People of Michigan v. Gregory Carlos Boswell ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 26, 2023
Plaintiff-Appellee,
v No. 358448
Oakland Circuit Court
GREGORY CARLOS BOSWELL, LC No. 2019-272390-FC
Defendant-Appellant.
Before: YATES, P.J., and JANSEN and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317,1 two counts of assault with intent to do great bodily harm less than murder (AWIGBH),
MCL 750.84(1)(a),2 and three counts of possession of a firearm during the commission of a felony,
MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 35 to 60 years
for the murder conviction, and 5 to 10 years for each AWIGBH conviction, to be served
consecutive to three concurrent two-year terms of imprisonment for the felony-firearm
convictions. We affirm.
I. FACTUAL OVERVIEW
Defendant’s convictions arise from the fatal shooting of Giovanni Smith and the nonfatal
shootings of Benjamen Baso and Tyler Davis outside defendant’s residence in Pontiac on the
1
Defendant was charged with first-degree premeditated murder, MCL 750.316(1)(a), but the jury
found him guilty of the lesser offense of second-degree murder.
2
Defendant was charged with two counts of assault with intent to commit murder, MCL 750.83,
but the jury found him guilty of the lesser offense of AWIGBH.
-1-
evening of August 21, 2019.3 The prosecution presented evidence that after defendant broke up
with his girlfriend, Ashley Cousino, she went to his home to pick up the remainder of her
belongings on August 21. Ashley informed her mother, Kathryn Baso, of her plans, and Kathryn
drove to defendant’s house and parked across the street. Kathryn also alerted Ashley’s brothers,
Eric Cousino and Benjamen. The brothers and friends who were with them at the time, which
included Davis and Smith, came to the area and parked down the street to keep watch.
Subsequently, Kathryn, Ashley, and defendant talked outside of defendant’s home.
At some point, Eric came over to talk to defendant, and their conversation escalated into a
physical fight. Benjamen and his friends ran down the street, and two or three of the friends joined
in the fight. The fight lasted approximately one minute. After it ended, defendant got up and went
toward the front of his home. One of the friends approached defendant, and defendant and the
friend both threw a punch before defendant went inside the house, closing and locking the door
behind him. The rest of the group began walking away from defendant’s house. Approximately
one minute later, defendant emerged from the house with a gun, fired six shots, and, according to
Ashley, was shooting “at everybody that was walking back to their car.” Kathryn testified that
defendant “was aimlessly shooting everywhere” “trying to hit any target he possibly could.” A
neighbor, who had previously heard arguing, looked outside and saw defendant run inside the
house, return within a minute, and “almost immediately” begin shooting toward the people “as
they ran off” down the street. Subsequently, as the neighbor attempted to help Smith, who had
been struck in the head by the gunfire, defendant stated, in an aggressive tone: “F*** that ni**a,
let him die.” Prosecution witnesses testified that no one, other than defendant, had any kind of
weapon, and no one was charging or running toward defendant before or during the shooting.
At trial, defendant asserted that he acted in self-defense. Defendant testified that after
being attacked, he ran upstairs, took his father-figure’s gun from a bag, and immediately ran back
outside because he “just didn’t feel safe in that house because [he] did not want them to shoot into
the house.” According to defendant, before going inside the house, he saw one of the friends make
a hand gesture, which he interpreted to mean the person had a gun. Defendant also saw another
person on the sidewalk “messing around with their pants, waistline pocket area.” After retrieving
the gun, defendant quickly walked to the sidewalk, turned to his right, and saw a man (later
identified as Smith) standing by a tree. According to defendant, the man raised his arm and had
“something black” in his hand, and defendant, believing that the man had a gun, raised his arm
and fired the gun. Defendant then saw “another man charging” at him “with something else in his
hand.” Defendant fired the gun toward the man “until it was empty” because he honestly and
reasonably believed he was in danger of being killed.
The jury rejected defendant’s self-defense claim and convicted him of the lesser offenses
of second-degree murder (Smith) and two counts of AWIGBH (Benjamen and Davis).
