Lenawee Circuit Court. LC No. 13-016293-FC.
For PEOPLE OF MI, PLAINTIFF-APPELLEE: BRUGGEMAN JENNIFER, ADRIAN MI.
COOPER JAMES GRAHAM JR, DEFENDANT-APPELLANT: DAVIDSON RANDY E, DETROIT MI.
Before: Christopher M.
Murray, P.J., and Henry William Saad and Kirsten Frank Kelly, JJ.
[309 Mich.App. 76] Christopher M. Murray, P.J.
Defendant appeals as of right his jury trial convictions of first-degree home invasion, MCL 750.110a(2), assault with intent to commit murder, MCL 750.83, and torture, MCL 750.85. Defendant was sentenced to 320 to 640 months' imprisonment for first-degree home invasion, life in prison for assault with intent to commit murder, and 900 to 1,800 months' imprisonment
for torture. Defendant was sentenced as a twelfth-offense habitual offender, MCL 769.12. We affirm.
We review thousands of criminal cases each year. Unfortunately, far too many involve murder or other severe criminal depravity. This case is among the worst. The facts presented to the jury were established in large part by the victim, who unequivocally identified defendant as the main attacker. Also testifying against defendant were two of his former associates, both of whom provided the background leading to this truly horrific attack. We conclude that none of defendant's arguments has any merit. Consequently, we affirm all the challenged rulings of the trial court.
Typical of many of the violent crimes committed in this state, the events leading to this case started off with the use of illegal narcotics, and quickly led to an escalation of criminal activity. In December 2012, the victim, Henry Merritt, allowed his adult daughter, Jessica Tabernero, and her daughter to live in his home with him. Tabernero had a bad drug addiction. After her work ended at a local bar in the early morning hours of December 30, 2012, Tabernero went to the home of defendant's brother-in-law, Eric Williams, where defendant also lived, and began [309 Mich.App. 77] using crack cocaine. Also present were defendant; defendant's wife, Leah Cooper; Williams; and Jessica Miller. All were, and had been, ingesting significant amounts of crack cocaine. Soon after her arrival, defendant asked Tabernero to have sex with Leah as a birthday present to her; she agreed, and after doing so she exited the room and began showing signs of overdosing. While in that condition she stated that her father had raped her. Hearing this, defendant asked for her father's name and address, left the house and picked up Leondre McCarver, defendant's drug supplier, and proceeded to Merritt's home.
Thus, in the early morning of December 30, 2012, Merritt heard a noise that sounded like a loud boom coming from his kitchen. Merritt went to his kitchen and saw two men, a black man and a white man. Merritt identified the white man as defendant, though he had never seen either man before. Merritt asked the two men why they were in his home, to which they responded, " 'We're here to do a job.'" After this interaction, Merritt was " subdued by both of them and beat unmercifully around [his] face area." The men then took Merritt to his bedroom, where defendant accused Merritt of having sex with Tabernero. Merritt told them that he did not have sex with his daughter, but that his ex-wife's husband had done so.
Undeterred by Merritt's statement, both men continued to beat and choke Merritt while also continuing to accuse him of having sex with Tabernero. Defendant told Merritt that if he had " anything to do with sex" in his home, defendant was going to kill him. After this, [309 Mich.App. 78] Merritt was in and out of consciousness. Eventually, the two men dragged Merritt to the bathroom, " [f]orcibly," with a belt around his neck. Defendant and McCarver continued to beat Merritt in the bathroom.
Defendant then put Merritt in the bathtub, continued punching Merritt, and told McCarver to get a gas can that was just
outside Merritt's house. Defendant then doused Merritt with gasoline and said, " 'You're going to feel it, you're going to feel the wrath of me, you're going to feel the pain.'" Defendant then lit Merritt on fire. Merritt's neck was the only part of his body that caught on fire.
Merritt prayed " the whole time out loud and to [himself] asking God to help [him] . . . ." The pain from the fire was indescribably hot, and Merritt endured the heat until the gasoline burned itself out. To help with the pain, Merritt turned on the shower. Defendant reacted violently after Merritt turned on the water, punching him repeatedly. After that, defendant repeatedly hit Merritt's head with a hammer. Merritt was lit on fire again, burning his neck and upper back. Eventually, defendant and McCarver left the bathroom, and Merritt moved a dresser to block the bathroom door. However, both men obtained reentry after they broke the door down.
Eventually, defendant and McCarver left. The damage to Merritt's body was horrific. His middle finger was sliced off and he was stabbed in the arm either with a knife or the claw of a hammer. Merritt's arm was broken, his neck and the top part of his shoulders were burnt, and his face was bloody and swollen. Before getting help for his injuries, Merritt went downstairs in his home to smoke a cigarette. After he finally lit the [309 Mich.App. 79] cigarette, Merritt went outside and called for help; Merritt's neighbors, Laurie Damon and Tori Helsel, came to his rescue. Both testified that his injuries were so horrific that they were surprised that he could talk. Merritt was evacuated by helicopter to a hospital.
Based on these facts defendant was convicted of the aforementioned crimes by a jury of his peers. After his appeal was filed, we granted defendant's motion to remand for a Ginther  hearing to develop his argument that he was denied the effective assistance of counsel. People v Cooper, unpublished order of the Court of Appeals, entered May 6, 2014 (Docket No. 318159). Based on the evidence at trial and the record developed during the hearing on remand, we now turn to defendant's arguments on appeal.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was denied the effective assistance of counsel when defense trial counsel failed to object to, or actually elicited, irrelevant and unfairly prejudicial evidence that defendant was allegedly involved in drug use and drug dealing.
This issue is preserved because a hearing was held pursuant to People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). " Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge must first find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." People v Dendel, 481 Mich. 114, 124; 748 N.W.2d 859 (2008) (citation and quotation [309 Mich.App. 80] marks omitted). " This Court reviews for clear error a trial court's factual findings, while we review de novo constitutional determinations." People v Johnson,
293 Mich.App. 79, 90; 808 N.W.2d 815 (2011).
There is a presumption that counsel was effective, and a defendant must overcome the strong presumption that counsel's challenged actions were sound trial strategy. People v LeBlanc, 465 Mich. 575, 578; 640 N.W.2d 246 (2002). To establish a claim of ineffective assistance of counsel, " 'the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the " counsel" guaranteed by the Sixth Amendment.'" People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001), quoting Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). Furthermore, " [w]hether defense counsel's performance was deficient is measured against an objective standard of reasonableness." People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009). Thus, to prevail, a defendant must show that " counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 687-688, and he must show that he was prejudiced by counsel's performance, which can be shown by proving that there is a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. This Court " will not substitute [its] judgment for that of counsel on matters of trial strategy, nor will [this Court] use the benefit of hindsight when assessing counsel's competence." People v Unger, 278 Mich.App. 210, 242-243; 749 N.W.2d 272 (2008). The defendant " bears the burden of demonstrating both deficient performance and prejudice[; ] the defendant [also] necessarily bears the burden of establishing the factual predicate for his claim." Carbin, 463 Mich. at 600.
[309 Mich.App. 81] A. LAURIE DAMON'S DRUG TESTIMONY
First, defendant contends that defense trial counsel improperly elicited testimony from Damon regarding drugs. Specifically, defense trial counsel asked Damon whether she knew defendant, and in response Damon testified that she knew defendant from her " past" because her child's father, Mike Wotring, had received pills from defendant. While Damon had never met defendant face-to-face, she was certain ...