People of Michigan v. Javion James Rodgers ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 16, 2019
Plaintiff-Appellee,
v No. 342456
Wayne Circuit Court
JAVION JAMES RODGERS, LC No. 17-006709-01-FC
Defendant-Appellant.
Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree premeditated
murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony
(“felony-firearm”), MCL 750.227b. Defendant was sentenced to life imprisonment without the
possibility of parole for the first-degree premeditated murder conviction, and two years’
imprisonment for the felony-firearm conviction. We affirm defendant’s convictions and
sentences, but remand to allow the trial court to address restitution and court costs, and amend
the judgment of sentence if necessary.
I. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the evidence presented to the trial court was not sufficient to
support his conviction of first-degree premeditated murder, because there was no evidence that
the crime was premeditated or deliberate.
This Court reviews a challenge to the sufficiency of the evidence in a jury trial de novo.
People v Gaines, 306 Mich. App. 289, 296; 856 NW2d 222 (2014). The evidence is viewed “in
the light most favorable to the prosecution, to determine whether the trier of fact could have
found that the essential elements of the crime were proved beyond a reasonable doubt.” Id.
First-degree premeditated murder is defined as “[m]urder perpetrated by means of poison,
lying in wait, or any other willful, deliberate, and premeditated killing.” MCL 750.316(1)(a).
“In order to convict a defendant of first-degree premeditated murder, the prosecution must first
prove that the defendant intentionally killed the victim.” People v Unger, 278 Mich. App. 210,
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223; 749 NW2d 272 (2008). The prosecution must also prove that a defendant’s actions were
premeditated and deliberate. “[T]o premeditate is to think about beforehand; to deliberate is to
measure and evaluate the major facets of a choice or problem.” People v Oros, 502 Mich. 229,
240; 917 NW2d 559 (2018) (quotation marks and citation omitted).
Defendant challenges his conviction based on an alleged lack of evidence available to
show that the murder was premeditated or deliberate. Although premeditation and deliberation
are different concepts, “the same facts may tend to establish each element . . . .” Id. at 240-241.
Premeditation and deliberation each “require sufficient time to allow the defendant to take a
second look.” People v Abraham, 234 Mich. App. 640, 656; 599 NW2d 736 (1999) (quotation
marks and citation omitted). The amount of time necessary to allow a defendant to think twice
about his or her actions is not an exact figure; rather, “[i]t is often said that premeditation and
deliberation require only a ‘brief moment of thought’ or a ‘matter of seconds.’ ” Oros, 502 Mich.
at 242-243 (quotation marks and citation omitted; alteration in original). It is the factfinder’s
responsibility “to determine whether there was sufficient time for a reasonable person to subject
his or her action to a second look.” Id. at 242. Evidence that tends to establish premeditation
and deliberation includes such things as “(1) the prior relationship of the parties; (2) the
defendant’s actions before the killing; (3) the circumstances of the killing itself; and (4) the
defendant’s conduct after the homicide.” Abraham, 234 Mich. App. at 656 (quotation marks and
citation omitted).
When viewed in the light most favorable to the prosecution, the evidence supports a
finding that defendant’s decision to shoot the victim was premeditated and deliberate.
Testimony was presented that showed defendant and the victim engaged in a lengthy argument in
the afternoon on the day the victim was shot. At the conclusion of the argument, defendant
walked down the street and fired a revolver in the air four times while staring at the victim and
the victim’s fiancée in a threatening manner. Expert testimony was presented to show that the
victim was shot with five .38 caliber bullets, which could only be fired from a revolver similar to
the one defendant was carrying. Specifically, a revolver capable of shooting .38 caliber bullets
can only hold six rounds of ammunition. When defendant, earlier in the day and in the presence
of the victim and his fiancée, fired the revolver in the air four times, only a maximum of two
bullets could have remained in the revolver. However, defendant later shot the victim five times
with the same gun. An empty box of .38 caliber bullets was also found in defendant’s house.
