People of Michigan v. Demetrius Orese-Charles Armour ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 20, 2018
Plaintiff-Appellee,
v No. 337434
Wayne Circuit Court
DEMETRIUS ORESE-CHARLES ARMOUR, LC No. 16-002452-02-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.
PER CURIAM.
Defendant, Demetrius Armour, appeals as of right his conviction of first-degree
premeditated murder, MCL 750.316(1)(a). The trial court sentenced Armour, who was 17 years
old on the date of the offense, to a prison term of 40 to 60 years. Because there are no errors
warranting reversal, we affirm.
I. BASIC FACTS
Armour’s conviction arises from a gang-related shooting at the Eastland Mall in Harper
Woods, which resulted in the death of Tyrell Lane. Armour, along with codefendants Brendon
Stanton-Lipscomb, Tyler Tate, and Tyshon Taylor were all members or supporters of the street
gangs Eastside Ghetto Boys (EGB) or Rob Gang. Stanton-Lipscomb had formed the Rob Gang
after the September 2013 shooting death of his cousin and close friend, Robert Carter. Members
of the Hob Squad gang, which is a subgroup of the Seven Mile Bloods gang, were believed to be
responsible for Carter’s death. The Hob Squad gang and the Rob Gang were rivals and were
hostile to each other. The victim in this case, Lane, was a Hob Squad member.
On December 26, 2015, Taylor contacted Stanton-Lipscomb to inform him that he and
Tate were at the Eastland Mall where they saw Lane and overheard him disparaging the Rob
Gang. Armour and Stanton-Lipscomb drove to the mall. Stanton-Lipscomb went inside the mall
while Armour waited in the driver’s seat of the car, which was near the entrance to the
Burlington Coat Factory store. Stanton-Lipscomb returned to the car, but then left again and
concealed himself behind a pillar outside the Burlington store. Armour testified that before
Stanton-Lipscomb left the vehicle, he told Armour “If I don’t make it back, I love you.” Armour
continued to wait in the driver’s seat of the car outside the store. Shortly thereafter, Lane, who
was being escorted by Tate, exited the Burlington store, at which time Stanton-Lipscomb
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emerged from behind the pillar and shot Lane several times, killing him. Stanton-Lipscomb
returned to the waiting car and Armour sped away.
The police initially regarded Tate as a targeted victim, but further investigation led them
to believe that both Tate and Taylor were participants in the murder. Armour, Stanton-
Lipscomb, Tate, and Taylor were all charged with first-degree premeditated murder in
connection with Lane’s shooting death, but they were prosecuted separately. Stanton-Lipscomb
was convicted of first-degree premeditated murder and possession of a firearm during the
commission of a felony by a jury in June 2016. 1 Thereafter, Taylor pleaded guilty to a reduced
charge of second-degree murder, MCL 750.317.2 In April 2017, another jury convicted Tate of
first-degree premeditated murder, as well as making a false report of a felony, MCL
750.411a(1)(B), and lying to a police officer in a criminal investigation, MCL 750.479c(2)(d)(i).
Armour was convicted in the instant case in January 2017.
II. SUBSTITUTION OF COUNSEL
A. STANDARD OF REVIEW
Armour argues that the trial court erred by denying his request for a substitute counsel.
The trial court’s decision regarding substitution of counsel is reviewed for an abuse of discretion.
People v Traylor, 245 Mich. App. 460, 462; 628 NW2d 120 (2001). “An abuse of discretion
occurs when the trial court’s decision is outside the range of principled outcomes.” People v
Daniels, 311 Mich. App. 257, 265; 874 NW2d 732 (2015). To the extent that this issue presents a
constitutional question, review is de novo. Id.
B. ANALYSIS
Although an indigent defendant is guaranteed the right to the assistance of a lawyer, he or
she is not guaranteed a lawyer of his or her choice. Traylor, 245 Mich. App. at 462. However, a
defendant is entitled to substitution of his lawyer if discharge is for good cause and does not
unreasonably disrupt the judicial process. People v Buie (On Remand), 298 Mich. App. 50, 67;
825 NW2d 361 (2012). “Good cause may exist when a legitimate difference of opinion develops
between a defendant and his appointed counsel as to a fundamental trial tactic, when there is a
destruction of communication and a breakdown in the attorney-client relationship, or when
counsel shows a lack of diligence or interest.” People v McFall, 309 Mich. App. 377, 383; 873
NW2d 112 (2015) (quotation marks and citation omitted). “A mere allegation that a defendant
lacks confidence in his or her attorney, unsupported by a substantial reason, does not amount to
adequate cause. Likewise, a defendant’s general unhappiness with counsel’s representation is
insufficient.” Id. at 383 (citation and quotation marks omitted).
1
Stanton-Lipscomb has appealed his convictions appeal in Docket No. 337433, which has been
submitted with the instant appeal.
2
Tate has appealed his convictions in Docket No. 338360, which has been submitted with the
instant appeal.
