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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 21, 2016

v No. 326141 Wayne Circuit Court DARIUS LEWIS, LC No. 14-008986-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

.
Defendant appeals as of right his jury conviction of first-deg ree felony murder, MCL 750.316(1)(b), for which he was s entenced to life in prison. W e affirm.

I. LOWER COURT PROCEEDINGS

This case arises from the August 19, 2014 shooting death of Sa -Jad Al-Jabur. Originally, defendant and Doyle Mims were charged with first-degree felony murder, armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Following the preliminary examination, defendant was bound over for trial on an amended charge of open murder , MCL 750.318, and fe lony-firearm. The district court dismissed the robbery charge. Mims was apparently bound over as charged. In December 2014, Mims pleaded guilty to second-degree murder in exchange for dismissa l of the other charges. Defendant was tried alone before a jury.

The evidence showed that Mims had sold cell phones to the vict im in the past. On the day of the offense, the victim arrived at the house where Mims was then living. Mims and defendant were sitting outside on the porch, apparently awaitin g his arrival. Mims had a sealed
box with a Verizon label on it. The box contained miscellaneou s household items, but not cell phones. Mims’s grandfather, Roger Collins, Jr., testified that defendant had a bulge in the front of his pants, which led Collins to believe he might be carrying a gun. When the victim arrived,
defendant and Mims both went to meet him. Mims took the box an d entered the front seat of the
victim’s car while defendant satin the back. Suddenly, defend ant pulled out a gun and shot the
victim in the back of the head. Defendant and Mims fled the sc ene. Mims was later found in possession of a large amount of cash; the bills were blood-stai ned. It was defendant’s theory at trial that Mims shot the victim and defendant was “merely prese nt.” The jury was instructed on premeditated murder, felony murder (predicated on robbery or la rceny), and second-degree-2- murder on the open murder charge and on felony-firearm. It was also instructed on aiding and abetting. The jury found defendant g uilty of felony murder and not guilty of felony-firearm.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that trial counsel was ineffective for failing to call Mims as a witness and for failing to introduce a written statement from M ims exculpating defendant.
Defendant also contends that he is entitled to a new trial beca use he is actually innocent. The issues have not been preserved for appeal because defendant did not raise them in a motion for a new trial or request for an evidentiary hearing in the trial co urt. See People v Lane , 308 Mich App 38, 68; 862 NW2d 446 (2014); People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003).

Whether a defendant has been denied the effective assistance o f counsel is a mixed question of law and fact. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). Because the trial court did not conduct an evidentiary hearing and made no findings of fact, review of this issue is limited to mistakes apparent from the r ecord. See Lane , 308 Mich App at 68. An unpreserved claim that a defendant is entitled to a new trial is reviewed for plain error affecting the defendant’s substantial rights. Musser , 259 Mich App at 218.

The general rule is that eff ective assistance of counsel is pr esumed and “the defendant bears a heavy burden of proving otherwise.” People v Eloby (After Remand) , 215 Mich App 472, 476; 547 NW2d 48 (1996). To establish ineffective assista nce of counsel, the defendant must “show both that counsel’s performance fell below objective standards of reasonableness, and that it is reasonably probabl e that the results of the proc eeding would have be en different had
it not been for counsel’s error.” People v Frazier , 478 Mich 231, 243; 733 NW2d 713 (2007). “[A] reviewing court must conclude that the act or omission of the defendant’s trial counsel fell within the range of reasonable pr ofessional conduc t if, after a ffirmatively entertaining the range of possible reasons for the act or omission under the facts kno wn to the reviewing court, there might have been a legitimate strategic reason for the act or om ission.” People v Gioglio (On Remand) , 296 Mich App 12, 22- 23; 815 NW2d 589 (2012) , remanded for res entencing 493 Mich 864 (2012).