This evidence allowed the jury to infer that defendant went home and reloaded the gun before
returning to the victim’s house. Additionally, defendant lured the victim back to the scene of the
shooting by telling him that he was at the victim’s house while the victim was not home. All of
these actions suggest that defendant planned to use the gun on the victim well before calling the
victim and convincing him to return to his house. Oros, 502 Mich. at 240.
Further, in the moments before the victim was shot, defendant pulled a gun out and
pointed it at the victim. While defendant was pointing the gun at the victim, the victim took his
shirt off to show defendant that he was not carrying a weapon. There was a brief pause between
the moment defendant pointed the gun and when he pulled the trigger. Defendant shot the victim
four times in the front, but the fifth bullet entered through the victim’s back, suggesting that the
victim turned around and attempted to move away from defendant while defendant was shooting
at him. Abraham, 234 Mich. App. at 656. The evidence also indicated that defendant fled to
Ohio, and was later apprehended in West Virginia, following the shooting. Evidence that
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defendant fled the state after the shooting could also have been considered by the jury in
assessing defendant’s guilt. Unger, 278 Mich. App. at 226.
In sum, when viewed in the light most favorable to the prosecution, the evidence suggests
that the murder was premeditated and deliberate. Defendant planned to shoot the victim, lured
him to the scene of the crime, and shot him five times, going so far as to continue shooting as the
victim attempted to move away from the gun. Although defendant contends that this evidence
does not directly support the conclusion that the crime was premeditated or deliberate,
“[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” Oros, 502 Mich. at 239 (quotation marks and
citation omitted). Accordingly, there was sufficient evidence to support defendant’s conviction
of first-degree premeditated murder.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied the effective assistance of counsel where
counsel failed to object to testimony from Sergeant Michael Lee, and failed to request a jury
instruction on voluntary manslaughter.
“Whether the defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan Constitutions is a mixed question of fact and law.” People
v Ackley, 497 Mich. 381, 388; 870 NW2d 858 (2015). When examining a defendant’s ineffective
assistance of counsel argument, “this Court reviews for clear error the trial court’s findings of
fact and reviews de novo questions of constitutional law.” People v Dixon-Bey, 321 Mich. App.
490, 515; 909 NW2d 458 (2017) (quotation marks and citation omitted). However, because
defendant failed to properly preserve this issue by filing a motion for a new trial or a Ginther1
hearing in the trial court, this Court’s review is “limited to mistakes apparent on the record.”
People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
Defendant argues that he was denied the effective assistance of counsel because defense
counsel failed to object to Sergeant Lee’s testimony regarding an empty box of .38 caliber bullets
and failed to request a jury instruction on voluntary manslaughter.
To establish ineffective assistance of counsel, a defendant is required to demonstrate
“that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but
for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). Defense
counsel is presumed to be effective, People v Frazier, 478 Mich. 231, 243; 733 NW2d 713
(2007), and a defendant must be able to “overcome a strong presumption that counsel’s
performance constituted sound trial strategy,” People v Riley (After Remand), 468 Mich. 135,
140; 659 NW2d 611 (2003).
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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Defendant first argues that defense counsel was ineffective for failing to object to the
introduction of Sergeant Lee’s testimony on the basis of relevance under MRE 401. MRE 401,
which governs the relevance of evidence, defines “relevant evidence” as:
[E]vidence having 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. [Dixon-Bey, 321 Mich. App. at 512,
quoting MRE 401.]
Defendant takes issue with portions of Sergeant Lee’s testimony concerning the empty box of
.38 caliber bullets found at a house that was located on the same street as the victim’s house.
Defendant argues that the testimony was not relevant because no evidence was presented to show
that he lived at the house where the empty box was found, or that the bullets belonged to him.
