People v. Ontiveroz
| Decision Date | 09 November 2021 |
| Docket Number | 351277 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY RICHARD ONTIVEROZ, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANTHONY RICHARD ONTIVEROZ, Defendant-Appellant.
No. 351277
Court of Appeals of Michigan
November 9, 2021
UNPUBLISHED
Saginaw Circuit Court LC No. 18-045776-FC
Before: Swartzle, P.J., and Sawyer and Letica, JJ.
Per Curiam.
Defendant appeals as of right from his convictions, following a jury trial, of second-degree murder, MCL 750.317, possession of a firearm when committing a felony (felony-firearm), MCL 750.227b, and third-degree fleeing and eluding a police officer, MCL 257.602a(3)(b).[1] The trial court sentenced defendant as a third habitual offender, MCL 769.11, to 38 to 60 years' imprisonment for the murder conviction, 2 to 10 years' imprisonment for the fleeing-and-eluding conviction, and two years' imprisonment for the felony-firearm conviction.
On appeal, appellate counsel argues that defendant's trial counsel provided ineffective assistance by failing to call an expert witness on trauma reactions to explain defendant's attempt to conceal his role in the subject homicide, and that prosecutorial error denied defendant a fair trial. Defendant, in his Standard 4 brief, argues that defense counsel was ineffective for failing to pursue an alibi defense, and that the evidence was insufficient to sustain his convictions. We affirm.
I. BACKGROUND FACTS
This case arose following the shooting death of 26-year-old Deviontae Banks on September 12, 2018. Banks arrived at the house of his friend, Izack Campbell, after giving Campbell a ride to an appointment with Campbell's probation officer. Thereafter, Campbell walked down the
street to the mini mart around the corner to buy a Gatorade. As Campbell walked back to the home where he was staying, he passed Banks, who was also walking to the mini mart. Banks and Campbell conversed briefly before going their separate ways. Once Campbell reached the house and sat down to drink his refreshment, he heard three popping sounds. About thirty seconds later, Banks stumbled into the doorway, stating: "[T]hey shot me."
Campbell attempted to move Banks into his car to take him to the hospital, but Banks collapsed and became unresponsive. Campbell then called 911 and Banks was transported to the hospital, where he soon died from his injuries.
An autopsy revealed Banks was shot three times, in the chest, through the right forearm just below the elbow, and at the tip of his right index finger. A toxicology report showed the presence of benzodiazepine, oxycodone, Promethazine, and marijuana in Banks's blood.
After the shooting, defendant went to his cousin's house. Defendant gave his cousin three shell casings, which the cousin flushed down the toilet.[2] Defendant also told his cousin that he "fucked up" and might have "killed Banks." Another person living in the home also heard defendant say that he "fucked up." Defendant left his cousin's house.
Later that afternoon, defendant encountered Kyle Kosciuszko at the mall. Two days before the shooting, Kosciuszko had rented a car for defendant and defendant paid him $50 or $100. Kosciuszko believed that he rented the car because defendant did not have a license. The day before the murder, however, Kosciuszko exchanged the first rental car for a blue Malibu.
During their mall encounter, defendant stated "[s]omething like I can't just be out here like this. If I told you [what] I did, you'd call Crime Stoppers on me or something." Kosciuszko thought defendant was joking, as they often did.
After leaving the mall, defendant drove to a hotel room rented by his cousin and spent the night there. Subsequent analysis of defendant's cell phone data confirmed he was in the area of the crime scene before moving to the areas of his cousin's home, the mall, and the hotel. Defendant also made or received over fifty calls between 1 and 2 p.m., and over one hundred calls between 2 and 4 p.m., on the day of the shooting.
The day after the shooting, the Saginaw Police Department and the United States Marshall Service were searching for the blue Malibu. Because the car was a rental vehicle, the police were able to track its location. A Saginaw police officer spotted defendant in the blue Malibu and activated his police cruiser's lights and siren in an attempt to stop defendant. Instead of stopping, defendant drove through a neighborhood, where the speed limit was 25 miles per hour, at speeds of 60 to 70 miles per hour. Later, the Malibu was found in a parking lot and defendant had fled on foot.