“Decisions regarding what evidence to present and whether to c all or question witnesses are presumed to be matters of trial strategy. This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it ass ess counsel’s competence with the benefit of hindsight.” People v Rockey , 237 Mich App 74, 76-77; 601 NW2d 887 (1999) (citations omitted). However, the trial strategy must be sound , and “a court cannot insulate the review of counsel’s performance by [simply] calling it trial st rategy.” People v Trakhtenberg

, 493 Mich 38, 52; 826 NW2d 136 (2012). “A sound trial strategy is one that is developed in concert with an investigation that is adequately supported by r easonable professional judgments.” People v Grant

, 470 Mich 477, 486; 684 NW2d 686 (2004). “Ineffective assistanc e of counsel may be established by the failure to call witnesses only if the failure deprives
defendant of a substantial defense.” People v Julian

, 171 Mich App 153, 159; 429 NW2d 615 (1988). Likewise, “[d]efense counsel’s failure to present cert ain evidence will only constitute
ineffective assistance of counsel if it deprived defendant of a substantial defense.” People v Dunigan , 299 Mich App 579, 589; 831 NW2d 243 (2013). “A substantial d efense is one that-3- might have made a difference in the outcome of the trial.” People v Kelly , 186 Mich App 524, 526; 465 NW2d 569 (1990).

The record shows that Mims had implicated defendant in the cri me in his police
statement. Mims later wrote a statement in which he said that he wanted to “recant” because: the police pressured him into making a statement, the police “h ave the wrong person,” and defendant is “innocent.” There is nothing in the record to ind icate that defendant’s counsel was aware that Mims intended to recant and exculpate defendant. Al though Mims’s handwritten statement is dated October 24, 2014, it first appeared in the r ecord in February 2015 and there is nothing in the record to indicate that counsel was aware of it before trial. But if counsel had been aware of it, he could not simply go and question Mims beca use Mims was a codefendant represented by independent counsel and there is nothing in the record to indicate that Mims and his lawyer would have consented to an interview. See MRPC 4.2.

Even assuming that Mims would have spoken to defendant’s couns el, there is nothing in
the record to indicate whether c ounsel did or did not talk to M ims or whether Mims indicated a willingness to testify for defendant. Defendant has thus produ ced an affidavit from Mims, who
stated that he did want to testif y for defendant. Apart from t he fact that exculpatory postjudgment statements offered by a codefendant who declined t o testify at trial are considered untrustworthy and unreliable, People v Terrell , 289 Mich App 553, 565-566; 797 NW2d 684 (2010), the affidavit is not par t of the lower court record and cannot be considered because “it is impermissible to expand the record on appeal.” People v Seals , 285 Mich App 1, 20-21; 776 NW2d 314 (2009); People v Powell , 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). In any case, it shows only that Mims wanted to testify for defendant, not that he actually would have appeared and testified if cal led, much less that he advised def endant or his attorn ey of that fact.

Furthermore, Mims later recanted his intended recantation. As suming that Mims had written his statement in October 2014, saying he wanted to reca nt his police statement inculpating defendant, he had clearly changed his mind by Decem ber 2014 when he pleaded guilty and admitted to aiding and abetting “one of my codefenda nts.” Defendant was his only codefendant. There is nothing in the record to indicate that a t any time between then and the time of trial, Mims had changed his mind again and decided that defendant was not involved or
that he communicated that fact to defendant or defendant’s atto rney. Even if he had, Mims’s proposed testimony could have been impeached with his prior sta tements inculpating defendant, placing Mims in the unenviable position of having to explain wh ether he perjured himself at the plea proceeding or whether he was perjuring himself at trial. Counsel may well have concluded that, under the circumstances, the jury was unlikely to give Mi ms’s proposed testimony any credence, especially in light of the fact that another witness testified that he saw Mims on the porch with another man who gave his name as Lewis and later ide ntified defendant as that man.
Counsel’s decision not to call Mims as a defense witness was ob jectively reasonable.

