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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TOMMIE LEE COLEMAN, Defendant-Appellant.

UNPUBLISHED April 20, 2010

No. 290162 Calhoun Circuit Court LC No. 2008-002619-FC

Before: DAVIS, P.J., AND DONOFRIO AND STEPHENS, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of one count of first-degree premeditated murder, MCL 750.316(1)(a), and one count of first-degree felony murder, MCL 750.316(1)(b). Because defendant has not shown that he was prejudiced by the jury instructions, and because he has not shown that his trial counsel was ineffective, we affirm. But, we remand for correction of the judgment of sentence in accordance with this opinion. Defendant's convictions arose from the robbery and shooting death of the victim, Darrius Phillips, in Battle Creek, Michigan on April 7, 1994.1 On that date, Phillips and Eugene Jarrett were selling drugs, namely crack cocaine, out of a house located at 11 Hanover Street. Their normal practice was to sell drugs from the interior of the house with one of them armed with a shotgun. But on the date in question they were selling drugs outside in the backyard of the house and were unarmed. Phillips and Jarrett stashed the drugs somewhere on the ground and stood close together conducting drug transactions. According to Anthony Watson,2 he was at another drug house in Battle Creek that night when defendant and another man, Keith Cork, came into the house. Watson testified that

This homicide, classified as a "cold case" remained unsolved and sat dormant in the Battle Creek police department until late September or early October 2006 when police received a letter titled the "guardian letter." According to police, the "guardian letter" contained significant details about Phillips' homicide, including who was involved, and thus, police were able to reopen their investigation.
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After being approached and questioned by police, Watson confessed to his involvement in the
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defendant propositioned him to "go hit a lick," meaning participate in a robbery at another drug house, specifically, 11 Hanover Street. Watson testified that defendant explained that people were selling drugs out of a backyard and that they did not have weapons. Watson thought it would be "easy" to rob the unarmed drug dealers and agreed to participate to get "quick money." Watson stated that they hatched a plan to approach the dealers, pretend to buy drugs, pull out money, and then commit the robbery. Watson testified that it was his understanding that they were only bringing weapons as "intimidation tools" and there was no plan to kill anyone during the robbery. Watson had a .357 revolver and defendant had a small caliber pistol. Watson testified that he left the drug house in a truck with defendant, Cork, and the driver of the truck, Willie Edwards. They parked in a parking lot near 11 Hanover Street. According to Watson, Edwards did not leave the truck. Watson stated that he, defendant, and Cork left the truck and walked toward the backyard area of the target house, and though it was dark outside they could see two men in the backyard. There is confusion in the record regarding whether two or three men approached Phillips and Jarrett. According to Watson, the three of them, Watson, defendant, and Cork, approached the two men in the backyard and indicated they wanted to buy drugs. According to Jarrett, only two men approached himself and Phillips with the intent to purchase drugs. Jarrett did not recognize either of the men. Both Jarrett and Watson testified that defendant walked toward Phillips. It was Phillips' and Jarrett's routine only to sell to people they recognized as known customers. Watson testified that defendant briefly spoke to Phillips. Jarrett testified that Phillips approved the transaction by nodding to Jarrett. Watson stated that he and Cork pretended to pull money out to give to Jarrett. At the same time, Jarrett bent over to retrieve the crack cocaine from the bushes. At this point, both Watson and Jarrett heard the sound of a gunshot. Watson looked up and saw defendant with his gun in his hand. Jarrett immediately tried to run away, but tripped. Watson testified that he was surprised to hear the gunshot and pulled out his own gun and went after Jarrett. Watson grabbed Jarrett and threw him to the ground, yelling at him, and demanding the drugs and money. Jarrett told him that the money was in his coat and then Watson grabbed the coat. Jarrett testified that when Watson threatened to shoot him with the revolver, he got up and ran away, jumped a few fences, and then hid from the police. Watson testified that Cork was present during the robbery, but after the gunshot he ran away. According to Watson, the last time he saw defendant, defendant was standing behind Phillips, "almost directly behind him. Kind of like at an angle, slight angle." Watson also testified that after the shooting, defendant left by walking around the side of the house. Watson then ran back to the parking lot and got into the truck with Edwards and Cork. They left the parking lot and eventually caught up with defendant a few streets over. The four of them returned to the drug house they were at when they had initially concocted the robbery plan. They split up the robbery

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murder of Phillips on the date in question. Prosecutors initially charged Watson with felony murder, but in exchange for his testimony against defendant he pleaded guilty to second degree murder with a 15 year prison term recommendation from the prosecutor's office.

