Ineffective assistance of counsel; Failure to ensure that the jury was properly instructed on the malice element of second-degree murder; Mullaney v Wilbur; Patterson v New York; Failure to request a jury instruction; Sentencing; Racist comments; Acquitted conduct

The court held that defendant could not establish an ineffective-assistance claim. Also, he was not entitled to resentencing on the basis of racist comments or consideration of acquitted conduct. He was convicted of second-degree murder and sentenced as a third-offense habitual offender to 45 to 60 years. Defendant argued “that defense counsel was ineffective by failing to ensure that the jury was properly instructed that, to prove the malice element of second-degree murder, the prosecution had the burden of disproving heat of passion and provocation beyond a reasonable doubt.” He principally relied on Mullaney. However, “Patterson limited Mullaney to situations where a fact is presumed or implied against a defendant.” That was not the case here. Further, in the context here, it was “unnecessary to delve further into Mullaney and the several cases from other jurisdictions cited by defendant.” Rather, the court agreed with the prosecution “that, given the applicable law in Michigan, defendant’s argument reflects ‘a desire to change the standard jury instruction . . . to a new version with different burdens of proof.’ It would not be proper for this Court to make the advocated-for changes.” Defendant also conflated “this desire with an evaluation of defense counsel’s effectiveness.” In the context of the issue presented here, the trial “court held that it ‘must determine whether defense counsel’s performance fell below an objective standard of reasonableness, and if so, whether defendant was prejudiced, which is the proper standard for reviewing defendant’s ineffective-assistance claim.’” The court held that for “the charged crime of first-degree premeditated murder, the trial court also instructed the jury on the lesser offenses of second-degree murder and voluntary manslaughter, as requested by defense counsel, and defendant was convicted of second-degree murder.” His claim “that to prove the element of malice for second degree murder, the prosecution has the burden of disproving heat of passion and provocation beyond a reasonable doubt, is misplaced. Furthermore, the trial court’s instructions clearly set forth the applicable elements and mirrored the Michigan Model Criminal Jury Instructions for second-degree murder, M Crim JI 16.5, and voluntary manslaughter, M Crim JI 16.9.” The trial “court’s instructions correctly informed the jury of all the required elements of second-degree murder and voluntary manslaughter, and informed the jury of the differences between the two offenses and the prosecutor’s burden of proof. Because the instructions fairly presented the issues to be tried, defense counsel’s failure to request an inapplicable instruction for a nonexistent element of second-degree murder was not objectively unreasonable.” Affirmed.