Defendant also argues that counsel was ineffective because he did not offer Mims’s October 2014 statement into evidence as a statement against int erest under MRE 804(b)(3). Even assuming that defense counsel was aware of the statement b efore trial and that Mims was “unavailable” rather than merely absent, see MRE 804(a)(5), def endant has not established that Mims’s statement qualified for admission under that rule.-4- MRE 804(b) provides in part:

The following are not excluded by the hearsay rule if the decl arant is
unavailable as a witness:

* * *

(3) Statement Against Interest . A statement which was at the time of its making so far contrary to the declarant’s pecuniary or propriet ary interest, or so far tended to subject the declarant to civil or criminal liabil ity . . . that a reasonable person in the declarant’s position would not have ma de the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clear ly indicate the t rustworthines s of the statement.

When, as here, the statement is offered by a defendant to excu lpate himself, four criteria must be met for the statement to be admissible: (1) the declar ant is unavailable to testify, (2) the statement is against the declarant’s penal interest, (3) a reas onable person in the declarant’s position would have believed the statement to be true, and (4) corroborating circumstances clearly indicate the statement is trustworthy. People v Barrera , 451 Mich 261, 268; 547 NW2d 280 (1996). The second criterion requires that the statement t ended to subject the declarant to liability and thus “includes a broad scope of inculpatory state ments.” Id. at 270. Although it “need not by itself prove the declarant guilty,” it “must actua lly assert the declarant’s own culpability to some degree—it cannot be a statement merely excu lpating the accused.” Id . at 271.

Mims provided the following information in his statement: (1) “the police have the wrong person” and defendant is innocent, (2) Mims knows defenda nt is innocent because he saw “the actual shooter” and that per son “is much taller” than defe ndant and “skinny,” (3) Mims implicated defendant because the police “pressured” him and he regretted it, (4) Collins’s identification of defendant was untrustworthy because Collins n ever saw defendant, was under the influence of heroin, and th e identification was based on a photograph of a person Mims did not recognize, and (5) nobody made any threats or promises to i nduce his statement. This does not qualify as a statement against interest. While it indicate s that Mims was present and
witnessed the crime because he claimed to have seen “the actual shooter,” it in no way suggests that Mims was involved in the crime to any extent. Because the statement exculpates defendant but does not inculpate Mims, it does not satisfy the second Barrera criterion and thus was not admissible under MRE 804(b)(3). Therefore, counsel was not ine ffective for failing to seek its
introduction into evidence.

Defendant lastly contends that he is entitled to a new trial b ecause he is actually innocent. The trial court may grant a ne w trial “on any ground that would support appellate reversal of the
conviction or because it believes that the verdict has resulted in a miscarriage of justice.” MCR 6.431(B). A defendant’s actual innocence would satisfy this st andard. Cf. People v Bencheck

, 360 Mich 430, 433; 104 NW2d 191 (1960) (a claim of innocence th at is not obviously frivolous supports withdrawal of a guilty plea before sentencing). The d efendant must present “compelling evidence of innocence.” Cf. People v Shanes , 155 Mich App 423, 428; 399 NW2d-5- 73 (1986) (addressing actual innocence as a reason for withdraw al of a guilty plea). The only
evidence of innocence is defendant’s claim that he was not invo lved in the crime and Mims’s repeated inconsistent statements regarding defendant’s involvem ent. This hardly qualifies as “compelling evidence.” Therefo re, defendant has not shown a pl ain error.

III. JURY SELECTION

Defendant next argues that he is entitled to a new trial becau se the trial court prematurely terminated jury selection wit hout affording him an opportunity to exercise all of his peremptory challenges. Although defense couns el’s objection to this proce dure was belated, we will treat the objection as sufficient to preserve this issue. Because a defe ndant only has “a statutory or courtrule-based right to exclude a certain number of jurors” rather than a constitutional right to do so,
the issue is not constitutional in nature. People v Bell , 473 Mich 275, 293-295 (C ORRIGAN
, J.), 301-303 (T AYLOR
, C.J., concurring); 702 NW2d 128, amended 474 Mich 1201 (2005).

