People of Michigan v. Michael Anthony Franks Jr ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 18, 2023
Plaintiff-Appellee,
v No. 360690
Macomb Circuit Court
MICHAEL ANTHONY FRANKS, JR., LC No. 2021-000163-FC
Defendant-Appellant.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of voluntary manslaughter, MCL
750.321, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to 29 to 180 months’ imprisonment for voluntary
manslaughter, and 24 months’ consecutive imprisonment for felony-firearm. We affirm.
I. FACTS
On the day of the shooting, defendant and Raven Owens, defendant’s girlfriend, were in
bed with their children when the decedent, Rashan Johnson (Owens’s father), arrived to pick up
food Owens had made for him. After coming into the house, the decedent talked with Owens and
played with his grandchildren. When defendant came downstairs, the decedent and defendant
greeted each other and began discussing sports. After an hour, defendant asked the decedent if he
was taking his food to go. The decedent became agitated, and asked defendant if defendant was
trying to make him leave. Defendant went over to Owens and asked if she had set him up. After
hearing this, the decedent approached defendant within inches and told defendant not to talk to
Owens that way. The two men began arguing, and then defendant pushed the decedent, pulled out
a gun from his front hoodie pocket, and shot at the decedent seven times, hitting him with four of
the bullets—two of which entered the decedent’s body from behind. Defendant immediately left
the house, but he was apprehended three days later.
Testimony indicated that the decedent had a reputation for being peaceful, kind, and ready
to help, but he also had a reputation for being argumentative and aggressive. Defendant had a
reputation for being a quiet, peaceful, nonaggressive man who never sought conflict. Defendant
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had always been respectful of the decedent, even when the decedent was disrespectful of
defendant. Defendant and the decedent had argued on other occasions, but defendant always
defused the situation, as he was known to do. The decedent and defendant never had a physical
altercation before the shooting. Others described the interactions between defendant and the
decedent as normal and cordial.
Owens testified that the prosecution threatened her to testify in this case. She based this
allegation on the fact that the prosecution told her that her children would be forensically
interviewed without her present if she did not testify because they were the only other eyewitnesses
to the shooting.1 Owens did not want to testify but was subpoenaed to do so. There was a
concurrent Children’s Protective Services (CPS) investigation pending when Owens had this
conversation with the prosecution.
The jury ultimately found defendant guilty of the lesser charge of voluntary manslaughter
in lieu of the original charge of second-degree murder, as well as felony-firearm. This appeal
followed.
II. WITNESS INTIMIDATION
On appeal, defendant argues that his due-process rights were violated when the prosecution
threatened Owens into testifying, or, in the alternative, he was denied the effective assistance of
counsel when his defense counsel failed to further probe into the intimidation or object to Owens’s
testimony. We disagree.
“Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights.” People v Clark, 330 Mich App 392, 433; 948 NW2d 604 (2019).2 To show
plain error, a defendant must prove “1) an error occurred, 2) the error was plain, i.e., clear or
obvious, and 3) the plain error affected his substantial rights, meaning it affected the outcome of
the proceedings.” People v Jarrell, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No.
356070); slip op at 8-9. “Reversal is warranted only when plain error resulted in the conviction of
an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” People v Bennett, 290 Mich App 465, 475-476; 802 NW2d 627 (2010)
(quotation marks and citation omitted).
Unpreserved claims of ineffective assistance of counsel are reviewable for errors that are
apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A
claim of ineffective assistance of counsel presents a mixed question of fact and constitutional law.”
People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021) (quotation marks and citation
omitted). “All findings of fact are reviewed for clear error, while the legal questions are reviewed
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Owens did not want her children interviewed without her present given that they were only eight
and four years old, respectively, at the time.
2
We use “prosecutorial misconduct” as a term of art, not suggesting that the prosecution’s conduct
was illegal or violative of the rules of professional conduct. See People v Cooper, 309 Mich App
74, 87-88; 867 NW2d 452 (2015).
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de novo.” Id. (quotation marks and citation omitted). Clear error exists where the reviewing court
is left with a “definite and firm conviction” that the lower court made a mistake. Id. (quotation
marks and citation omitted).
Generally, issues pertaining to witness intimidation are analyzed under the framework of
prosecutorial misconduct, and the ultimate “test for prosecutorial misconduct is whether, after
examining the prosecutor’s statements and actions in context, the defendant was denied a fair and
impartial trial.” People v Hill, 257 Mich App 126, 135; 667 NW2d 78 (2003). “The Michigan
Supreme Court and this Court have strongly condemned prosecutorial intimidation of witnesses.”
Id. “Attempts by the prosecution to intimidate witnesses from testifying, if successful, amount to
a denial of a defendant’s constitutional right to due process of law.” Id. Remand for an evidentiary
hearing can be ordered where a testimonial record must be developed to support a defendant’s
claim of prosecutorial misconduct. Id. at 136.
Here, defendant claims that the prosecution improperly threatened Owens into testifying
against defendant. During cross-examination by defense counsel, Owens testified as follows:
Q. Did the prosecutor force you to come in to court today?
A. I was subpoenaed.
Q. Did you hire a lawyer --
A. I did.
Q. -- to help you through this process?
A. I did.
***
Q. Did the prosecution threaten you to testify in this matter?
A. Yes.
Immediately after that exchange, the prosecution questioned Owens on re-direct
examination about the circumstances of the purported threat:
Q. And you agree, that we’ve always stressed to you to be truthful during
your testimony, right?
A. Um-huh. Yes.
Q. Okay. So, this threat that you’re talking about, that counsel asked you
about -- that’s the word he used, threat to testify -- did I, or Ms. Fedorak, ever say
you must testify or this is going to happen, or something like that?
A. You guys brought my kids in to it, yes.
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Q. Okay. Well, to be clear, you’re our only adult witness in this case; you
understand that?
A. I understand.
Q. Okay. And the kids were witnesses, themselves, to what happened; you
agree with that, they were there?
A. Yes, they were.
Q. Okay. And you expressed some reluctance, you agree, to participate in
this process, right?
A. Because, I was subpoenaed.
***
Q. Okay. And the -- what you said about bringing kids in to it, there was a
-- a CPS investigation; it’s fair to say?
A. Yes.
Q. They got involved, and -- and when you say bringing kids in to it, having
a forensic interview done with the kids, having them speak to a professional about
what happened that day, that’s what you are upset about, right?
A. Yes, because my kids were only four and eight, and then you -- you guys
were saying that I couldn’t be in a room with my -- my kids. My daughter was only
four at the time.
Defendant argues that these circumstances suggested to Owens that if she did not testify,
the prosecution would advocate for removal of her children in the CPS case. However, Owens’s
testimony does not suggest that conclusion, nor did Owens testify that she believed that the
prosecution would attempt to advocate for removal of her children if she did not testify. Rather,
at worst, Owens’s testimony suggests that the prosecution “threatened” her with a possible
interview of her children without her present. Importantly, the prosecution seemingly would have
had no other choice but to interview Owens’s children if she refused to testify because the children
were the only other eyewitnesses to the shooting. Thus, the suggestion of interviewing Owens’s
children was not a manipulative threat; rather, it was the prosecution informing Owens of its only
alternative course of action if Owens refused to testify. The prosecution is generally permitted to
inform a prospective witness about the consequences of failure to cooperate with the legal process.
Compare People v Layher, 238 Mich App 573, 587; 607 NW2d 91 (1999) (“[A] prosecutor may
inform a witness that false testimony could result in a perjury charge.”).
Additionally, the prosecution’s statements did not influence whether Owens was going to
testify in this case because she was subpoenaed to testify, and there is nothing to suggest that she
would have disregarded that subpoena. Nor did the prosecution’s reference to interviewing
Owens’s children include a threat for Owens to testify in a certain manner or fabricate her
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testimony. In fact, the prosecution asked Owens if he and the other prosecutor had told her to
testify truthfully, and she affirmed that they had. Based on the record, it does not appear that the
prosecution’s mention of Owens’s children changed whether she was going to testify, or the
content of her testimony. Accordingly, there is nothing tending to show that defendant was denied
a fair and impartial trial. This is particularly true in light of the fact that Owens had her own
counsel to assist her with the proceedings. See People v Clark, 172 Mich App 407, 414; 432
NW2d 726 (1988) (declining to award relief for the alleged prosecutorial witness intimidation
because, in part, “the court took an additional protective measure of assigning counsel to [the
witness] and allowing her to fully consult with counsel regarding her testimony”). Therefore, no
plain error occurred.
We also conclude that defendant was not denied the effective assistance of counsel. A
criminal defendant has the right to a fair trial, which includes the right to effective assistance of
counsel. Isrow, 339 Mich App at 531. “Trial counsel is ineffective when counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Id. (quotation marks and citation omitted). “Trial counsel’s
performance is presumed to be effective, and defendant has the heavy burden of proving
otherwise.” Id. “In order to obtain a new trial, a defendant must show 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). “If counsel’s strategy is
reasonable, then his or her performance was not deficient.” Isrow, 339 Mich App at 532 (quotation
marks and citation omitted). “A deficiency prejudices a defendant when there is a reasonable
probability that but for trial counsel’s errors, the verdict would have been different.” Id.
“[C]ounsel is not ineffective for failing to raise meritless or futile objections.” People v Putman,
309 Mich App 240, 245; 870 NW2d 593 (2015).
Defendant contends that defense counsel’s performance was deficient because he did not
probe Owens further about the alleged threat. However, the record indicates the opposite. Defense
counsel ended his questioning of Owens once she testified that the prosecution had threatened her
to testify. The circumstances of that purported threat, however, were relatively benign, as the
prosecution elicited on re-direct examination. In particular, Owens was only “threatened” by a
possible forensic interview of her children without her present, or perhaps by the subpoena itself.
Thus, eliciting additional information from Owens about the alleged threat simply diminished its
relevance. Defense counsel can hardly be faulted for not doing so himself. His decision not to
question Owens further about the alleged threat is presumed to be a reasonable, strategic decision,
and defendant has the burden of proving otherwise. Isrow, 339 Mich App at 531-532.
Defendant has not offered any proof that there was useful information defense counsel
could have elicited from Owens had he questioned her further. See People v Haynes, 338 Mich
App 392, 430; 980 NW2d 66 (2021) (holding that the defendant has the burden of proof to establish
that the testimony defense counsel allegedly failed to elicit would have benefited the defendant);
People v Pratt, 254 Mich App 425, 430; 656 NW2d 866 (2002) (holding that there was no error
apparent on the record because the defendant failed to show that the testimony his attorney
allegedly failed to elicit was beneficial to him). Since defendant has not made an offer of proof
showing that there was more information about the alleged threat that defense counsel could have
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elicited from Owens to benefit the defense, defendant has failed to show that defense counsel
performed deficiently.
Defendant also contends that defense counsel should have placed an objection on the record
pertaining to the intimidation Owens allegedly sustained from the prosecution. As discussed
above, however, it does not appear that the prosecution improperly intimidated or threatened
Owens or caused her to alter her testimony. Since no error is apparent on the record, defense
counsel was not deficient for failing to object on the basis of the alleged intimidation. See Putman,
309 Mich App at 245 (“[C]ounsel is not ineffective for failing to raise meritless or futile
objections.”). Accordingly, defendant has failed to show that defense counsel’s performance was
deficient in this regard as well.
But even if defense counsel’s performance was deficient, defendant was not prejudiced
because, as discussed above, it does not appear the prosecution’s discussion of Owens’s children
changed whether she was going to testify, or the content of her testimony. The prosecution’s
reference to interviewing Owens’s children did not include a threat for Owens to testify in a certain
manner, or a threat that Owens needed to change or fabricate her testimony. Therefore, even if
defense counsel’s performance was deficient, it does not appear that defendant was prejudiced
thereby. Thus, defendant has not shown that there is a reasonable probability that, but for defense
counsel’s alleged errors, the verdict would have been different. Accordingly, defendant has failed
to show he was denied his constitutional right to the effective assistance of counsel.
III. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence for the jury to convict him of
voluntary manslaughter because he acted in self-defense. We disagree.
“Challenges to the sufficiency of the evidence are reviewed de novo.” People v Xun Wang,
505 Mich 239, 251; 952 NW2d 334 (2020). “In reviewing the sufficiency of the evidence, this
Court must view the evidence—whether direct or circumstantial—in a light most favorable to the
prosecutor and determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.” People v Kenny, 332 Mich App 394, 402-403;
956 NW2d 562 (2020). “[A] reviewing court is required to draw all reasonable inferences and
make credibility choices in support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917
NW2d 559 (2018) (cleaned up).
“In a criminal proceeding, the defendant has a constitutional right to have the prosecution
prove his or her guilt beyond a reasonable doubt . . . .” People v Likine, 492 Mich 367, 407; 823
NW2d 50 (2012). Defendant was charged with second-degree murder, but convicted of voluntary
manslaughter. “A defendant properly convicted of voluntary manslaughter is a person who has
acted out of a temporary excitement induced by an adequate provocation and not from the
deliberation and reflection that marks the crime of murder.” People v Mendoza, 468 Mich 527,
535; 664 NW2d 685 (2003) (quotation marks and citation omitted). “To prove that a defendant
committed 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 his passions.” People v Mitchell, 301 Mich App 282, 286; 835
NW2d 615 (2013) (quotation marks and citations omitted). “However, provocation is not an
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element of voluntary manslaughter; rather, it is a circumstance that negates the presence of
malice.” Id.Defendant contends that there was insufficient evidence to convict him of voluntary
manslaughter because he was acting in self-defense. “At common law, the affirmative defense of
self-defense justifies otherwise punishable criminal conduct, usually the killing of another person,
if the defendant honestly and reasonably believes his life is in imminent danger or that there is a
threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm
to himself.” People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010) (quotation marks and
citation omitted). “In general, a defendant does not act in justifiable self-defense when he or she
uses excessive force or when the defendant is the initial aggressor.” People v Guajardo, 300 Mich
App 26, 35; 832 NW2d 409 (2013). “With the enactment of the Self–Defense Act (SDA), MCL
780.971 et seq., the Legislature codified the circumstances in which a person may use deadly force
in self-defense or in defense of another person without having the duty to retreat.” Dupree, 486
Mich at 708. “Specifically, the SDA modified the common law’s duty to retreat that was imposed
on individuals who were attacked outside their own home or were not subjected to a sudden, fierce,
and violent attack.” Guajardo, 300 Mich App at 35 (quotation marks and citation omitted). MCL
780.972(1) of the SDA provides, in relevant part:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat if . . .
(a) The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent death of or imminent great bodily harm
to himself or herself or to another individual.
“[O]nce a defendant satisfies the initial burden of producing some evidence from which a
jury could conclude that the elements necessary to establish a prima facie defense of self-defense
exist, the prosecution bears the burden of disproving the affirmative defense of self-defense
beyond a reasonable doubt.” People v Rajput, 505 Mich 7, 11; 949 NW2d 32 (2020) (quotation
marks and citation omitted). To determine whether the jury properly found that the prosecution
disproved defendant’s claim of self-defense beyond a reasonable doubt, it is necessary to consider
whether “the circumstances justified his actions.” See Dupree, 486 Mich at 707 (quotation marks
and citation omitted).
The circumstances leading up to the shooting were such that a rational trier of fact could
find beyond a reasonable doubt that defendant was not justified in shooting the decedent. Although
the decedent had a reputation for arguing, he had never physically threatened or attacked
defendant. Defendant also knew that the decedent liked to “run the show” and control others, so
his attempt at controlling defendant’s behavior by aggressively telling him how not to speak to
Owens also was typical behavior for the decedent. Indeed, the decedent once got chest-to-chest
with defendant in an argument, and another time yelled so loudly at defendant that Owens came
to see what was going on, and one of her children hit the decedent and told him to leave defendant
alone. Defendant walked away from the first encounter to defuse the situation, and defendant
remained calm and rested on the couch during the second. It seems unlikely that someone who
was afraid of the decedent would casually lay on the couch while being yelled at by the decedent.
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Because this type of behavior was common from the decedent and had never resulted in anyone
being harmed, it would have been reasonable for the jury to find that defendant was unlikely to
have been honestly and reasonably afraid for his life on the day in question.
Furthermore, before the shooting took place, there was no testimony that the decedent
verbally threatened defendant or physically attacked him. Rather, it was defendant who shoved
the decedent before pulling out his gun and shooting at the decedent seven times, four of which hit
the decedent and caused his death. Two of the shots hit the decedent in the back, which indicates
that the decedent may have been turning from defendant or falling to the ground while defendant
was still shooting. In other words, there was nothing more than a heated discussion—which was
normal—before defendant shoved the decedent, pulled out his gun, and started firing multiple
times. The fact that defendant fired the gun seven times, and shot the decedent four times, two of
which went into the decedent’s back, suggests that this shooting was not the product of genuine
self-defense. While it is true that the decedent was bigger than defendant and had a reputation for
being aggressive, that alone is not enough to justify the use of deadly force in self-defense,
especially since the decedent did not pull out his gun at any point during the argument.
Moreover, defendant’s claim that he was honestly and reasonably afraid of the decedent
imminently killing or greatly harming him was discredited by other circumstances surrounding the
shooting. The decedent came to defendant’s home to pick up some food that evening. When the
decedent arrived, he talked with Owens and played with his grandchildren. When defendant came
downstairs, he greeted the decedent normally, and the two began discussing sports. These were
normal circumstances. The situation became tense after the decedent interpreted defendant’s
statements as disrespectful of himself and Owens. But as noted, this was not the first time that a
situation had become tense between the decedent and defendant. Under these circumstances, a
rational trier of fact could find beyond a reasonable doubt that defendant overreacted, and was not
justified in shooting the decedent because there was no imminent threat of great bodily harm or
death.
We also note that in contrast to the testimony about the decedent being argumentative and
aggressive, some testimony presented at trial described the decedent as peaceful, adverse to
confrontation, someone who would break up a fight if it began, respected in the community, big-
hearted, smart, and the best father in the world. Kina Sanford, a long-time friend of the decedent,
never saw the decedent assault anyone or reach for his gun unless he was at the shooting range.
Nadia Morris never saw the decedent physically confront defendant, and opined that there was
nothing unusual or adverse about their interactions. In light of this conflicting testimony about the
decedent’s character, a rational trier of fact could have found that the decedent was generally a
peaceful, nonviolent person whom defendant would not have honestly and reasonably feared
would kill or cause greatly bodily harm.
Finally, we emphasize our obligation to draw all reasonable inferences in the light most
favorable to the prosecution, and make credibility findings in support of the jury’s verdict. See
Kenny, 332 Mich App at 402-403. Accordingly, we are obligated to conclude that the decedent
was generally peaceful, and was unlikely to have given defendant a reason to believe that the
decedent was going to kill or cause great bodily harm to him. Based on the record developed at
trial, the evidence was sufficient to show that the prosecution disproved defendant’s claim of self-
defense beyond a reasonable doubt.
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IV. CONCLUSION
Defendant has not established any errors warranting relief. We affirm.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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