A police dog attempted to track defendant, but was unsuccessful in finding him. The dog nevertheless found defendant's hat, which the police officer had observed defendant wearing. Subsequent DNA analysis determined that defendant likely matched the DNA profile from the hat.
About two hours after the car chase, defendant was observed walking into his grandmother's house. After police arrived, defendant eventually surrendered.
At trial, defendant admitted shooting Banks, but testified that he had acted in self-defense. According to defendant, he was parked on the street in front of the mini-mart when Banks came up to the rented Malibu's passenger window. Banks had his right arm on top of the car and was leaning and looking into the car. Defendant could not see Banks's left hand. Banks then asked defendant, "What do you got for me," which defendant understood to mean that Banks was robbing him again.[3] Defendant took some money out of his pocket and threw it toward Banks, but Banks demanded more.
According to defendant, Banks was aggressive and "angsty," and defendant could tell that Banks was high. Defendant also testified that Banks was "clenching" a black and silver gun in the waistband of his pants. Banks pulled the gun out but did not point it at defendant. Defendant testified that he knew that he was being robbed again and that Banks was going to kill him. So defendant "took the only action [he] could to save [his] life." Defendant grabbed his gun that was between the driver's seat and the center console and shot toward the passenger window. After the shooting, defendant started the car and drove away without calling 911.
At trial, however, Campbell testified that he did not see Banks with a gun. And the subsequent police investigation did not locate a gun.
The jury convicted defendant. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his trial counsel failed to provide effective assistance of counsel because he did not call an expert witness to explain and contextualize his post-shooting behavior. Further, trial counsel failed to call an expert witness to testify about how the drugs in Banks's system affected his behavior. In defendant's Standard 4 brief, he argues that trial counsel was ineffective for failing to investigate and call an alibi witness and the person identified as the driver of the vehicle that the police chased. We disagree.
Appellate counsel moved this Court to remand for a Ginther[4] hearing to develop the claims of ineffective assistance of counsel, which this Court denied. People v Ontiveroz, unpublished order of the Court of Appeals, entered March 4, 2021 (Docket No. 351277). Accordingly, our review is limited to counsel's errors apparent on the existing record. People v Unger, 278 Mich.App. 210, 253; 749 N.W.2d 272 (2008). The constitutional question whether an attorney provided ineffective assistance, depriving a defendant of the right to counsel, is reviewed de novo. Id. at 242.
A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. U.S. Const, Am VI; Const 1963, art 1, § 20. This "right to counsel encompasses the right to the 'effective' assistance of counsel." People v Cline, 276 Mich.App. 634, 637; 741 N.W.2d 563 (2007). The "effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Rodgers, 248 Mich.App. 702, 714; 645 N.W.2d 294 (2001). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) "that counsel's performance was deficient" and (2) "that counsel's deficient performance prejudiced the defense." People v Taylor, 275 Mich.App. 177, 186; 737 N.W.2d 790 (2007) (quotation marks and citation omitted). A counsel's performance is deficient if "it fell below an objective standard of professional reasonableness." People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007). The performance will be deemed to have prejudiced the defense if it is reasonably probable that, but for counsel's error, "the result of the proceeding would have been different." Id.
A. EXPERT WITNESS
Defendant argues that trial counsel's performance was deficient because he should have obtained an expert that would counter the prosecutor's argument that defendant's post-shooting behavior was evidence of guilt. Defendant asserts that an expert could have testified that defendant's post-shooting behaviors "were normal human responses to a traumatic event, particularly for a person only 20 years of age with a prior traumatic experience with Mr. Banks and several negative encounters with police." Appellate counsel argues that it would have been helpful to defendant's claim of self-defense if he could have demonstrated that his post-shooting evasion of the police was a reaction to trauma, as an alternative to attributing it to a consciousness of guilt. "[A] defendant is not entitled to offer evidence of a lack of mental capacity for the purpose of avoiding or reducing criminal responsibility by negating the intent element," but a defendant may, when relevant, "present evidence that he or she is afflicted with a mental disorder or otherwise has limited mental capabilities." People v Yost, 278 Mich.App. 341, 354-360; 749 N.W.2d 753 (2008).
The failure to call witnesses can constitute ineffective assistance of counsel. See People v...
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