People of Michigan v. Leroy James Hamm III ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 14, 2023
Plaintiff-Appellee,
v Nos. 358789; 364433
Gogebic Circuit Court
LEROY JAMES HAMM III, LC No. 2020-000230-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and GARRETT and MALDONADO, JJ.
PER CURIAM.
These consolidated1 appeals stem from an incident in which defendant drunkenly waved a
gun around in the presence of friends and family. A jury convicted defendant of one count of
being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, one count of being
a felon in possession of ammunition (felon-in-possession of ammunition), MCL 750.224f(6), two
counts of assault with a dangerous weapon (felonious assault), MCL 750.82, and one count of
possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 4 to 30
years’ imprisonment for felon-in-possession, 4 to 30 years’ imprisonment for felon-in-possession
of ammunition, 4 to 15 years’ imprisonment for each felonious assault conviction, and two years’
imprisonment for felony-firearm. The sentence for felony-firearm was to run consecutive to one
count of felonious assault; otherwise, the prison terms were to be served concurrently.2 In Docket
1
People v Hamm, unpublished order of the Court of Appeals, entered January 17, 2023 (Docket
Nos. 358789 and 364433).
2
Because of an error in designating with which sentence the felony-firearm sentence should run
consecutive at the original sentencing hearing conducted on October 4, 2022, defendant was
resentenced on December 13, 2022. The trial court then imposed sentences of the same length,
but ordered that defendant’s felony-firearm sentence run consecutive to and preceding only one of
the felonious assault sentences.
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No. 358789,3 defendant raises claims of a speedy trial violation, prosecutorial misconduct, and
ineffective assistance of counsel. In Docket No. 364433,4 defendant challenges the scoring of his
sentencing guidelines. In Docket No. 358789, we vacate defendant’s conviction and remand for a
new trial. Docket No. 364433 is dismissed as moot.
I. BACKGROUND
On October 30, 2020, defendant was at his home with his mother, Mary Conley; with
Conley’s boyfriend, Dennis Borseth; and with two of his friends, Jaccob Stigsell and James
Schaus. Much of what happened that night is undisputed. Defendant and Borseth were both
intoxicated when Borseth removed his gun and showed it to Stigsell. Defendant then took the gun
away from Borseth, testifying that Borseth had pointed the gun at defendant. Borseth apparently
had a history of behaving recklessly with his gun,5 and defendant testified that he feared for his
life. Stigsell testified that, after disarming Borseth, defendant waved the gun around while
belligerently rambling, and while he insisted that defendant’s behavior was nonthreatening,
Stigsell acknowledged that defendant pointed the gun at both Conley and Schaus. Defendant
denied having carelessly waved the gun and insisted that if he had pointed the gun at anybody he
did so accidentally. Defendant eventually gave the gun to Conley who hid it in the bathroom.
It is undisputed that Borseth was injured during this encounter; however, the circumstances
surrounding the injury were heavily disputed, and Borseth did not testify. It is undisputed that
Boresth had a wound on his forehead that bled profusely and required stitches. Sergeant Sterbenz
testified that the wound was shaped like “a half-circle” and opined that it was consistent with the
shape of the gun’s barrel. Moreover, Sergeant Sterbenz testified that there was a red substance on
the end of the barrel that appeared to be blood, suggesting that defendant might have struck Borseth
with the gun.6 Schaus testified that he was not sure how Borseth received this wound but believed
he had fallen down in the kitchen. Defendant was likewise uncertain and likewise believed Borseth
had fallen. Notably, no charges were filed alleging Borseth as a victim.
Defendant was convicted as described above, and these appeals followed.
II. SPEEDY TRIAL
Defendant first argues that he was denied his constitutional right to a speedy trial. We
disagree.
3
Docket No. 358789 arises from the October 4, 2021 judgment of sentence.
4
Docket No. 364433 arises from the December 13, 2022 judgment of sentence.
5
There was testimony at trial regarding an incident during which Borseth allegedly fired his gun
at someone, nearly hitting them.