However, testimony presented at trial supported the conclusion that defendant lived at the
house where the empty box was discovered. The victim’s fiancée testified that defendant lived at
the house in question, and defendant’s stepfather allowed police officers to search the house for
defendant, whom the officers traced to that address based on information given to them by the
victim’s fiancée. Further, defendant never proffered evidence challenging the assertion that he
lived in the house or contesting the legality of the search executed on the house. The evidence,
as presented to the jury, showed that bullets of the same type and caliber as those used in the
shooting were found at a house associated with defendant. “To be relevant, evidence need only
have a tendency to make the existence of any fact that is of consequence more or less probable.”
Dixon-Bey, 321 Mich. App. at 513. The presence of the empty box of .38 caliber bullets at an
address that was connected to defendant increased the probability that defendant owned the
bullets and used them to shoot the victim. The evidence also strengthened the credibility of
testimony from the victim’s fiancée, who was the sole witness able to identify defendant as the
shooter. Evidence supporting identification testimony is inherently relevant because “identity is
an element of every offense.” People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008).
Thus, the evidence was relevant under MRE 401, and defense counsel was not ineffective for
failing to object. See People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
And, even if defense counsel successfully objected to the evidence at issue, the jury still
would have heard testimony in which defendant was identified as the shooter by an eyewitness,
who testified that defendant shot the victim five times with a revolver. The evidence linking the
empty box of bullets to defendant was relevant to corroborate the testimony that defendant shot
and killed the victim. Thus, even if the evidence was excluded, it is not likely that the outcome
of the trial would have been favorable to defendant.
We also disagree with defendant’s argument that defense counsel was ineffective for
failing to request a jury instruction on voluntary manslaughter.
Voluntary manslaughter is a lesser included offense of murder, and its “elements are
completely subsumed in the greater offense.” People v Mendoza, 468 Mich. 527, 540-541; 664
NW2d 685 (2003). To prove that a defendant is guilty of voluntary manslaughter, “one must
show that the defendant killed in the heat of passion, the passion was caused by adequate
provocation, and there was not a lapse of time during which a reasonable person could control
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his passion.” Id. at 535. “[W]hen a defendant is charged with murder, an instruction for
voluntary . . . manslaughter must be given if supported by a rational view of the evidence.” Id. at
541.
A review of the evidence does not support the argument that defendant killed the victim
in the heat of passion, after adequate provocation. The evidence showed that, immediately
before defendant shot the victim, he and the victim engaged in a verbal disagreement, which
defendant initiated by remaining on the victim’s property after the victim repeatedly asked him
to leave. Earlier in the conversation, the victim threatened defendant with a crowbar by raising it
up in the air and demanding that defendant leave the property. However, there was no evidence
that the victim was still holding the crowbar or behaving in a threatening manner toward
defendant when he was shot. Further, evidence indicated that defendant pulled out his gun and
pointed it at the victim, but did not open fire until after the victim removed his shirt in an effort
to show defendant that he was unarmed. The evidence does not support the conclusion that
defendant acted in the heat of passion after adequate provocation. “The provocation necessary to
mitigate a homicide from murder to manslaughter is that which causes the defendant to act out of
passion rather than reason.” People v Pennington, 323 Mich. App. 452, 465; 917 NW2d 720
(2018) (quotation marks and citation omitted). However, mere words, even those spoken during
a verbal argument, “are not usually sufficient to constitute adequate provocation.” People v
Roper, 286 Mich. App. 77, 88; 777 NW2d 483 (2009). Thus, because defendant was not entitled
to a jury instruction on voluntary manslaughter, defense counsel was not required to “advance a
meritless argument” by attempting to request a voluntary manslaughter jury instruction.
Ericksen, 288 Mich. App. at 201. Accordingly, defendant was not denied the effective assistance
of counsel.
