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STATE OF MICHIGAN
COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIE HENRY GARRETT, JR., Defendant-Appellant. No. 264384 Muskegon Circuit Court LC No. 04-050965-FC UNPUBLISHED June 26, 2007

Before: Kelly, P.J. and Markey and Smolenski, JJ. PER CURIAM. Defendant was convicted by a jury of first-degree murder under two separate theories, premeditation, MCL 750.316(1)(a), and felony murder, MCL 750.316(1)(b), and was sentenced to life imprisonment without parole. He appeals as of right. We affirm. Defendant's conviction arises from the killing of Michael Villalpando, who was beaten, stabbed, and set on fire. Defendant conceded at trial that he killed the victim in this manner, but contended that he was only guilty of second-degree murder. Defendant first contends that defense counsel was ineffective for failing to have him examined by an independent medical professional for the purpose of assessing the viability of an insanity defense based on involuntary intoxication. Because defendant did not raise this issue in a motion for a new trial or an evidentiary hearing, our review is limited to mistakes apparent in the record. People v Noble, 238 Mich App 647, 661; 608 NW2d 123 (1999). "To establish ineffective assistance of counsel, a defendant must prove that his counsel's performance was deficient and that, under an objective standard of reasonableness, [he] was denied his Sixth Amendment right to counsel." People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). A defendant must also prove that his counsel's deficient performance was prejudicial to the extent that, but for counsel's error, the result of the proceedings would have been different. Id. "Effective assistance of counsel is presumed, and the defendant bears a heavy burden to prove otherwise." Id. Defendant maintains that his history of drug use and his ingestion of Prozac resulted in a form of involuntary intoxication that could be considered insanity. A defendant may have an insanity defense based on involuntary intoxication "when the chemical effects of drugs or alcohol render the defendant temporarily insane." People v Caulley, 197 Mich App 177, 187; 494 NW2d 853 (1992). However, defendant has not established the factual predicate for his -1-


ineffective assistance of counsel claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Beyond asserting that involuntary intoxication may support an insanity defense in theory, defendant has cited no record evidence whatsoever that he was involuntarily intoxicated at any point. Therefore, we conclude that defendant's ineffective assistance of counsel claim is without merit. Defendant also contends that the prosecutor committed misconduct by misstating the law during voir dire. We review an unpreserved claim of prosecutorial misconduct for plain error affecting the defendant's substantial rights. People v Abraham, 256 Mich App 165, 274-275; 662 NW2d 836 (2003). Issues of prosecutorial misconduct are decided on a case-by-case basis by examining the record and evaluating the prosecutor's remarks in context to determine whether the defendant was denied a fair and impartial trial. People v Rodriguez, 251 Mich App 10, 2930; 650 NW2d 96 (2002). The propriety of a prosecutor's remarks depends on all the facts of the case. Id. Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial. Id. During voir dire, defense counsel stated that there are situations in which a "[p]erson snaps, right?" Shortly thereafter, prosecutor followed up on this comment stating, "So, for example, this `just snapped' thing

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Michigan Law