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proceeds amounting to about $200 in cash and 12 rocks of crack cocaine valued at approximately $300. None of them mentioned the shooting at that time and all kept silent.3 On the date of the shooting, Kurt Dittmer was employed by the Battle Creek Police Department as the night shift patrol officer. He received a report that there had been a shooting at 11 Hanover Street and he was the first to report to the scene. Dittmer saw Phillips' body laying face down in the backyard of the house with blood coming out of his mouth. At the time of the shooting, Michael Van Stratton was also employed by the Battle Creek Police Department and was working as the supervisor of the crime laboratory. While collecting evidence at the site, Van Stratton recovered a spent .25 caliber cartridge near Phillips' body. The bullet that was recovered from the head of the victim was a .25 caliber bullet. Dr. Karl Loomis, a forensic pathologist, performed the autopsy of Phillips. He discovered a bullet entrance wound in the back of Phillips' head located behind the right ear. Apparently, Phillips had been wearing a hooded sweatshirt with the hood on his head at the time he was shot because there was a hole in the sweatshirt with indications that he was shot either at a very short range, or right up against the hood material. The bullet entered from the back of Phillips' head, traveled through the base of his brain from right to left, and then remained lodged in his skull. Jarrett testified at trial that he spoke with police about a month after the crime but did not provide his real name. He stated that he has lived a crime-free life since the incident and years later when approached by the Battle Creek cold case squad he provided his real name as well as a full statement. While he did not testify at trial, police interviewed defendant at various times during their investigation. Defendant denied all involvement in the crime and stated that he had been in Detroit at the time of Phillips' murder. He also stated that he did not know who committed the crime. The jury found defendant guilty of both first degree premeditated murder and felony murder. Defendant now appeals as of right. Defendant first argues that the trial turned on the testimony of prosecution witness Watson who was an undisputed accomplice, and as such, defendant's due process rights were violated by the trial court's delivery of contradictory jury instructions regarding the assessment of Watson's testimony. "This Court reviews de novo a defendant's claim of instructional error." People v McKinney, 258 Mich App 157, 162; 670 NW2d 254 (2003). Further, The determination whether a jury instruction is applicable to the facts of the case lies within the sound discretion of the trial court. This Court reviews jury instructions in their entirety to determine "if error requiring reversal occurred." There is no error requiring reversal if, on balance, the instructions fairly present the issues to be tried and sufficiently protect the defendant's rights. [People v Heikkiner, 250 Mich App 322, 327; 646 NW2d 190 (2002) (citations omitted).]

There is no mention in the record of prosecution of Cork or Edwards and defendant's brief on appeal intimates that neither of the men were prosecuted for their alleged involvement in the offense.

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In cases where a party expressly approves the trial court's jury instructions when the trial court asks if there are any objections to the instructions and in response to that direct question by the trial court, the party denies any objections to the jury instructions, the party waives any challenges to jury instructions on appeal. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). Here, after instructing the jury, the trial court asked defense counsel the following question: "You're agreeable with the instructions as given?" Defense counsel responded in the affirmative. "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Accordingly, we conclude that this issue is waived on appeal, and we decline to discuss it further. Id. But, defendant revives his argument by asserting that defense counsel was ineffective for failing to object to allegedly contradictory jury instructions. This Court's review of an unpreserved ineffective assistance of counsel claim is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). An ineffective assistance of counsel claim is a mixed question of law and fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial court's findings of fact, if any, are reviewed for clear error, and the ultimate constitutional issue arising from an ineffective assistance of counsel claim is reviewed by this Court de novo. Id. An ineffective assistance of counsel claim is established only where a defendant is able to demonstrate that trial counsel's performance "fell below an objective standard of reasonableness and that this was so prejudicial to him that he was denied a fair trial." People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). A defendant is required to overcome a strong presumption that sound trial strategy motivated trial counsel's conduct. Id. Additionally, a defendant must demonstrate a reasonable probability that the result of the proceedings would have been different but for the counsel's errors in order to show prejudice. Id. Counsel's performance is "measured against an objective standard of reasonableness under the circumstances and according to prevailing professional norms." People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). Moreover, "this Court neither substitutes its judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of counsel's competence with the benefit of hindsight." People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Defendant asserts in particular that the trial court's reading of the following two instructions were "completely contradictory" and as a result constitute reversible error. The first challenged instruction is as follows: Now you've heard that certain witnesses, William Finnie, Bruce Bryant, and Anthony Watson have been convicted of a crime in their past. You should judge the witnesses

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