6
It does not appear as though any tests were conducted on this substance to confirm that it was
blood or that it belonged to Borseth; however, defendant does not seem to dispute that this
substance was, in fact, Borseth’s blood.
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We review claims of error involving a defendant’s right to a speedy trial de novo as a
question of constitutional law. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006).
The right to a speedy trial in criminal prosecutions is guaranteed by both the federal and
state constitutions. Id. at 261, citing US Const, Am VI, and Const 1963, art 1, § 20. Michigan
courts apply the four-part test from Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d
101 (1972), to determine whether a defendant’s constitutional right to a speedy trial has been
violated. Williams, 475 Mich at 261. The Barker test requires this Court to balance four factors:
“(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4)
the prejudice to the defendant.” Id. at 261-262. No single factor is “either a necessary or sufficient
condition to” a meritorious speedy-trial claim. Barker, 407 US at 533. Rather, courts must
“engage in a difficult and sensitive balancing process.” Id.While defendant did assert his right to a speedy trial and the delay was attributable to the
prosecution, defendant has not established a violation of his speedy trial right because the delay
was not particularly long and no harm was caused to defendant’s case.
A. LENGTH OF DELAY
When determining the length of the delay for purposes of the first Barker factor, the
relevant time period begins at the time of the defendant’s arrest. Williams, 475 Mich at 261.
Defendant was arrested on the night of this incident, October 30, 2020, just shy of 10 months
before his trial began in August 2021. “[T]here is no set number of days between a defendant’s
arrest and trial that is determinative of a speedy trial claim,” People v Waclawski, 286 Mich App
634, 665; 780 NW2d 321 (2009), but further consideration of the issue is required after a delay of
at least six months, People v Daniel, 207 Mich App 47, 51; 523 NW2d 830 (1994).
B. REASON FOR DELAY
When “assessing the reasons for delay, this Court must examine whether each period of
delay is attributable to the defendant or the prosecution.” Waclawski, 286 Mich App at 666. When
the reason for a delay cannot be discerned from the record, that period should be attributed to the
prosecution. Id. “Scheduling delays and docket congestion are also charged against the
prosecution,” but “delays inherent in the court system, e.g., docket congestion, . . . are given a
neutral tint and are assigned only minimal weight in determining whether a defendant was denied
a speedy trial.” Id. (quotation marks and citations omitted).
Within days of defendant’s circuit court arraignment in December 2020, defendant’s trial
was tentatively scheduled to take place in June 2021 if another trial did not occur at that time, with
a firm date of December 7, 2021. The firm trial date was later moved forward to October 12, 2021.
Defendant rejected a plea offer on April 20, 2021. At that time, the court noted that the existing
trial dates may be subject to change because the COVID-19 pandemic was affecting the court’s
scheduling, though priority was being given to cases involving incarcerated defendants. An order
entered the next day set defendant’s trial for October 13, 2021, and reiterated that defendant’s case
was designated as the “back-up trial” for June 16, 2021. Defendant filed a motion for speedy trial
and personal recognizance on May 18, 2021, which was heard on June 8, 2021. Although the trial
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court denied defendant’s motion, it again moved defendant’s trial forward, scheduling it to begin
August 25, 2021. As it had before, the trial court explained that the COVID-19 pandemic was
putting constraints on the judicial system and the court was doing its best to afford defendant the
earliest trial date possible. Defendant’s trial began on August 25, 2021.
In sum, docket congestion was the cause of the delay in this case. As noted, while this is
technically attributed to the prosecution, this reason is “given a neutral tint,” and we afford it “only
minimal weight” with respect to our analysis. Waclawski, 284 Mich App at 666.
