People v. McNeely
| Docket Number | 352830 |
| Decision Date | 16 December 2021 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MAURICE DESHAWN MCNEELY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-006172-01-FC
Before: Cavanagh, P.J., and Servitto and M. J. Kelly, JJ.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL 750.317, [1] felon in possession of a firearm, MCL 750.224f(1), and two counts of possession of a firearm during the commission of a felony, second offense MCL 750.227b. The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 65 to 100 years for the murder conviction and 2 to 10 years for the felon-in-possession conviction, to be served consecutive to two five-year terms of imprisonment for the felony-firearm convictions. We affirm.
Defendant's convictions arise from the fatal shooting of Martis James at a street party in Detroit late on July 4, 2019. At trial, the prosecutor argued that, after arriving at the party defendant got into a car with friends. At one point, the victim and another man were involved in a confrontation that ended soon after it started. Afterward, defendant left the car, approached the victim, and made a comment to him. The victim responded by remarking that he did not know defendant. At that point, defendant pulled a gun from his pocket, shot the victim once in the chest, and then fled the scene. Defendant was later arrested in West Virginia.
At trial, the defense argued that defendant was misidentified as the shooter. The defense argued that the witnesses' testimony was not credible and inconsistent, and that they could be "covering the real shooter." In particular, the defense highlighted that only one shell casing was found at the scene, but five gunshots were audible on a 911 recording, and that the police did not locate key witnesses, including the man who fought with the victim before the shooting.
Defendant argues that he is entitled to a new trial because defense counsel's representation at trial was ineffective. "Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law." People v Solloway, 316 Mich.App. 174, 187; 891 N.W.2d 255 (2016). Because defendant did not move for a new trial or a Ginther[2] hearing in the trial court, and because this Court denied his motion to remand, our review of defendant's ineffective-assistance claim is limited to mistakes apparent on the record. See People v Abcumby- Blair, ___Mich App ___, ___; ___ N.W.2d (2020) (Docket No. 347369); slip op at 8; Solloway, 316 Mich.App. at 188. "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id. "A defendant must meet a heavy burden to overcome the presumption that counsel employed effective trial strategy." People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009).
Defendant argues that defense counsel failed to properly address witness Corvel James's "inflammatory outburst" after James was called as a witness and was on his way to the witness stand. Although defense counsel moved to disqualify the witness, defendant now argues that counsel should have moved for a mistrial, or requested that the trial court either question the jurors or provide a curative instruction. We disagree.
Defendant has failed to demonstrate that a mistrial was warranted. A "mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant, and impairs his ability to get a fair trial." People v Haywood, 209 Mich.App. 217, 228; 530 N.W.2d 497 (1995). Initially, defendant appears to overstate the extent of Corvel's conduct. Although defendant describes Corvel's conduct as involving an "inflammatory outburst," after defendant moved to disqualify Corvel, the trial court agreed that the witness "provided an angry stare" at defendant, but clarified that "it wasn't an aggressive gesture." Then, in response to defense counsel's statement that the court's "deputies had to step in and, and restrain him," the court again clarified that they did not "have to," but they "did approach him to make sure that there wasn't any incident." Corvel did not make any statements to defendant, and his objectionable conduct of giving "an angry look" was immediately halted. The trial court noted that the jury had observed what happened, and agreed "they're probably going to conclude that" Corvel "is very angry with" defendant.[3] However, the trial court found that Corvel's behavior was not cause for him to be disqualified as a witness, and the matter could be remedied by instructing him how to conduct himself on the stand. Given the trial court's comments and its denial of defendant's request to disqualify Corvel as a witness, there is no reasonable probability the court would have concluded that the objectionable behavior rose to the level of warranting a mistrial. Therefore, defense counsel's failure to move for a mistrial was not objectively unreasonable, nor can defendant demonstrate that he was prejudiced by counsel's failure to request a mistrial. "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).
While it may have been reasonable for defense counsel to have asked the court to question the jurors about the potential influence of Corvel's conduct on their impartiality or request a curative instruction, especially since the trial court stated that it would entertain such a request, counsel's decision whether to pursue these options was a matter of trial strategy. Counsel reasonably may have preferred not to further highlight the matter before the jury. Moreover, there is no reasonable probability that counsel's failure to pursue these options affected the outcome of defendant's trial. Again, the record does not support that the objectionable conduct was as egregious as defendant suggests. Corvel did not make any statements to or about defendant, but only gave him an "angry look," which, as the trial court observed, could lead the jury to believe that he was angry with defendant. In its final instructions, the trial court instructed the jury that it was not to let sympathy or prejudice influence its decision, that it was to decide the case only on the basis of the properly admitted evidence, and that the jury was to follow the court's instructions. Juries are presumed to have followed their instructions. People v Breidenbach, 489 Mich. 1, 13; 798 N.W.2d 738 (2011). Defendant has not presented any basis for overcoming the presumption that the jury followed these instructions. Consequently, defendant's claim of ineffective assistance of counsel on this basis must fail.
Next, defendant argues that defense counsel was ineffective for failing to object "on all possible grounds" to the admission of Detroit Police Detective James Quinn-Johnson's expert testimony and supporting exhibits. Although counsel raised objections to Detective Quinn-Johnson's testimony, defendant essentially argues that his challenges were not adequate. We disagree. Again, our review of this issue is limited to mistakes apparent on the record. Solloway, 316 Mich.App. at 188.
The trial court qualified Detective Quinn-Johnson as an expert in "cell call detailed records and tower mapping." Detective Quinn-Johnson provided cell phone tracking testimony that placed defendant in a particular general area before and after the 911 call that reported the shooting. He explained that he used the cell phone tower tracking information to determine "the general area" of a phone that was linked to defendant at a particular time, but explained that cell tower information could not be used to pinpoint a specific location of a phone.
"[T]he determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court's discretion." People v Murray, 234 Mich.App. 46, 52; 593 N.W.2d 690 (1999). MRE 702 governs the admissibility of expert testimony and provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
MRE 702 requires "a court evaluating proposed expert testimony [to] ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case." People v Kowalski, 492 Mich. 106, 120; 821 N.W.2d 14 (2012). This inquiry, however, is a flexible one and must be tied to the facts of the particular case; thus, the factors for determining reliability may be different depending upon the type of expert testimony offered,...
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