3
The medical examiner testified that the cause of Smith’s death was a gunshot to his face; his
death would have been immediate because of the trajectory of the bullet. Benjamen was shot in
the leg, and Davis was shot in the wrist.
-2-
II. PHOTOGRAPHIC EVIDENCE
Defendant first argues that the trial court abused its discretion by admitting a crime scene
photograph that depicts Smith in the location where he was found, lying in blood from his gunshot
wound. We disagree. The decision to admit photographic evidence is within the sole discretion
of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. People v
Head, 323 Mich App 526, 539-540; 917 NW2d 752 (2018). An abuse of discretion occurs when
the trial court’s decision falls outside the range of reasonable and principled outcomes. People v
Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013).
The general rule is that “[a]ll relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, the Constitution of the State of Michigan, the[] rules [of
evidence], or other rules adopted by the Supreme Court” and “[e]vidence which is not relevant is
not admissible.” MRE 402. Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” MRE 401. “A trial court admits relevant evidence to
provide the trier of fact with as much useful information as possible.” People v Cameron, 291
Mich App 599, 612; 806 NW2d 371 (2011). Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice under MRE 403. MRE 403 is
not intended to exclude “damaging” evidence, because any relevant evidence will be damaging to
some extent. People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod on other grounds 450
Mich 1212 (1995). Unfair prejudice exists where there is “a danger that marginally probative
evidence will be given undue or pre-emptive weight by the jury” or “it would be inequitable to
allow the proponent of the evidence to use it.” Id. at 75-76 (quotation marks and citation omitted).
In the second situation, the unfair prejudice language “refers to the tendency of the proposed
evidence to adversely affect the objecting party’s position by injecting considerations extraneous
to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” Cameron, 291 Mich
App 611 (citation omitted). The prosecution may not introduce evidence specifically calculated
to inflame the jury’s emotions, especially if the evidence has little other substantive value. Mills,
450 Mich at 77. The gruesomeness of a photograph, standing alone, is insufficient to merit its
exclusion. Id. at 76. “The proper inquiry is always whether the probative value of the photographs
is substantially outweighed by unfair prejudice.” Id.The trial court did not abuse its discretion by admitting the challenged photograph. The
photograph was instructive in aiding the jury’s understanding of exactly where Smith’s body was
found and the surrounding conditions, which was probative of the disputed issues of defendant’s
intent and his self-defense claim. The photograph also corroborated the testimony of a neighbor,
who attempted to assist Smith after the shooting, and a responding emergency medical technician
concerning what they both observed related to the location and condition of Smith’s body. See id.
at 71-72. Contrary to defendant’s argument, the fact that he did not dispute the cause of Smith’s
death or the location of the body does not render the photograph inadmissible. See id. at 71.
“Photographs are not excludable simply because a witness can orally testify about the information
contained in the photographs.” Id. at 76. In addition, the prosecution was not obligated to use the
least prejudicial evidence possible. While defendant argues that the use of only those photographs
from a distance, as opposed to the challenged “close-up” photograph, would have been less likely
to affect the jurors’ emotions, a relevant photograph is not inadmissible merely because it may
arouse emotion. The photograph was not offered to simply inflame the jury. The trial court
-3-
considered the parties’ arguments at trial, and it credited the prosecutor’s position regarding the
probative value of the photograph to show the exact location of Smith’s body as it related to
defendant’s claim of self-defense. The court’s remark that it had “seen more gruesome pictures
than that” indicates that the court also considered the potential prejudicial effect of the photograph,
and concluded that any prejudicial effect did not substantially outweigh the probative value of the
photograph as it pertained to the relevant purpose for which it was offered. Thus, it is apparent
that the trial court judicially weighed the probative value of the photograph against its potentially
prejudicial effect. The trial court’s decision to admit the photograph, which was relevant to
material issues at trial, was within the range of reasonable and principled outcomes. Accordingly,
the trial court did not abuse its discretion by admitting it.