Because defendant was tried alone for a life offense, he and t he prosecutor were each entitled to 12 peremptory challenges. MCL 768.13(1) and (2); M CR 6.412(E)(1). Once a prospective jury has been seated and one or more peremptory cha llenges are exercised, “another juror or other jurors must be selected and examined. Such juro rs are subject to challenge as are previously seated jurors.” MCR 2.511(G). In this case, 14 pro spective jurors were selected from the venire. Following voir dire, the trial court excused one j uror for cause, the prosecutor exercised one peremptory challenge, the defense exercised two p eremptory challenges, and four new prospective jurors were calle d. After further voir dire, b oth parties passed for cause, the prosecutor passed on peremptory challenges, and the defense exe rcised one peremptory challenge. Rather than select a replacement and continue with voir dire, the trial court stated that the case would proceed with the 13 remaining jurors. We agree that the trial court erred in terminating jury selection as it did. See People v Schmitz , 231 Mich App 521, 529-530; 586 NW2d 766 (1998), abrogated in part on other grounds by Bell , 473 Mich at 293-295 (C ORRIGAN
, J.), 301-303 (T AYLOR
, C.J., concurring). However, the error does not warrant automat ic reversal and is subject to harmless error review for a miscarriage of ju stice. Id . at 295; see also MCR 2.613(A).

We are unable to discern any pr ejudice to defendant resulting from the trial court’s decision. At the time the trial court terminated jury selectio n, defendant did not have any challenges for cause and the composition of the jury did not ch ange after defendant had exercised his last peremptory challenge. Defendant did not act ually express any dissatisfaction with the jury that was seated or request any relief in the tria l court. Even on appeal, defendant has not identified any facts to i ndicate that the jury that was seated was not fair and impartial. While defendant points to the fact that one juror knew the judg e from high school, he does not claim that that association affected the juror’s impartiality o r even that he would have excused her had he known of the association. Accordingly, because defe ndant has not shown a miscarriage of justice, t he error was harmless.

IV. ADMISSION OF EVIDENCE

Defendant also argues that the trial court erred in admitting three autopsy photographs showing the victim’s gunshot wounds. We review the trial court ’s decision to admit the photos-6- for an abuse of discretion. People v Ho , 231 Mich App 178, 187; 585 NW2d 357 (1998). The
“trial court abuses its discretion when it chooses an outcome t hat is outside the range of reasonable and principled outcomes.” People v Orr , 275 Mich App 587, 588-589; 739 NW2d 385 (2007) (footnote omitted).

Evidence is admissible if it is relevant. MRE 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is o f consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. The photographs were relevant. Although defendant did not dispute that the victim was deceased and apparently did not dispute that he was murdered, he did not stipulate that the crime amounted to first-degree premeditated murder or second-degree murder. 1 The photographs were thus relevant to the issue of intent becau se they showed the location, nature, and extent of the wounds, People v Mills , 450 Mich 61, 71; 537 NW2d 909, modified 450 Mich 1212 (1995), and the intent o f the actor “was directly in issue because it was an essential element of premeditated murder and felony murder.” People v Gayheart , 285 Mich App 202, 227; 776 NW2d 330 (2009). The photographs were also admissible to corroborate the medical examiner’s testimony. See Mills , 450 Mich at 76. Relevant photographs are not rendered inadmissible “simply because a witness can orally testify about the information contained in the photographs,” id ., or because the “defendant did not contest the nature of the fatal wounds or the physical circumstances of the [killing].” Schmitz , 231 Mich App at 534.

Even if relevant, evidence may be excluded if the probative va lue is substantially outweighed by the danger of unfair prejudice. MRE 403. “While gruesome photographs should not be admitted solely to garner sympathy from the jury, a phot ograph that is admissible for some other purpose is not rendered inadmissible because of its gruesome details.” People v
Mesik ( On Reconsideration ), 285 Mich App 535, 544; 775 NW2d 857 (2009). Rather, “[t]he proper inquiry is always whether the probative value of the pho tographs is substantially outweighed by unfair prejudice.” Mills , 450 Mich at 76.

