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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v LARRY GAVIN, Defendant-Appellant.

UNPUBLISHED December 16, 2010

No. 294653 Wayne Circuit Court LC No. 07-11302

Before: WHITBECK, P.J., and ZAHRA and FORT HOOD, JJ. PER CURIAM. A jury convicted defendant of first-degree premeditated murder, MCL 750.316, felon in possession of a firearm, MCL 750.224f, and possession of a firearm in the commission of a felony, MCL 750.227b. The trial court sentenced him to concurrent sentences of life imprisonment for the first-degree premeditated murder conviction and 40 months to 60 months' imprisonment for the felon in possession of a firearm conviction, both of which to be served consecutive to 2 years' imprisonment for the felony-firearm conviction. We affirm. I. BASIC FACTS This case arose from the 2001 shooting death of Andre Quarles. Durrell Foster, currently an inmate at the Milan Federal Detention Center (Milan), testified that he met defendant while in Milan in late 2006. He testified that he and defendant both believed that they knew the same person named, "Tone," who was from the east side of Detroit. Foster later discovered that he and defendant were not discussing the same Tone. Foster testified that defendant stated that he had killed Tone's brother "Dre." He testified that defendant also stated "he was locked up when this guy Tone got killed, but had he been out, [defendant] made the statement that he would have killed Tone--well, his exact words were, `I'd have gave it to Tone, the same way I gave it to his brother." He testified that during another conversation defendant mentioned that Dre's last name was Quarles. Foster testified that defendant mentioned that Dre's father was a police officer, and that Dre's father had previously arrested him for stealing a car that belonged to Dre's grandmother. Foster testified that defendant said he almost hit the grandmother when stealing the car. Foster testified defendant told him that, years later, Dre sold drugs from a house on Sheridan Street. He testified that defendant told him that Dre had a rule concerning the gate in the front yard; "if the gate was closed, nobody was supposed to come and knock on the door, or -1-

make an attempt to purchase crack." Foster testified that defendant told him that he sent a woman to the Sheridan house to purchase crack. The woman knocked on the door when the gate was closed and Tone took her money and refused to provide her any drugs. Foster testified that defendant told him he went to retrieve his money and argued with Dre. He testified that defendant told him he left the Sheridan house but returned the next day with a gun. Foster testified that defendant told him that Dre was on the front porch with his girlfriend, saw defendant's gun, and ran. He testified that defendant shot Dre in the leg but Dre escaped. He testified that defendant turned around, "caught Dre [sic] girl and asked her `So that's your guy? And she said, `Yeah." And defendant stated, "Here, take this for your guy,' and shot her" in the chest. Foster testified that defendant preferred the ".38 Special," calling it his "bread and butter." He testified that after defendant voiced this preference, "I looked at him, and I made the statement, I was like, `oh, that's probably what you killed Dre with huh?' And he looked at me, and made a motion like, `yep.'" Foster testified that defendant indicated that after he had shot Dre he was incarcerated on an unrelated matter. He testified that defendant said Dre was looking for him after he was released. He testified that Dre caught up with defendant and shot him. In regard to the instant offense, Foster testified that defendant stated that he, a girl, and his brother went to Dre's home. Foster testified that defendant knocked on the door and defendant asked "what do you need." Defendant replied, "I need two rocks, and take these two with you," and shot through the door. Foster testified that he informed a law enforcement official that defendant was "talking about how such a killer he is, and doing this and doing that," and that "[m]atter of fact, he mentioned something about he killed a police officer's son." He testified that he mentioned to the official that defendant likely used a .38 and that the victim had been shot twice through a door. He testified that his statements to the official prompted a conversation between him and a city of Detroit homicide detective. Foster admitted that he entered a plea deal with the federal government in which if he cooperated with a narcotics investigation he hoped to receive a reduced term of imprisonment of 141 months. He testified that he ultimately received only 84 months' imprisonment. He believed that his sentence was reduced because he provided substantial assistance in the narcotics case, but admitted that cooperation in the instant case may have helped reduce his sentence although he was "not sure; this case is still ongoing." Marcus Harvey testified that he was currently incarcerated at Milan. He testified that he had not been offered any consideration for his testimony. He testified that at Milan he overheard a conversation between defendant and Foster in which defendant "was talking how he was a killer, how he was a gangster. And that he killed a cop's son." He testified that defendant indicated that "he had sent his girlfriend to buy some drugs from the dude that's killed, and the dude took the girl money [sic] from her." He testified that defendant stated that he went to Dre's house and shot Dre in the leg and shot Dre's girlfriend. Harvey testified that defendant stated that Dre later shot defendant shortly after Dre had been released from jail. He testified that defendant recuperated and learned that Dre resided on Helen Street. He testified that defendant, his girlfriend, and his brother drove near Helen Street and parked. Harvey testified that -2-

