Ineffective assistance of counsel; Failure to request certain jury instructions; Accident instructions; M Crim JI 7.1 or 7.3a; Self-defense instruction as to felony-firearm (M Crim JI 11.34c); Distinguishing People v Goree & People v Kilgore; Voluntary manslaughter instruction (M Crim JI 16.9); Failure to call additional experts; Failure to object to an in-court identification; Instruction given on duty to retreat; Due process claim based on the in-court identification; People v Gray; Cumulative error

The court rejected defendant-Gray’s ineffective assistance of counsel claims. It also held that the trial court did not abuse its discretion in giving jury instructions on the duty to retreat or in not giving instructions on voluntary manslaughter as a lesser offense and self-defense for felony-firearm. While it found that it was an obvious error to allow a witness’s in-court identification of Gray, it concluded he failed to show prejudice warranting reversal. Finally, it rejected his cumulative error claim. He was convicted of second-degree murder, AWIGBH, FIP, and felony-firearm, second offense. He argued on appeal that his trial counsel was ineffective for, among other things, not requesting jury instructions on accident, self-defense as to felony-firearm, and voluntary manslaughter. But the court held that trial “counsel was not ineffective for failing to request jury instructions on accident. Accident was not a defense that was reasonably supported by the evidence.” It noted that “Gray explicitly testified that he aimed the gun and intentionally shot” one of the victims (W). It also held that trial “counsel was not ineffective for failing to request self-defense instructions in regard to felony-firearm.” It found that this case was distinguishable from Goree and Kilgore, and that the “applicable self-defense law was clearly presented to the jury.” The court further determined that it “was reasonable for trial counsel to not request instructions on voluntary manslaughter when this charge was not supported by the evidence.” There was no evidence that Gray “acted out of emotional excitement, other than fear, which related to self-defense.” And trial counsel’s “strategy was to focus on Gray’s claim of self-defense.” As to the challenged in-court identification, applying plain error review and considering the eight Gray factors as a whole, the court concluded the witness’s “identification of Gray was of questionable reliability.” But another witness identified him “at trial, trial counsel stated in his opening statement that Gray was at [W’s] home, and Gray testified that he was present at [W’s] home when the shooting occurred. There was” also circumstantial evidence placing him there. Affirmed.