Moreover, even if the evidence supported an instruction on voluntary manslaughter, as
with his other argument, defendant has not established that defense counsel’s failure to request
the instruction prejudiced him. “Failing to request a particular jury instruction can be a matter of
trial strategy.” People v Dunigan, 299 Mich. App. 579, 584; 831 NW2d 243 (2013). Defense
counsel chose to pursue a defense theory that he was not properly identified as the shooter, and
argued that the victim’s fiancée, who was the sole witness to the shooting, wrongfully accused
defendant of murdering the victim. Defense counsel has “ ‘wide discretion in matters of trial
strategy . . . .’ ” Id. (citation omitted). If defense counsel successfully argued that defendant was
not correctly identified as the shooter, defendant would have been acquitted, rather than
convicted of a lesser offense. Although defense counsel’s identity argument was an “all-or-
nothing” defense, the decision to proceed with an all-or-nothing defense is a legitimate trial
strategy. See People v Rone (On Second Remand), 109 Mich. App. 702, 718; 311 NW2d 835
(1981). “The fact that defense counsel’s strategy was ultimately unsuccessful does not render
him ineffective.” People v Solloway, 316 Mich. App. 174, 190; 891 NW2d 255 (2016).
Accordingly, defendant was not denied the effective assistance of counsel.
III. MISTRIAL
Defendant argues that the trial court abused its discretion by failing to grant him a
mistrial after several jurors informed the trial court that they felt intimidated by members of the
court gallery.
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“This Court reviews for an abuse of discretion the trial court’s decision to deny a
defendant’s motion for a mistrial.” People v Lane, 308 Mich. App. 38, 60; 862 NW2d 446
(2014). An abuse of discretion occurs when the trial court’s ruling “falls outside the range of
principled outcomes.” Id.
During trial, a juror sent a note to the trial court stating that he believed members of the
gallery were attempting to intimidate individual jurors. The juror stated:
[Y]esterday, I went and ate lunch in my car and I kind of felt that some of the
people that were in the gallery kind of approached the vehicle, but then they got in
their own vehicle. I didn’t feel intimidated. But I could tell that [a fellow juror]
was feeling very uneasy. And a few other people, too, was [sic] feeling uneasy,
like felt that they were being followed or snickered at.
Another juror stated that some individuals who were watching the trial from the audience
followed her down the street and stared at her when the trial court dismissed the jury for lunch.
The juror stated that several other members of the jury had similar interactions during bathroom
and lunch breaks. Upon learning that multiple members of the jury were feeling intimidated by
members of the gallery, the trial court discussed the issue with the entire jury panel:
[L]adies and gentlemen of the jury, we have received information that some of
you . . . perceived or felt untoward conduct, shall we say, by certain members of
the gallery as they have come into or come out of the courthouse.
The question that I have for all of you is, has there been anyone else who
has felt intimidated or uncomfortable [in] the presence of anyone, people who
have been in this gallery as you walk through the courthouse and come into or
go[] out of the courthouse and going to your cars. Show of hands, please.
Jurors 1, 2. We’ve got 9, 10, 11, 12, 13. And Juror 8. So we have a
significant number.
This Court has opined that a mistrial should be declared only “when the prejudicial effect
of the error cannot be removed in any other way.” People v Horn, 279 Mich. App. 31, 36; 755
NW2d 212 (2008). Indeed, “[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 NW2d 497 (1995) (citations omitted). As our Supreme
Court explains:
[N]ot every instance of misconduct . . . will require a new trial. The general
principle underlying the cases is that the misconduct must be such as to affect the
impartiality of the jury . . . . A new trial will not be granted . . . if no substantial
harm was done thereby to the party seeking a new trial . . . . The misconduct must
be such as to reasonably indicate that a fair and impartial trial was not had . . . .
[People v Miller, 482 Mich. 540, 551; 759 NW2d 850 (2008) (quotation marks
and citation omitted).]
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While interviewing the jurors regarding their experiences of perceived intimidation from
members of the gallery, the trial court asked whether any of the jurors felt as though they could
not render an impartial verdict:
And the question that I have for all of you is, is this experience that you
had such that it would interfere with your ability to render a full, fair and true
verdict based only on the evidence? Raise your hand if it does. I see no hands.