defendant indicated that his brother walked to the side of Dre's house and that he "knocked on the door. And he shot twice through the door when Dre came to the door." Roda Barnes testified that in 1996 she lived on Sheridan Street. She also testified she was familiar with the house at 666 Helen Street as the home of Andre Quarles' grandparents. She testified that in 1996 she lived with Andre and that he was the father of her children. She testified that Andre's nickname was "Dre." She also testified that she knew defendant as one of Andre's customers. She testified that one day in 1996 she and Andre were on the porch of their house and defendant approached carrying a large revolver. Barnes testified that as she fled defendant shot her in her left arm. She testified that she hid from defendant but later returned to find that Andre had been shot in the leg. She testified that she left Michigan before Andre had been killed and that Andre's father had been a police officer for the city of Detroit. Danny Quarles testified that Andre and Andre's brother, Anthony, were his first cousins. He testified that 666 Helen was the address of their grandparent's house. He testified that he knew defendant from the neighborhood. He testified that in 1981 or 1982 he witnessed defendant steal a car parked in the lot next to his grandparents' house. Danny testified that defendant almost hit his grandmother while driving away. He testified that his grandmother called his uncle (Andre's father who is a police officer) who began a search for defendant. Danny testified that in September of 2001 he lived at 666 Helen. He testified that his grandparents no longer lived there and he and Andre sold drugs from the house. He testified that, at that time, he used a lot of crack cocaine. He testified that one day in September 2001, he and a friend met and went to a local pub. He testified that they left and went to 666 Helen to get crack cocaine from Andre. Danny knocked on the door but no one answered. Danny testified that he pushed the door open, which was braced with wood, enough to see a white tee shirt. He testified that he broke a window, entered the house, and saw Andre lying on the floor. He testified that he opened the door and let his friend and others that had shown up at the house inside. Danny testified that he and his friend then went upstairs, took a stack of money, drugs, and cassette tapes, and that he changed clothes because it had started to rain. He testified that his friend called the police but he left because he was on parole. Danny testified that police later arrested him entering Andre's vehicle. Anthony Quarles, Sr., testified that he was a retired city of Detroit police officer and that he had two sons, Anthony and Andre. He testified that 666 Helen was once his parents' home. He testified that in 1980 or 1981 he received a call and was told that defendant had stolen a car parked in the lot next door to 666 Helen. He testified that he arrested "one of the Gavin brothers" for the stolen car. He confirmed that his son Anthony was nicknamed "Tone," and had been murdered. Police officers' testimony in regard to the investigation generally supported the theory that Andre had been shot twice and that the bullets had first traveled through the front door at 666 Helen. David Pouch, a City of Detroit police officer assigned to the Crime Lab, Firearms, and Tool Mark Identification units, testified that he examined the bullets recovered from the 666 Helen crime scene and determined that either a 9 millimeter or a .38 that had been fired from the same weapon. William Steiner, a forensic chemist at the city of Detroit crime lab, testified that the clothes Danny was wearing when arrested tested negative for gunshot residue. -3-

Defendant testified that he did not kill Andre. He testified that Anthony Sr. had never arrested him. Defendant admitted that, in 1996, he went to the Sheridan house with a gun to confront Andre in regard to money that defendant believed Andre owed his friend. Defendant testified that Andre brandished a gun, and that defendant then began shooting at Andre. Defendant testified that he did know he had shot Barnes. He admitted that on a subsequent occasion Andre had shot him twice. Defendant testified that he did not see Andre after being released from the hospital for treatment of those gunshot wounds. Defendant testified that his cellmate in Milan was a friend of Andre and knew of the acrimony between defendant and Andre. He testified that his cellmate related the information to Foster. II. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant first argues that he was denied the effective assistance of counsel. He specifically argues that defense counsel failed to move for a mistrial after Danny mentioned that he offered to take a polygraph examination and later that he took the examination. Here, there was not a hearing in the trial court, and this Court's review is limited to the existing record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). The questions presented by a claim of ineffective assistance of counsel are mixed questions of law and fact; findings of fact by the lower court are reviewed for clear error, and questions of constitutional law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

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