III. JURY INSTRUCTIONS
Next, defendant argues that he is entitled to a new trial because the trial court failed to
instruct the jury that self-defense could also be a defense to AWIGBH, a lesser offense of assault
with intent to commit murder (AWIM). Again, we disagree. As defendant correctly observes, the
trial court instructed the jury that lawful self-defense is a defense to first-degree murder, the lesser
offenses of second-degree murder and voluntary manslaughter, AWIM, and the three counts of
felony-firearm associated with the murder and assault charges, but omitted AWIGBH from the
stated list of offenses for which self-defense could apply to excuse criminal responsibility.
A. INSTRUCTIONAL CLAIM
As defendant acknowledges, there was no objection to the trial court’s jury instructions as
given, or request for any additional instructions. Indeed, after the trial court completed its final
instructions, the court asked the parties whether the attorneys were “satisfied with the jury
instructions with the modification that has been requested by the prosecutor[.]” Defense counsel
stated, “Defense is satisfied.” By expressly approving the jury instructions, defendant waived
appellate review of his substantive claim of instructional error. People v Kowalski, 489 Mich 488,
504; 803 NW2d 200 (2011). Defendant’s waiver extinguished any error, leaving no error to
review. People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant further argues, however, that defense counsel was ineffective for failing to
request an instruction clarifying that self-defense also applies to the lesser offense of AWIGBH,
and for failing to object when an instruction in that regard was not given. We disagree.
Defendant preserved his claim of ineffective assistance of counsel by moving for a new
trial or an evidentiary hearing in the trial court. People v Abcumby-Blair, 335 Mich App 210, 227;
966 NW2d 437 (2020). However, because the trial court denied defendant’s request for an
evidentiary hearing, review of this ineffective-assistance claim is limited to “errors apparent on
the record.” Id. “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
NW2d 255 (2016). “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
-4-
Nix, 301 Mich App 195, 207; 836 NW2d 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.; see also People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “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 NW2d 714 (2009).
It is clear from the record that the trial court failed to explicitly include the lesser offense
of AWIGBH when listing all of the charged and lesser offenses to which lawful self-defense
applied.
Whether defense counsel’s failure to object to the trial court’s jury instructions was
objectively unreasonable depends on whether the court’s instructions fairly presented the issues
and sufficiently protected defendant’s substantial rights. Due process requires that the trial court
“properly instruct the jury so that it may correctly and intelligently decide the case.” People v
Clark, 453 Mich 572, 583; 556 NW2d 820 (1996). To that end, the jury instructions “must include
all elements of the crime charged, and must not exclude from jury consideration material issues,
defenses or theories if there is evidence to support them.” People v Armstrong, 305 Mich App
230, 240; 851 NW2d 856 (2014) (quotation marks and citation omitted). Jury instructions are,
however, reviewed in their entirety to determine whether any error requiring reversal occurred.
Kowalski, 489 Mich at 501. An imperfect instruction will not warrant reversal if the instructions,
examined as a whole, fairly presented the issues to be tried and sufficiently protected the
defendant’s rights. Id. at 501-502.
While the trial court’s self-defense instructions were imperfect because they did not
explicitly state that self-defense could apply to the lesser offense of AWIGBH, they fairly
presented the issues to be tried and sufficiently protected the defendant’s rights. The trial court
clearly instructed the jury that self-defense applied to all of the other charges, including AWIM
and the felony-firearm charges related to the AWIM charges and thus, logically, applied to the
lesser offense option of AWIGBH.
However, even if it was objectively unreasonable for defense counsel not to object to the
court’s omission or not to explicitly request an instruction clarifying that self-defense also applies
to the lesser offense of AWIGBH, defendant has not demonstrated that he was prejudiced by
counsel’s failure in this regard. As previously indicated, prejudice is established when a defendant
shows that “but for counsel’s deficient performance, there is a reasonable probability that the
outcome would have been different.” Trakhtenberg, 493 Mich at 51. As plaintiff observes, the
trial court’s instructions made it clear that self-defense applied to all of the felony-firearm charges,
and two of those charges were associated with the AWIM charges for which the jury was also
instructed on the lesser offense of AWIGBH. Thus, in order to find defendant guilty of the two
felony-firearm counts related to defendant’s two AWIGBH convictions, the jury had to have
concluded beyond a reasonable doubt that defendant was not acting in self-defense when he
committed AWIGBH.