Evidence offered against a party is “by its very nature . . . prejudicial, otherwise there would be no point in presenting it.” People v Fisher , 449 Mich 441, 451; 537 NW2d 577 (1995). Instead, “unfair prejudice refers to the tendency of the propos ed evidence to adversely affect the objecting party’s position by injecting considerations extraneo us to the merits of the lawsuit[.]” People v Goree

, 132 Mich App 693, 702-703; 349 NW2d 220 (1984). Generally, evi dence is unfairly prejudicial if there is “a danger that marginally prob ative evidence will be given undue or preemptive weight by the jury,” People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (1998), if it would lead the jury to decide the case on an impr oper basis such as emotion, People
v Meadows , 175 Mich App 355, 361; 437 NW2d 405 (1989), or if “it would b e inequitable to allow use of the evidence,” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008).

1 “[F]elony murder is essentially second-degree murder, elevated by one of the felonies
enumerated in MCL 750.316.” People v Maynor , 256 Mich App 238, 243-244; 662 NW2d 468 (2003).-7- The trial court found that the photographs were “gory” to an e xtent because they showed a dead person with injuries to his head, but they were not “exc eptionally gory” because they
showed clean wounds rather than “ dripping blood.” The trial co urt’s assessment is not clearly erroneous. In fact, on first glance, it is not readily apparen t that the wounds to the victim’s cheeks were actually gunshot wounds. Because the photographs w ere relevant and were not so gruesome as to divert the jury’s attention from the actual issu es in the case, the trial court did not abuse its discretion in admitting the photographs.

V. DEFENDANT’S STANDARD 4 BRIEF

Finally, defendant argues in a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, that the prosecuti on failed to present sufficient evidence to support his conviction of first-degree murder. A c hallenge to the sufficiency of the evidence is reviewed de novo on appeal. People v Cline , 276 Mich App 634, 642; 741 NW2d 563 (2007). This Court must review the evidence in a light mos t favorable to the prosecution to
determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Hoffman , 225 Mich App 103, 111; 570 NW2d 146 (1997). Circumstantial evidence and reasonable inferences draw n therefrom are sufficient to prove the elements of a crime. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). “It is for the trier of fact . . . to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). All conflicts in the evidence a re to be resolved in favor of the prosecution. People v Terry , 224 Mich App 447, 452; 569 NW2d 641 (1997).

We note that defendant challenges the sufficiency of the evide nce only as it relates to first-degree premeditated murder, a charge of which he was acqu itted. Defendant mistakenly asserts that the charge of first-degree felony murder was dismi ssed at the preliminary examination. Regardless, defendant’s argument is not directed at the essential elements of premeditated murder or felony murder. He instead argues that t he evidence was insufficient to establish his guilt of any murder because Mims was the gunman a nd Mims falsely implicated
defendant in the offense. This argument is directed at defenda nt’s identity as a perpetrator of felony murder.

“[I]t is well settled that identity is an element of every off ense.” People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). Thus, the identity of a def endant as the perpetrator of an offense must be proved beyond a reasonable doubt for a jury to convict. Id . The prosecutor presented sufficient evidence from which the jury could find th at defendant shot the victim. Collins testified to seeing defendant with what appeared to be a gun before entering the car and to producing and firing a gun while in the car. Although he wa s impeached with a prior statement in which he stated that the victim responded affirmat ively to the question whether “Doyle and them” shot him and even may have said, “Doyle, yeah, ” it was up to the jury to determine whether defendant or Mims was the gunman. But if Mim s had been the gunman, the evidence showed that he and defendant were acting in concert an d thus defendant could be convicted as an aider and abettor, even if he did not actually fire the gun that killed the victim. MCL 767.39; People v Robinson , 475 Mich 1, 6; 715 NW2d 44 (2006). As for Mims’s written-8- statement and affidavit, they were not part of the evidence add uced at trial and are thus irrelevant to a claim regarding the sufficiency of the evidence.

Affirmed.

/s/ Michael J. Kelly /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly