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People v. Anderson

Court of Appeals of Michigan

January 16, 2018

HENRY ANDERSON, Defendant-Appellant.

         Oakland Circuit Court LC No. 2015-256384-FC

          Before: Talbot, C.J., and Murray and O'Brien, JJ.

          Per Curiam.

         Defendant Henry Anderson appeals as of right his jury trial convictions of two counts of assault with intent to murder[1] and two counts of carrying a firearm during the commission of a felony (felony-firearm).[2] The trial court sentenced Anderson to 11 years and 6 months to 60 years' imprisonment for each assault with intent to murder conviction and a consecutive two years' imprisonment for each felony-firearm conviction. We affirm.

         I. BACKGROUND

         This case arises out of an incident that occurred on July 30, 2015, at approximately 5:30 a.m. in front of Anderson's home. Victor Stinson and Joshua Harris were working for Signature Recovery Service repossessing cars and had a repossession order for a Chrysler 300 parked in Anderson's driveway. After Stinson and Harris confirmed it was the correct vehicle, they backed their tow truck up to the rear end of the Chrysler 300 and got to work quickly, using the wheel lift equipment on the tow truck to grab the back end of the Chrysler 300 so they could tow it away. While the men worked in darkness using flashlights, Anderson heard a noise that woke him up. He looked out the window and saw Stinson and Harris preparing to tow his car away. Anderson asked his wife to call 911 and went outside to confront the men, armed with a loaded handgun.

          Harris noticed Anderson standing on the porch wearing only his underwear and alerted Stinson. Stinson approached Anderson, introduced himself, and explained that he had a valid repossession order for the Chrysler 300. Stinson told Anderson that he would show him the documentation and started to walk toward the tow truck to get the paperwork. Harris continued securing the Chrysler 300 onto the tow truck. Instead of waiting to see the order, Anderson repeatedly told the men to "drop the car" and then brandished his weapon. Harris saw the weapon and yelled "gun" as Stinson was leaning into the cab of the tow truck to get the documentation off of a clipboard.

         Harris immediately ran to the back of the tow truck to take cover. When Stinson turned around, he saw Anderson raise the weapon and then felt a bullet hit his leg and saw blood gushing out. Anderson took another shot, which hit the pavement not far from Stinson and Harris, who both saw the bullet ricochet off Anderson's driveway. Leaning on the tow truck, Stinson limped to the far side of the truck and collapsed on the grass. Harris was able to get their cell phones from the truck and attempted to call 911. Anderson walked to the back of his house, then around the side of his house, and emerged approximately 30 to 45 seconds later at the top of his driveway where he fired another shot at Stinson and Harris before retreating into his house. The entire incident was recorded on Anderson's home security system.

         When the police arrived, Anderson told an officer that the men were trying to steal his car, that they had no right to take his car, and that he had a right to protect his property. Anderson acknowledged to police that Stinson and Harris were "repo guys." By contrast, Anderson testified at trial that he heard a metallic sound, believed that Stinson had a metal rod or pipe in the cab of the truck, and feared for his life when he decided to open fire. Anderson admitted to firing three shots during the incident. He also maintained that the repossession was unlawful because he was up to date on his payments and insurance. The jury convicted Anderson as charged.


         Anderson first argues that he was denied his constitutional right to the effective assistance of counsel and should be granted a new trial or an evidentiary hearing. "Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law."[3] "Generally, a trial court's findings of fact, if any, are reviewed for clear error, and questions of law are reviewed de novo."[4] "When no Ginther[5] hearing has been conducted, our review of the defendant's claim of ineffective assistance of counsel is limited to mistakes that are apparent on the record."[6]

          To establish that his lawyer provided ineffective assistance, a defendant must show that (1) his lawyer's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for his lawyer's deficient performance, the result of the proceedings would have been different.[7] "A reasonable probability is a probability sufficient to undermine confidence in the outcome."[8] In addition, "[e]ffective assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise."[9] The "[d]efendant also bears the burden of establishing the factual predicate for his claim."[10]

         Anderson first argues that defense counsel was ineffective for failing to request a jury instruction on the use of nondeadly force in self-defense, [11] rather than use of deadly force in self-defense.[12] In support, Anderson maintains that the evidence clearly showed that he used nondeadly force when he fired his weapon because no one died as a result of the incident. We disagree. At trial, Anderson admitted to firing three shots at Stinson and Harris who were unarmed, nonconfrontational, and simply performing the duties of their repossession jobs. Record evidence, including video surveillance footage of the incident, confirms that Anderson fired three shots in the direction of the two men during the course of the incident. One of Anderson's hollow-point rounds actually hit Stinson in the leg, causing him to collapse to the ground bleeding. While Stinson and Harris took cover behind the tow truck, Anderson had the opportunity to walk away, and in fact did, but then returned and chose to fire another shot at the men. A gun is a deadly weapon and firing a deadly weapon at other people-once or several times-undoubtedly involves the use of deadly force, as it is an act for which "the natural, probable, and foreseeable consequence . . . is death."[13] We agree with the prosecution's contention that the fact that Anderson aimed his shots poorly does not absolve him or show that he used nondeadly force. Because there was no basis for a nondeadly force instruction, trial counsel was not ineffective for failing to raise a meritless argument.[14]

         Next, Anderson argues that trial counsel was ineffective for failing to argue that the repossession men had breached the peace. Anderson contends that the self-help repossession statute, MCL 440.9609, provides that a secured party may take possession of collateral without judicial process if it proceeds without breach of the peace. Anderson's argument fails because he has not met his burden to establish the factual predicate for his claim.[15] The record evidence shows that Stinson and Harris had a valid repossession order for Anderson's vehicle, and in executing the directives of that order, Stinson and Harris worked swiftly, quietly, and under cover of darkness specifically to lessen the chances of confrontation with Anderson. To the extent that a breach of the peace occurred, it was a result of Anderson's decision to shoot at the victims, rather than any conduct on the part of Stinson or Harris. As such, Anderson's argument fails. Once again, trial counsel was not ineffective for failing to raise a meritless argument.[16]

         Anderson next argues that trial counsel failed to investigate Anderson's neighbors to determine whether they saw anything and or his credit union to verify that the repossession was unlawful. The failure to reasonably investigate a case can constitute ineffective assistance.[17]However, Anderson's argument fails because, once again, he has not established the factual predicate for his claim.[18] Anderson provides no evidence in support of his assertions. On the record before the Court, it is just as likely that defense counsel did investigate these potential witnesses but found that their testimony would not be useful. With regard to the neighbors, Anderson ignores the video evidence of the incident captured by his own home security system, which supported the victims' version of the events. With regard to the validity of the repossession order, Harris testified that the police allowed him to tow the vehicle away after the incident. This evidence clearly supported the conclusion that the repossession order was valid. Because there is no available record that would establish that trial counsel failed to interview or investigate potentially helpful witnesses, Anderson's claim necessarily fails.

         Furthermore, "[t]he failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense. Similarly, [t]he failure to make an adequate investigation is ineffective assistance of counsel if it undermines confidence in the trial's outcome."[19] Anderson fails to explain how counsel's alleged failure to interview neighbors and credit union employees deprived him of either a substantial defense or evidence that could have been helpful to the defense. There is no basis for concluding that defense counsel failed to subject the prosecution's case to meaningful adversarial testing. Even assuming that Anderson's counsel did not investigate and interview witnesses, the record discloses that counsel extensively cross-examined the witnesses at trial and moved for a directed verdict, arguing that the prosecutor failed to offer sufficient evidence to present certain charges to the jury. Anderson's argument therefore fails.


         Anderson next contends that his convictions must be overturned because the jury's verdict was against the great weight of the evidence. "The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand."[20] When a defendant claims on appeal that his convictions were against the great weight of the evidence,

"[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial." "[U]nless it can be said that directly contradictory testimony was so far impeached that it 'was deprived of all probative value or that the jury could not believe it, ' or contradicted indisputable physical facts or defied physical ...

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