Furthermore, there was no material distinction between defendant’s theory of self-defense
as it related to the assault and the murder charges. Although defendant seeks to somehow separate
his conduct related to his murder conviction, for which the trial court properly instructed the jury
on self-defense, from his conduct related to the AWIGBH convictions, each of these charges arose
-5-
from the same uninterrupted sequence of events in which defendant emerged from his house with
a gun and fired multiple shots at bystanders whom he allegedly perceived as threats to his safety.
The jury’s verdict reflects its complete rejection of defendant’s claim that he acted in self-defense.
While it would have been appropriate for the trial court to have listed AWIGBH in its self-defense
instructions, there was no rational basis for the jury to conclude that defendant was acting in self-
defense when he fired gunshots at the AWIGBH victims, but not when he fired a gunshot at the
murder victim. Thus, from an evidentiary perspective, there is simply not a reasonable probability
that the outcome would have been different had the lesser offense of AWIGBH been included in
the trial court’s self-defense instructions. Id. Indeed, defendant’s own testimony at trial simply
did not show that he acted in lawful self-defense. See MCL 780.972(1). In particular, defendant
testified that after he went inside his home and closed the door, there was no imminent danger, and
he conceded that there was no imminent danger after he rushed back outside with a gun, and that
he “walk[ed] to the [alleged] danger[.]”
In sum, reviewing the trial court’s instructions in their entirety, and considering the
evidence presented at trial to support defendant’s theory of self-defense, there is no reasonable
probability that the outcome would have been different but for defense counsel’s inaction related
to the trial court self-defense instructions. Thus, defendant has not demonstrated that he was
prejudiced by defense counsel’s inaction. Therefore, defendant cannot establish an ineffective-
assistance claim. Nix, 301 Mich App at 207. Accordingly, the trial court did not abuse its
discretion by denying defendant’s motion for a new trial on the basis of defendant’s claim of an
instructional error or the related ineffective-assistance claim. People v Abraham, 256 Mich App
265, 269; 662 NW2d 836 (2003).
IV. VICTIM-IMPACT STATEMENTS
In his last claim, defendant argues that he is entitled to resentencing because statements
from several persons who do not qualify as “victims” under the Crime Victim’s Rights Act
(CVRA), MCL 780.751 et seq., were allowed to submit written statements for the trial court’s
consideration at sentencing. We disagree. Whether various individuals were entitled to make a
victim-impact statement at sentencing is a question of law, which is reviewed de novo. People v
Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
“MCL 780.764 and 780.765 grant individuals who suffer direct or threatened harm as a
result of a convicted individual’s crime the right to submit an impact statement both at the
sentencing hearing and for inclusion in the PSIR[.]” People v Waclawski, 286 Mich App 634, 691;
780 NW2d 321 (2009). However, “the right is not limited exclusively to the defendant’s direct
victims,” id., “but may also include others, such as family members,” People v Lampe, 327 Mich
App 104, 123; 933 NW2d 314 (2019); Waclawski, 286 Mich App at 691-692. In any event, for
purposes of making or submitting a victim-impact statement, if the victim is deceased, the CVRA
specifically includes in its definition of “victim” a “parent of the victim” and a “sibling of the
victim.” MCL 780.752(1)(m)(v)(C) and (E). Thus, in this case, Smith’s sister and mother were
both authorized to make a victim-impact statements. When defendant challenged the numerous
letters received by the trial court in his motion to correct an invalid sentence, the court made clear
that it was only “the statements of the victim’s mother and sister that impacted [the] court’s
decision as to sentencing.” While letters from other individuals were in fact submitted, defendant
correctly concedes that “[i]f the Court did not rely on the challenged information, resentencing
-6-
would not be required.” In sum, because Smith’s mother and sister were authorized to submit
victim-impact statements under the CVRA, and the trial court made clear that it only relied on
those two statements when determining defendant’s sentence, defendant is not entitled to be
resentenced on this ground.
Affirmed.
/s/ Christopher P. Yates
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
-7-