C. ASSERTION OF THE RIGHT
Concerning a defendant’s assertion of his right to a speedy trial, the United States Supreme
Court observed that assertion of the right is entitled to strong evidentiary weight, as “[t]he more
serious the deprivation, the more likely a defendant is to complain.” Barker, 407 US at 531. “The
strength of [a defendant’s] efforts will be affected by the length of the delay, to some extent by the
reason for the delay, and most particularly by the personal prejudice, which is not always readily
identifiable, that he experiences.” Id. The record reveals at least two instances in which defendant
asserted his right to a speedy trial. First, defense counsel’s written appearance, which was filed
on November 6, 2020, included a request for a speedy trial. We are not persuaded by the
prosecution’s contention that “[b]oilerplate language in an appearance is not the same as” a formal
speedy-trial demand. The only authority cited for this proposition is a 1971 case in which the
“[d]efendant’s attorney at the motion hearing represented that Rogers had sent letters demanding
the early trial of the case; however, no proofs were received as to the accuracy of the allegations.”
People v Rogers, 35 Mich App 547, 551; 192 NW2d 640 (1971). This case is neither binding7 nor
on point; the decisive fact was that there was no evidence that a demand was actually made, not
the informal nature of the alleged demand. Defendant also formally moved for a speedy trial on
May 18, 2021, which resulted in defendant’s trial being moved forward by seven weeks. This
factor weighs in favor of defendant’s claim of error.
D. PREJUDICE
Defendant has not met his burden to establish prejudice arising from the 10-month delay
between the arrest and trial.
Regarding the final Barker factor, Michigan recognizes “two types of prejudice which a
defendant may experience, that is, prejudice to his person and prejudice to the defense.” Williams,
475 Mich at 264 (quotation marks and citation omitted). Prejudice to the person occurs from
“pretrial incarceration leading to anxiety and concern.” People v Collins, 388 Mich 680, 694; 202
NW2d 769 (1972). Prejudice to the defense is the more serious concern. Barker, 407 US at 532;
Williams, 475 Mich at 264. The reason for this understanding is straightforward: when pretrial
delays inhibit a defendant’s defense, it “skews the fairness of the entire system.” Barker, 407 US
7“Published opinions of this Court that were issued before November 1, 1990 are not binding, but
they may be considered for their persuasive value.” People v Urbanski, ___ Mich App ___, ___
n 5; ___ NW2d ___ (2023) (Docket No. 359011); slip op at 9 n 5, citing MCR 7.215(J)(1).
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at 532; Williams, 475 Mich at 264 (quotation marks and citation omitted). By way of example,
the defense may be impaired by the death or disappearance of a witness or the fading of memory
that naturally occurs over time. Barker, 407 US at 532. Prejudice is presumed after a delay of at
least 18 months. Williams, 475 Mich at 261. Because the delay in this case was not presumptively
prejudicial, defendant bears the burden of proving that he was prejudiced by the delay, Daniel, 207
Mich App at 51.
Concerning personal prejudice, defendant emphasizes that he was unable to properly treat
his mental health during his pretrial incarceration. Defendant raised this concern at the time of his
circuit court arraignment, noting that his incarceration was interrupting his prescription medication
regimen. Two months later, defendant formally moved for a reduction of his bond requirements
and asserted that if he was released, he would continue his mental health counseling. In his motion
for a speedy trial, defendant again asserted that he was unable to continue his mental health
treatment while in jail. We view this theory of personal prejudice with skepticism because there
is little reason to believe that defendant would have properly addressed his mental health but for
the pretrial incarceration. Defendant admitted that he was not compliant with his medication, and
at the time of his arrest, in addition to being intoxicated, he had been awake for several days straight
because he had been abusing methamphetamine. Defendant’s claim that he would take his mental
health seriously had he been released is, therefore, dubious. While ordinary stress and anxiety are
inherent to pretrial incarceration, we conclude that defendant has not demonstrated he suffered
additional prejudice in terms of his mental health treatment due to the delay in commencing his
trial.
Turning to prejudice to his defense, defendant contends that the delay in this case affected
most of the witnesses’ ability to accurately recall the events at issue and resulted in Stigsell
testifying at trial in jail-issued clothing. Defendant’s reference to his own inability to recall certain
details cannot be fairly attributed to the 10-month pretrial delay. Defendant admitted that he could
not remember everything about the night in question because of his intoxication, and he also had
been awake for several days straight due to methamphetamine abuse. There is no reason to believe
that defendant’s recollection would have been any better had the case been tried earlier. Conley
and Schaus also claimed gaps in their memories. More specifically, Conley was unable to
remember the date of a prior incident during which Borseth allegedly shot his gun in the direction
of another person. She testified that the shooting occurred sometime over the summer of 2020, a
few months before the incident at issue in this case. The earlier shooting was relevant only to
defendant’s perception of the danger Borseth presented, and because it was apparent that the
shooting took place before October 2020, Conley’s uncertainty regarding the date was
insignificant. Schaus was unable to fully recall the sequence of events and their relation to his
phone calls to the police, and this helped the prosecutor argue that defendant possessed the gun for
longer than was reasonable for purposes of self-defense. However, the prosecution argued that the
timing of the phone calls suggested defendant had the gun for up to five or six minutes, and
considering Conley’s opinion that defendant had the gun “a good ten, fifteen minutes,” Schaus’s
confusion about the timing of his phone calls was immaterial.
Lastly, defendant contends that the delay prejudiced his defense because Stigsell’s
favorable testimony was likely discounted by the jury due to Stigsell’s own incarceration at the
time of trial. According to defendant, had the trial occurred even two weeks earlier, Stigsell would
not have been in jail and would not have testified while wearing jail-issued clothing. Assuming
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this is true, defendant still has not demonstrated that he was unfairly prejudiced. Defendant makes
much of the negative inferences the jury might have reached because of Stigsell’s appearance as a
criminal but completely fails to appreciate that Stigsell’s credibility would always have been
questionable because of his friendship with defendant and obvious reluctance to provide
incriminating testimony. Moreover, because Stigsell was called by the prosecution and offered
testimony that was both incriminating and exculpatory, any poor assessment of Stigsell’s
credibility was just as harmful to the prosecution as it was to defendant.
E. BALANCING THE FACTORS
Balancing these factors, defendant has not demonstrated that his convictions should be
vacated on the basis of his right to a speedy trial. Convictions following delays far greater than
the 10-month delay in this case have been consistently affirmed by this Court and the Michigan
Supreme Court. See, e.g., Williams, 475 Mich 262-265 (concluding that speedy trial right was not
violated by 19-month delay); Waclawski, 286 Mich App at 665-669 (affirming convictions after
24-month delay); People v Cain, 238 Mich App 95, 112-113; 605 NW2d 28 (1999) (citing several
cases with delays of multiple years). The reason for the delay is viewed with a largely neutral tint,
and the trial court seemingly undertook its best efforts to try defendant as promptly as possible,
moving defendant’s trial date forward each time it had an opportunity to do so. Although
defendant formally asserted his right to a speedy trial, this alone is not decisive. Defendant has
not established that he was personally prejudiced beyond ordinary pretrial anxiety, and we are not
persuaded that the 10-month delay caused any harm to his defense.
On balance, defendant has not established a violation of his speedy-trial right.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, defendant argues that he was denied the effective assistance of counsel when his
attorney failed to request jury instructions that would support the defense theories, namely, M
Crim JI 7.20 (burden of proof for self-defense) and M Crim JI 7.3a (accident as a defense to
specific-intent crime). We agree.
“Whether defendant was denied the effective assistance of counsel presents a mixed
question of fact and constitutional law.” People v Muhammad, 326 Mich App 40, 63; 931 NW2d
20 (2018). “Any findings of fact are reviewed for clear error, while the legal questions are
reviewed de novo.” People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Defendant
did not preserve this issue for review by moving for a new trial or evidentiary hearing before the
trial court, People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012), or filing with this Court
a motion to remand for that purpose, People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d
437 (2020). Therefore, our review is limited to mistakes apparent on the record. Head, 323 Mich
App at 539.
Claims of ineffective assistance are generally analyzed under the two-part test announced
in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), which requires
the defendant 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
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136 (2012). Under the first prong, we presume that counsel provided constitutionally effective
assistance and acted pursuant to a sound trial strategy. Abcumby-Blair, 335 Mich App at 236-237.
“This standard requires a reviewing court to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as they did.” Id. at 237 (quotation marks and
citations omitted). Under the second prong, “[a] reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Muhammad, 326 Mich App at 63 (quotation marks and
citation omitted). The defendant also bears the burden of establishing the factual basis for his or
her claim. Id.A. FELON-IN-POSSESSION COUNTS
Defendant has established a valid claim of ineffective assistance of counsel with respect to
defendant’s convictions for felon-in-possession and felon-in-possession of ammunition because
defense counsel failed to request an instruction regarding the burden of proof for self-defense.
When a defendant claims to have been denied the effective assistance of counsel on the
basis of omitted jury instructions, this Court should first consider whether the instruction was
legally applicable and factually warranted in the case. People v Leffew, 508 Mich 625, 638, 643;
975 NW2d 896 (2022). “Jury instructions must include all the elements of the charged offense
and must not exclude material issues, defenses, and theories if the evidence supports them.”
People v Spaulding, 332 Mich App 638, 653; 957 NW2d 843 (2020) (quotation marks and citation
omitted).
M Crim JI 7.20 provides: “The defendant does not have to prove that [he / she] acted in
self-defense. Instead, the prosecutor must prove beyond a reasonable doubt that the defendant did
not act in self-defense.” In this case, the trial court determined that instructions on self-defense
were appropriate. The final jury instructions, therefore, included the standard instruction regarding
the use of nondeadly force in self-defense. See M Crim JI 7.22. In the context of that instruction,
the court advised the jury that if defendant acted in lawful self-defense, his actions were justified
and he was not guilty of any of the charged offenses. The final instructions also included M Crim
JI 7.25, which addressed self-defense as a defense to the felon-in-possession and felon-in-
possession of ammunition charges. However, the final instructions were silent as to who had the
burden of proof regarding self-defense. To the extent that there was a factual basis for the self-
defense instructions, the jury should have likewise been instructed that the prosecution had the
burden of proving beyond a reasonable doubt that defendant did not act in self-defense, consistent
with M Crim JI 7.20. See Leffew, 508 Mich at 649 (explaining that had defense-of-others
instruction been given, it would have been accompanied by instruction that the prosecution has the
burden of disproving the affirmative defense beyond a reasonable doubt).
The prosecution disputes whether any instructions regarding self-defense were warranted
because nothing in the record suggests that defendant acted in self-defense when he pointed the
gun at Conley and Schaus. However, this argument is only relevant with respect to the felonious
assault charges and the felony-firearm count predicated on Count IV (felonious assault of Schaus).
Self-defense can clearly apply to felonious assault charges, People v Ogilvie, 341 Mich App 28,
32, 40; 989 NW2d 250 (2022), but an instruction on that defense is appropriate only when there is
at least some evidence supporting the self-defense theory. See Leffew, 508 Mich at 644. There
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was no evidence that defendant pointed the gun at Conley or Schaus in order to defend himself
against them or that either victim acted in a manner that would justify the use of nondeadly force
in self-defense. Rather, the critical issue with respect to the felonious assault charges was whether
defendant pointed the gun at them with the requisite intent. Because a successful self-defense
theory “necessarily requires a finding that the defendant acted intentionally,” People v Dupree,
486 Mich 693, 707; 788 NW2d 399 (2010) (quotation marks and citation omitted), and defendant
himself was adamant that he did not intentionally aim the gun at either victim, the adequacy of the
self-defense instructions is irrelevant as it relates to the felonious assault charges and the
corresponding felony-firearm charge. Nonetheless, defendant clearly raised a claim of self-
defense claim with respect to the felon-in-possession and felon-in-possession of ammunition
charges, and the testimony concerning defendant’s belief that Borseth was pointing the gun at him
provided a sufficient factual basis to instruct the jury regarding self-defense. Leffew, 508 Mich at
644. Because self-defense was properly before the jury relative to those charges, the jury should
have been instructed that the prosecution had the burden of proving beyond a reasonable doubt
that defendant did not act in self-defense, consistent with M Crim JI 7.20. See id. at 649.
Although defense counsel in this case secured the inclusion of instructions regarding the
substantive requirements of a self-defense claim, she did not ask the court to instruct the jury
regarding the burden of proof, and the applicable burden of proof was not directly addressed by
the instructions provided. The jury was instructed that “[e]very crime is made up of parts called
elements,” and the prosecution was obligated to prove each element beyond a reasonable doubt.
With respect to the possession charges, the court explained:
The defendant is charged with possession of firearm in Count l and
possession of ammunition in Count 2, after having been convicted of a specified
felony. To prove this charge, the prosecution must prove each of the following
elements beyond a reasonable doubt. First, that the defendant possessed, used,
received, or carried a firearm and ammunition in this state. In this case, the parties
do not dispute that the defendant has been convicted of a previous specified felony.
[Emphasis added.]
Thus, the court’s discussion of the burden of proof was tied to the elements of the offenses and
offered little guidance concerning who bore the burden of proof concerning defenses. The self-
defense instructions made it clear that defendant would not be guilty of either possession charge if
he was acting in lawful self-defense, but they did not convey to the jury that the absence of self-
defense was effectively an essential element of the possession charges that the prosecution had to
prove beyond a reasonable doubt. Moreover, the inclusion of M Crim JI 7.20 in the final
instructions would have been nothing but beneficial to defendant’s case, such that there was no
legitimate strategic reason to refrain from requesting it. Therefore, defense counsel’s failure to
request M Crim JI 7.20 was objectively unreasonable.
However, to obtain appellate relief, defendant must also prove that “but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” Trakhtenberg, 493 Mich at 51. Every trial witness who observed the incident opined
that defendant took possession of the gun because he feared Borseth would shoot him, though the
reasonableness of that belief was certainly in question. Even the prosecutor conceded in closing
arguments that defendant may have been acting in self-defense when he disarmed Borseth. The
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critical question before the jury was whether defendant’s continued possession of the gun was
justifiable self-defense. As to that question, Stigsell thought defendant was still holding the gun
when Stigsell left the house a minute or two after summoning Schaus to intervene. Schaus testified
that defendant held the gun for approximately one to three minutes, during which time defendant
was looking for a place from which Borseth would not be able to retrieve the gun. According to
Sergeant Sterbenz, at least four minutes elapsed between the beginning of Schaus’s phone call and
the point at which Sterbenz returned downstairs to try to defuse the situation and inquire about the
gun’s location. Conley claimed that defendant had the gun for perhaps 10 or 15 minutes. She
recalled that defendant went from room-to-room trying to find a place to get rid of the gun and that
he was reluctant to give it to her because he feared she would give it back to Borseth. Defendant
opined he was holding the gun for approximately one or two minutes. He explained that he
panicked, did not know what to do with the gun after he took it, and was initially unwilling to turn
it over to Conley because he feared Borseth would overpower her and get the gun back. He only
did so after she agreed to hide it and, even then, defendant insisted on blocking Borseth’s view of
Conley’s destination as she left the room with the gun.
The jury might have believed that none of the eyewitnesses—defendant’s friends, mother,
and defendant himself—offered accurate testimony about how the events unfolded, but the
evidence in this case was certainly close enough that the absence of an instruction specifically
requiring the prosecution to disprove self-defense beyond a reasonable doubt might have tipped
the scales in the prosecution’s favor, thus undermining the reliability of the verdict and satisfying
defendant’s burden of establishing a reasonable probability of a different outcome but for defense
counsel’s deficient performance. Therefore, we conclude that defendant’s convictions of felon-
in-possession and felon-in-possession of ammunition must be vacated on the basis of ineffective
assistance of counsel.
B. FELONIOUS ASSAULT COUNTS
Defendant has established a valid claim of ineffective assistance regarding his convictions
of two counts of felonious assault and the corresponding charge of felony-firearm because defense
counsel failed to request an instruction regarding accident as a defense to a specific intent crime.
M Crim JI 7.3a provides:
The defendant says that [he / she] is not guilty of [state crime] because
[he / she] did not intend to [state specific intent required]. The defendant says that
[his / her] conduct was accidental. If the defendant did not intend to [state specific
intent required], [he / she] is not guilty. The prosecutor must prove beyond a
reasonable doubt that the defendant intended to [state specific intent required].
Inasmuch as defendant claimed he did not intend to point the gun at Conley or Schaus, he was
relying on an accident theory with respect to the felonious assault charges. Felonious assault is a
specific-intent crime, Rivera, 120 Mich App at 54, to which an accident defense applies.
The Michigan Supreme Court’s opinion in People v Leffew is instructive. In that case, the
Supreme Court concluded that the defendants’ “attorneys’ failures to request the [defense-of-
others] instruction constituted deficient performance, satisfying Strickland’s first prong.” Leffew,
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508 Mich at 643. The Court reasoned that the defendants were entitled to the instruction because
they “cleared the hurdle of putting forward ‘some evidence’ that” their actions were justified in
defense of others. Id. at 644. The defendants’ “trial strategy turned on a defense-of-others theory,”
but despite putting forth evidence and arguments advocating for “an acquittal under a defense-of-
others theory,” the attorneys “deprive[d the] jurors of a judge-given map to reach that destination”
by failing to request a defense-of-others instruction. Id. at 646. The Court then provided an
exhaustive analysis of the facts and concluded that the attorneys’ errors warranted reversal because
they undermined confidence in the trial’s outcome. Id. at 646-656.
With respect to the first prong, this case is closely analogous to Leffew. Defense counsel
clearly argued that defendant was entitled to acquittal based on the premise that, to the extent he
pointed the gun at Conley and Schaus, he did so accidentally. Everyone who was present when
defendant had the gun and testified at trial offered testimony that was at least partially consistent
with defendant’s contention that he never intentionally aimed the gun at them. Despite this,
defense counsel failed to request an instruction regarding this accident defense, thereby depriving
the jury “of a judge-given map to reach that destination” by failing to request a defense-of-others
instruction. Id. at 646. Therefore, by failing to request the instruction, defense counsel’s
performance fell below an objective standard of reasonableness.
We likewise conclude that there is a reasonable probability that the outcome would have
been different if the jury had been properly instructed. First, the evidence was not particularly
strong. In cases that do not have particularly compelling evidence of guilt, “the magnitude of
errors necessary for a finding of prejudice will be less than where there is greater evidence of
guilt.” People v Urbanski, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359011);
slip of ap 6 (quotation marks and citation omitted). There was not a single witness who
unequivocally testified that defendant intentionally pointed the gun at Conley and Schaus or that
he seemed to be trying to threaten anybody. Stigsell initially testified that the gun “wasn’t directly
pointed at” anybody and that “it was just like waved around in that direction.” It was only after
being confronted with his prior statement that Stigsell admitted that defendant “[t]echnically”
pointed the gun toward Conley and Borseth. Schaus testified that defendant might have
“indirectly” pointed the gun at people when he was waving it around. Schaus acknowledged that
defendant “briefly” pointed the gun at himself and Conley, but he downplayed the severity of the
incident and opined that defendant did not seem to be intentionally aiming the gun at anybody.
Finally, Conley testified that defendant had not threatened anybody with the gun, and defendant
testified that, if he did point the gun at anybody, he did so accidentally.
The jury did receive instructions that directly implicated the same legal theory presented
in M Crim JI 7.3a when the trial court advised the jury that the felonious assault charges required
proof that “defendant intended either to injure Mary Conley and/or James Schaus, or to make one
or both of them reasonably fear an immediate battery.” Defendant’s convictions of both felonious
assault charges suggest that the jury found defendant had the requisite intent and, therefore, did
not act accidentally. See People v Hawthorne, 474 Mich 174, 184-185; 713 NW2d 724 (2006)
(concluding that failure to instruct regarding accident defense did not prejudice the defendant
because intent element in first-degree murder instructions “made it clear that a finding of accident
would be inconsistent with a finding that defendant possessed the intent required for murder”).
Nevertheless, this case must be viewed in conjunction with inappropriate arguments and improper
statements of law put forth by the prosecution.
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During closing arguments, the prosecution repeatedly insisted that defendant’s intent was
irrelevant and that it did not matter if the gun was pointed at Conley and Schaus accidentally.
