his own defense. Defendant admitted that he was at the Tippin Inn Lounge on the night of t he shooting, but he denied any involvement with the crime. A j ury convicted defendant of firs t-degree premeditated murder and-2- felony-firearm. 1 The trial court sentenced defendant as noted above. Defendan t now appeals as of right.

On appeal, defendant first argues that the trial court abused its discretion when it omitted paragraph (4) of M Crim JI 7.8 from the final jury instructions at trial. Defendant asserts that this instruction applied because Walker provided police with de scriptions of the shooter which were inconsistent with defendant’s appearance. She also told a witness at the scene that she did not see the shooter, and, when ask ed by police, Walker could no t describe the suspect’s complexion. Given that Walker’s identification testimony forme d a central component of the prosecution’s case, defendant maintains that the failure to rea d paragraph (4) requires reversal of
his convictions.

Defendant objected to the omission of this instruction, thereb y preserving his claim for appellate review. People v Sabin (On Second Remand) , 242 Mich App 656, 657; 620 NW2d 19 (2000). We review de novo underl ying legal questions pertainin g to jury instruction issues, and
for an abuse of discretion the tr ial court’s determination rega rding the applicability of a jury
instruction to the facts of the case. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006).

“A criminal defendant is entitled to have a properly instructe d jury consider the evidence against him.” People v Dupree , 486 Mich 693, 712; 788 NW2d 399 (2010) ( citation omitted). A trial court is required to instruct the jury on the law applica ble to the case and to present the case to the jury in a clear and understandable manner. People v Henry , 239 Mich App 140, 151; 607 NW2d 767 (1999). Jury instructions must include all elements o f the charged crime as well as all material issues, defenses, and theories if the evidence sup ports them. People v Wess , 235 Mich App 241, 243; 597 NW2d 215 (1999).

This Court reviews jury instruc tions as a whole to determine w hether error requiring
reversal occurred. People v Bartlett , 231 Mich App 139, 143; 585 NW2d 341 (1998). Even when somewhat imperfect, an instruction is not grounds for sett ing aside a conviction if “the instruction fairly presented the issues to be tried and adequat ely protected the defendant's rights.” People v Kowalski , 489 Mich 488, 501-502; 803 NW2d 200 (2011). Moreover, “if an applicable instruction was not given, the de fendant bears the burden of es tablishing that the trial court's failure to give the requested ins truction resulte d in a miscarr iage of justice.” People v McKinney

, 258 Mich App 157, 163; 670 NW2d 254 (2003) (citation omitted). To make this determination, we examine the nature of the instructional error in light of th e weight and strength of the untainted evidence, and reversal i s only warranted if “it affir matively appears more probable than
not that the error was outcome determinative.” Dupree , 486 Mich at 712. See also MCL 769.26.

1 The jury trial in this case was defendant’s third trial. His first trial resulted in a mistrial. Following defendant’s second trial , a jury convicted defendant of first-degree murder and felonyfirearm, but his convictions were reversed on appeal due to a f inding of ineffective assistance of
counsel. People v Hunter , 493 Mich 1015; 829 NW2d 871 (2013); People v Hunter

, unpublished opinion of the Court of Appeals, issued September 1 2, 2013 (Docket No. 297542).-3- In this case, the trial judge’s final jury instructions on ide ntification included paragraphs (1), (2), (3), and (5) of M Crim JI 7.8. However, despite a re quest from defense counsel, the trial court failed to read paragr aph (4), which provides:

[(4) You may also consider any times that the witness failed to identify the defendant, or made an identifica tion or gave a description that did not agree with (his / her) identific ation of the defenda nt during trial.] [M Crim JI 7.08.]

The trial judge denied defense counsel’s request, explaining th at he would have given that
instruction if there had been a ny evidence of “misidentificatio n” presented during defendant’s
trial.

The trial court was correct in its recognition that there was no evidence that a witness
misidentified another individua l as the shooter or that a witne ss failed to identify defendant when, for example, presented with a photo array or line-up. No netheless, we are persuaded that paragraph (4), or at least a portion of this paragraph, was war ranted in this case because there was evidence that Walker “gave a description that did not agree with [her] identification of the defendant during trial.” For example, when speaking with polic e, Walker described a shorter
individual than defendant. Walke r also testified at trial that the shooter had been wearing a yellow hoodie and black jacket lik e the individual shown in the surveillance footage, while in contrast she initially described the shooter as wearing a black hoodie and a black jacket. Given these descriptions in conflict with Walker’s identification of defendant during trial, the evidence supported the reading of M Crim JI 7.8(4). 2 And, because defense counsel requested the instruction, the trial judge abused its discretion when it deni ed that request. See McKinney , 258 Mich App at 163.

Nonetheless, defendant is not entitled to relief on appeal bec ause he has not shown that it affirmatively appears more probable than not that the error was outcome determinative. Dupree

, 486 Mich at 712. When the instructions are considered as a who le, although the trial court did not include paragraph (4) in particular, the trial court instru cted the jury on witness credibility at length and included specific ins tructions on iden tification, in cluding the requirement that the prosecutor prove identification beyond a reasona ble doubt as we ll as various factors for assessing

2 Defendant also argues that this instruction should have been r ead because, before trial, Walker failed to describe the shooter on two occasions. Specifically, at trial, Walker described the shooter as having the same complexion as defendant, but when po lice asked her to describe the shooter’s complexion, she could not. In addition, the manager of the Tippin Inn Lounge testified that, immediately after the shoot ing, Walker told him that she had not seen the shooter. While these inconsistencies were certainly relevant to the question o f Walker’s credibility, we do not think they necessarily support the reading of paragraph (4). T hat is, Walker’s failure to provide a description does not evince the giving of a description that do es not match defendant, a failure to identify defendant, or an identi fication of someone other than defendant. In any event, even supposing this evidence supported the reading of paragraph (4), as discussed infra , any error in the omission of this instruction did not result in a miscarriag e of justice. See McKinney , 258 Mich App at 163.-4- the dependability of the witnes ses’ identification testimony. The jurors were instructed to carefully consider the strengths and weaknesses of the identifi cation testimony. And, with regard to credibility, the jury was told it could consider an e arlier statement by the witness “in deciding whether the witness tes tified truthfully in court.” M oreover, the jury was made fully aware of all of the inconsistencies in Walker’s descriptions of the shooter, and defense counsel had the opportunity to cross-examine her regarding these incons istencies and to challenge her credibility in closing argument s. In addition, Walker’s testim ony was not the only identification testimony presented to the jury. The jury also had the opportu nity to consider in-court identifications of defendant as the suspected shooter in the st ill photographs extracted from the surveillance video footage. Indeed, the jury had the opportuni ty to view video footage and to examine the still photographs t o make their own assessment of t he suspect’s identity. And, while defendant denied responsibility for the shooting, his own testi mony placed him in the bar on the night in question. On this record, defendant has not shown tha t it affirmatively appears more probable than not that the failure to read paragraph (4) was ou tcome determinative. See Dupree

, 486 Mich at 712. Thus, reversa l is not required.

Next, defendant argues that the evidence presented was insuffi cient to support his convictions. In particular, de fendant contends that the prosec utor presented insufficient evidence
to establish defendant’s ident ity beyond a reasonable doubt. H e maintains that Walker’s testimony was the only evidence to establish his identity as th e shooter and that her testimony was too unreliable to sup port his convictions.

We review challenges to the sufficiency of evidence de novo. People v Harverson , 291 Mich App 171, 177; 804 NW2d 757 (2010). This Court reviews the evidence in a light most favorable to the prosecution to d etermine whether a rational tr ier of fact could have found each element of the charged crimes proved beyond a reasonable doubt. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012). “Circumstantial evidence and rea sonable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of the crime.” People v
Williams , 268 Mich App 416, 419; 707 NW2d 624 (2005). This Court resol ves conflicts in the evidence in favor of the prosecution, and “we will not interfer e with the trier of fact’s determinations regarding the weight of evidence and the credibi lity of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 272 (2008).

To sustain a conviction of first-degree premeditated murder, t he prosecution must prove that defendant (1) intentiona lly killed a person, with (2) prem editation and deliberation. People v

Bennett , 290 Mich App 465, 472; 802 NW2d 627 (2010). For a conviction of felony-firearm, the prosecution must show that defendant possessed a firearm during the commission, or the attempt to commit, a felony. People v Akins , 259 Mich App 545, 554; 675 NW2d 863 (2003). In addition, identity is an essential element of every offense. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). Positive i dentification by witnesses may be sufficient to support a conviction, and the credibility o f identification testimony is a question for the tr ier of fact that we
will not resolve anew. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000).

In this case, Walker witnesse d the shooting, and she identifie d defendant as the shooter at trial. In addition, although the bar’s manager claimed that Wa lker told him she did not see the shooter, Walker provided police with a description of the shoot er at the scene. While there were some inconsistencies in Walker’s description when compared with her trial testimony, she-5- explained to the jury that she calmed down the day after the sh ooting and provided a more accurate description, including a description of a yellow hoodi e. The jury also heard that Walker
identified defendant as the s hooter during a photographic line- up. Although defendant attempts to rehash the reliability of Wal ker’s identification on appeal, the credibility of Walker’s identification testimony was a question for the jury. See id. Moreover, contrary to defendant’s claim that Walker’s testimony was the only evidence of his guilt, the jury was provided with still photographs taken from surveillance cameras depicting the suspe cted shooter and given the opportunity to make their own com parisons. Further, defendant’ s own testimony placed him in the bar on the night in question. And, Walker’s identification testimony was also supported by the testimony of two other witnesses who were acquainted with d efendant. These witnesses viewed the still photographs and i dentified the suspected shoot er as defendant. Although
defendant denied involvement in the shooting and presented witn esses to testify that the photographs did not depict defendant, the resolution of this co nflicting evidence was a question for the jury. See Unger , 278 Mich App at 222. Viewed in a light most favorable to the prosecution, the evidence was suff icient to establish defendant ’s identity and to support his convictions for first-degree pr emediated murder and felony-fire arm.

Finally, in his Standard 4 brief, defendant argues that defens e counsel’s failure to consult and/or call (1) a forensic video expert and (2) an identificati on expert constituted ineffective assistance of counsel and deprive d him of a fair trial. Defend ant speculates that such testimony
would have been beneficial to his case and, at a minimum, he co ntends that consulting with such experts would have enabled defense counsel to conduct a more th orough cross-examination of the police officer who compiled t he video footage and still pho tographs in this case.

Defendant failed to preserve this issue by bringing a timely m otion for a new trial or moving for a Ginther 3 hearing in the lower court. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). This Court’s review of unpreserved ineffectiv e assistance of counsel claims is limited to mistakes apparent on the record. Id. To establish ineffective assistance, the defendant must show “(1) that counsel's representation fell bel ow an objective standard of reasonableness, and (2) that the re is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks and cit ation omitted). There is a strong presumption th at an attorney’s assistance was effective, and the defendant bears the heavy burden of proving otherwise. People v Seals , 285 Mich App 1, 17; 776 NW2d 314 (2009). “An attorney's decision whether to retain witnesses, i ncluding expert witnesses, is a matter of trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). “This Court will not substitute its judgment for that of counsel rega rding matters of trial strategy, nor will it assess counsel's competence with the benefit of hindsig ht.” Petri , 279 Mich App at 411 (citation omitted). Moreover, a defendant bears the burden of establishing the factual predicate
of an ineffective assistance claim. Douglas, 496 Mich at 592.

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-6- Defendant argues that he was deprived of the effective assista nce of counsel because defense counsel failed to consult and/or call (1) a forensic vi deo expert to rebut the testimony of the prosecutor’s video forensic expert, and (2) an identificati on expert regarding identification testimony. However, defendant has failed to establish the fact ual predicate of his claim. First, the record is devoid of any indi cation regarding whether counse l consulted with an identification expert or forensic video expert in preparation for trial. Seco nd, defendant offers no proof that experts would have testified fa vorably to defendant if called. Cf. People v Ackerman , 257 Mich App 434, 455; 669 NW2d 818 (2003). Absent such proof, defendan t has not shown that counsel’s performance fell below an objective level of reasonab leness or that retention of experts
could have altered the outcome of the trial. See id. ; Payne , 285 Mich App at 190. Thus,
defendant has not shown he was deni ed the effective assistance of counsel.

Affirmed.

/s/ Henry William Saad /s/ David H. Sawyer
/s/ Joel P. Hoekstra