Any members of the jury have any personal fear for their own safety as a
result of this experience? And I see no hands raised.
None of the jurors felt that the perceived intimidating behaviors affected their ability to render a
fair and impartial verdict. If “there is nothing to indicate any improper bias upon the juror’s
mind, and the court cannot see that it either had, or might have had, an effect unfavorable to the
party moving for a new trial, the verdict ought not to be set aside.” People v Nick, 360 Mich.
219, 230; 103 NW2d 435 (1960) (quotation marks and citation omitted). There was no evidence
that the behaviors exhibited by the gallery members resulted in anything more than perceived
intimidation, which did not affect the jurors’ ability to function. Ultimately, because defendant
presented no evidence that the intimidating behavior exhibited toward some of the jurors
influenced the jury’s overall ability to render an impartial verdict, we cannot conclude that the
trial court abused its discretion by denying defendant’s motion for a mistrial.
IV. RESTITUTION
Defendant argues that the trial court erred by ordering him to pay a tentative $9,000 in
restitution for the victim’s funeral expenses without first confirming that the amount of
restitution was correctly calculated. The prosecution concedes that a remand is necessary, and
we agree.
In general, this Court reviews errors regarding restitution for an abuse of discretion.
People v Bell, 276 Mich. App. 342, 345; 741 NW2d 57 (2007). However, defendant failed to
preserve this issue by objecting to the trial court’s pronouncement regarding restitution at
sentencing. Consequently, this Court’s review is for plain error affecting defendant’s substantial
rights. People v Carines, 460 Mich. 750, 752-753; 597 NW2d 130 (1999). “To avoid forfeiture
under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at
763. The third aspect “generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” Id. Reversal will only be warranted where the plain
error leads to “the conviction of an actually innocent defendant,” or where an error affects the
“fairness, integrity or public reputation” of the judicial proceeding. Id. at 763 (quotation marks
and citation omitted).
Crime victims have a statutory and constitutional right to restitution. People v Gubachy,
272 Mich. App. 706, 708; 728 NW2d 891 (2006). “Restitution encompasses . . . those losses that
are easily ascertained and are a direct result of a defendant’s criminal conduct.” Id. The Crime
Victim’s Rights Act (“CVRA”), MCL 780.751 et seq., “mandates that a sentencing court order
convicted defendants to ‘make full restitution to any victim of the defendant’s course of conduct
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that gives rise to the conviction[.]’ ” People v Corbin, 312 Mich. App. 352, 359; 880 NW2d 2
(2015), quoting MCL 780.766(2) (alteration in original). MCL 780.767, which governs factors
to be considered by the trial court when determining an order of restitution, states, in relevant
part:
(1) In determining the amount of restitution to order . . . the court shall
consider the amount of the loss sustained by any victim as a result of the offense.
(2) The court may order the probation officer to obtain information
pertaining to the amounts of loss described in subsection (1). The probation
officer shall include the information collected in the presentence investigation
report or in a separate report, as the court directs.
(3) The court shall disclose to both the defendant and the prosecuting
attorney all portions of the presentence or other report pertaining to the matters
described in subsection (1).
(4) Any dispute as to the proper amount or type of restitution shall be
resolved by the court by a preponderance of the evidence. The burden of
demonstrating the amount of the loss sustained by a victim as a result of the
offense shall be on the prosecuting attorney.
A victim’s impact statement in the presentence investigation report (“PSIR”) notes that the
victim’s family sought “restitution in the amount of $9,000 for funeral costs,” but that “[n]o
documentation of this amount was provided.” The PSIR does not contain a separate restitution
recommendation.
At sentencing, the trial court appeared to accept the $9,000 as a tentative restitution
recommendation, and stated as follows:
There’s also going to be the order . . . that there be restitution in an amount
to be determined. It will be payable to the family members who cover the burial
cost of . . . [the victim]. That amount has been estimated at $9,000 for the funeral
cost. But this [c]ourt is going to wait for the determination of the actual amount
that can be validated for that purpose.
The trial court explained that the amount of restitution would be determined at a later date, and
the judgment of sentence states that the amount of restitution owed is “TBD,” or “to be
determined.” However, there is no evidence that the trial court directed the probation department
to obtain information regarding the amount of the loss incurred by the victim’s family, or that it
made any further inquiry into the matter of restitution at all. See MCL 780.767(2). Further, a
review of the record indicates that there is not an updated PSIR detailing a restitution
recommendation, a separate report regarding restitution, or any other documentation
substantiating the restitution amount. See MCL 780.767(2).
Although MCL 780.767 is “silent regarding how to determine the amount of the loss
sustained by the victim as a result of the offense,” this Court has found that “the amount [of
restitution] should be based upon the evidence.” People v Guajardo, 213 Mich. App. 198, 200;
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539 NW2d 570 (1995). The record is devoid of any evidentiary support for the $9,000
restitution amount sought by the victim’s family. The trial court erred by failing to adhere to the
statutory factors within MCL 780.767 and neglecting to make findings regarding the restitution
amount. Accordingly, and given the prosecutor’s concurrence, this case must be remanded. On
remand, the trial court must make appropriate findings regarding restitution in conformity with
MCL 780.767. The trial court must also amend the judgment of sentence to reflect the final
restitution amount imposed on defendant.
V. COURT COSTS
Defendant argues—and again the prosecution agrees—that the trial court erred by
ordering him to pay $650 in court costs without articulating on the record the factors it
considered in calculating the amount defendant owed.
Defendant failed to properly preserve this issue by challenging the imposition of court
costs at sentencing, when the costs were imposed. People v Jackson, 483 Mich. 271, 292 n 18;
769 NW2d 630 (2009). Therefore, this Court’s review is for plain error affecting defendant’s
substantial rights. Carines, 460 Mich. at 752-753.
MCL 769.1k(1)(b)(iii) grants the trial court the authority to impose court costs. Under
MCL 769.1k(1)(b)(iii), a defendant may be ordered to pay any costs that are reasonably related
to the actual costs incurred by the trial court over the course of the defendant’s trial, including:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court buildings and
facilities. [People v Konopka (On Remand), 309 Mich. App. 345, 355; 869 NW2d
651 (2015), quoting MCL 769.1k(1)(b)(iii).]
When assessing court costs, the trial court is required to “ ‘establish a factual basis’ from which
this Court can ‘determine whether the costs imposed were reasonably related to the actual costs
incurred by the trial court.’ ” People v Stevens, 318 Mich. App. 115, 121; 896 NW2d 815 (2016),
quoting Konopka, 309 Mich. App. at 359-360.
At sentencing, the trial court stated only that defendant was required to pay “[c]ourt costs
of $650.” The trial court articulated no factual basis for assessing $650 in court costs, and a
review of the record fails to indicate that a factual basis for the costs was discussed in the trial
court. “[This Court] cannot determine whether the costs imposed were reasonably related to the
actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii)” because the trial
court did not explain why it was ordering defendant to pay $650 in court costs. Konopka, 309
Mich. App. at 359-360. Since defendant has “specifically challenge[d] the lack of reasoning for
the costs imposed,” he must be “given the opportunity to challenge the reasonableness of the
costs imposed.” Id. at 360. The trial court erred by ordering defendant to pay court costs
without establishing a factual basis for imposing the costs, and defendant is entitled to a hearing
during which the trial court must articulate its rationale for imposing $650 in court costs.
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VI. CONCLUSION
We affirm defendant’s convictions and sentences, but remand to allow the trial court to
address issues regarding restitution and court costs, and for amendment of the judgment of
sentence if necessary. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Michael J. Riordan
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