Instead, the prosecution erroneously stated that the only relevant inquiry was into the subjective
apprehension experienced by the alleged victims. The prosecution made the following comment
during its closing arguments:
During this ruckus, the defendant pointed the gun at his mother and pointed the gun
at . . . Schaus. Pointed the gun. That’s felonious assault. That’s assault with a
dangerous weapon. You don’t have to pull the trigger. You don’t necessarily have
to intend, as long as your consequences are enough to put a person in reasonable
fear. You’ll see that in the jury instructions. [Emphasis added.]
So, the prosecution not only stated that felonious assault turns on the consequences rather than the
intent, it also insinuated that the jury instructions would support this misstatement of the law. The
prosecutor then doubled down on this misstatement, explicitly saying that it did not matter if the
gun was pointed accidentally:
He makes it sound like it was accidental. If a gun is pointed at me I don’t care if
it’s accidental or not. If a gun is pointed at me that’s felonious assault. And if
you’re going to judge him by his intent, what was going on his mind, intoxication,
with no excuse and no defense, right, so he’s to be held accountable despite that
intoxication. [Emphasis added.]
In addition to stating that defendant’s intent was immaterial, the prosecution suggested that
examining his intent was optional. The prosecution’s message was clear: what mattered was the
consequences of defendant’s actions, not the intent behind his actions.
Defense counsel did attempt to correct the prosecution’s misstatements during her closing
arguments by addressing the fact that the jury “might have heard the prosecution say that
[defendant’s] intentions aren’t important and if he was waving a gun around and it was pointed
perhaps at someone that’s all that matters.” She then read the portion of the jury instructions
stating that the prosecution must prove that defendant “intended either to injure Mary Conley
and/or James Schaus or to make both of them reasonably in fear of an immediate battery.”
However, the prosecution returned to the issue during its rebuttal:
Even if the defendant by his actions had no intentions to scare [Conley] or Mr.
Schaus, it’s enough—we don’t have to prove that he intended to do that. It’s
enough if by his actions, and this is in the jury instructions, it would cause a
reasonable person to be put in fear or apprehend an immediate battery. So, again,
if a gun is pointed at you, would that put you in fear regardless of what’s going on
in the mind of [defendant]? What’s going on in his mind shouldn’t matter because
intoxication is not a defense here. [Emphasis added.]
Although the trial court correctly instructed the jury regarding the intent element, no special
attention was given to that issue, the legality of an accident defense, or the conflicting closing
arguments. The distinction between whether an actor intended to cause a particular state of mind
and whether the victim actually experienced that state of mind is a subtle one that could easily be
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lost on lay jurors, especially after one of the attorneys vigorously advocated for an incorrect view
of the law, without the trial court specifically endorsing or correcting either position. Moreover,
as noted above, the evidence in this case was so close that any doubt as to whether the jury was
misled regarding the intent element seriously undermines confidence in the outcome of
defendant’s trial.
In our view, the evidence in this case was too close to confidently conclude that the result
would have been the same had the jury been instructed regarding accident as a defense to felonious
assault. As noted earlier, the intent element was the primary disputed issue concerning the
felonious assault charges, and the evidence regarding that element, taken at face value, supported
an accident defense. Under these circumstances, defendant has demonstrated a reasonable
probability of a different outcome but for defense counsel’s deficient performance. Because
defendant’s felony-firearm conviction is predicated on his commission of felonious assault, he is
entitled to appellate relief with respect to that conviction as well.
V. CONCLUSION
In Docket No. 358789, we vacate defendant’s convictions and sentences, and this case is
remanded for additional proceedings consistent with this opinion. Because defendant’s speedy-
trial claim is without merit, the prosecution is entitled to bring the case to trial again. Docket No.
364433 is dismissed as moot because it only involves sentencing issues. See People v Thue, 336
Mich App 35, 39; 969 NW2d 346 (2021) (explaining that this Court does not address moot issues).
We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kristina Robinson Garrett
/s/ Allie Greenleaf Maldonado
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