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A trial court is obligated to inquire about the truth of a defendant’s allegations that there
is a dispute which has led to the destruction of communication and a breakdown in the attorney-
client relationship. People v Bass, 88 Mich. App. 793, 802; 279 NW2d 551 (1979). “When a
defendant asserts that his assigned lawyer is not adequate or diligent or asserts . . . that his lawyer
is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony
and state his findings and conclusions.” People v Ginther, 390 Mich. 436, 441-442; 212 NW2d
922 (1973).
Here, shortly before trial, Armour informed the trial court that he wanted a different
lawyer. The court placed him under oath and allowed him to explain the reasons behind his
request to discharge his lawyer. Armour stated that he thought his lawyer was working with the
prosecutor, was not fighting for him, and was not working in his best interests. The only
example that Armour provided was an unsatisfactory plea offer whereby Armour would plead
guilty to second-degree murder with a sentence cap of 15 years, which Armour claimed was later
increased to 25 years. After Armour explained his position, the trial court questioned Armour’s
lawyer about his trial preparation. Armour’s lawyer stated that he had investigated the case,
made himself available to Armour, and explained to him the strong aspects of the prosecution’s
evidence. Armour’s lawyer also stated that he questioned Armour to ensure that he understood
the communications between him and his lawyer. The trial court remarked that Armour’s lawyer
had filed several well-written motions on Armour’s behalf, had appeared at every hearing, and
was committed to representing Armour. And, in denying Armour’s request for a new lawyer, the
court noted that it could not just fire a lawyer because Armour wanted a different lawyer.
On appeal, Armour complains that the trial court did not sufficiently inquire into his
complaints about his lawyer’s plea negotiations with the prosecutor. There was no need for the
trial court to further inquire into this issue because Armour clearly explained that he blamed his
lawyer for what he perceived as unsatisfactory progress in plea negotiations. Armour’s
dissatisfaction does not constitute a legitimate difference of opinion regarding a fundamental
strategy. McFall, 309 Mich. App. at 383. Similarly, Armour’s general assertions that he did not
believe that his lawyer was “fighting” for him or acting in his best interests were insufficient to
establish good cause for substitution of counsel. These types of expressions of a general
unhappiness or lack of confidence with an appointed lawyer, unsupported by a substantial
reason, do not amount to adequate cause for substitution. Id. Accordingly, the record does not
support Armour’s claim that the trial court failed to adequately inquire into his dissatisfaction
with his lawyer, and the trial court did not abuse its discretion by denying Armour’s request to
discharge his lawyer.
III. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Armour argues that the evidence was insufficient to prove his guilt under an aiding or
abetting theory. Challenges to the sufficiency of the evidence are reviewed de novo. People v
Perry, 317 Mich. App. 589, 599; 895 NW2d 216 (2016). The evidence is examined in the light
most favorable to the prosecution “to determine whether a rational trier of fact could find that the
prosecution proved the crime’s elements beyond a reasonable doubt.” Id. “This Court will not
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interfere with the jury’s role of determining the weight of evidence or the credibility of
witnesses.” People v McRunels, 237 Mich. App. 168, 181; 603 NW2d 95 (1999).
B. ANALYSIS
“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627
(2010). The prosecution’s theory was that Armour aided or abetted Stanton-Lipscomb in
murdering Lane. In order to support a conviction under an aiding and abetting theory:
[T]he prosecutor must show that (1) the crime charged was committed by the
defendant or some other person, (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime, and (3) the defendant
intended the commission of the crime or had knowledge that the principal
intended its commission at the time he gave aid and encouragement. [People v
Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999) (quotation marks and
citations omitted).]
“[B]ecause it can be difficult to prove a defendant’s state of mind on issues such as knowledge
and intent, minimal circumstantial evidence will suffice to establish the defendant’s state of
mind, which can be inferred from all the evidence presented.” People v Kanaan, 278 Mich. App.
594, 622; 751 NW2d 57 (2008).
Armour was Stanton-Lipscomb’s close associate. They both belonged to the Rob Gang,
which Stanton-Lipscomb had formed after the shooting death of Stanton-Lipscomb’s cousin and
close friend, who allegedly was killed by members of the Hob Squad gang. Thereafter, the Rob
Gang and the Hob Squad gang were hostile to each other. Armour and Stanton-Lipscomb thus
shared a common hostility toward Lane, a Hob Squad member. Armour came with Stanton-
Lipscomb to the Eastland Mall after Stanton-Lipscomb communicated with Taylor. Although
Stanton-Lipscomb drove to the mall, Armour took his place in the driver’s seat after they arrived.
In view of the close association and the gang affiliation between Armour and Stanton-Lipscomb,
and the ongoing gang hostility between the Rob Gang and the Hob Squad, of which Lane was a
member, and Armour’s decision to accompany Stanton-Lipscomb to the mall after learning that a
Hob Squad member was there who had denigrated the Rob Gang, the jury could infer that
Armour and Stanton-Lipscomb were working together and went to the mall with a common
purpose and plan.
In addition, according to the surveillance evidence, after arriving at the mall, Armour
waited in the car, which was parked just outside the Burlington store, while Stanton-Lipscomb
went inside. Thereafter, Stanton-Lipscomb briefly returned to the car before ultimately taking up
a position outside the Burlington exterior entrance where he could see into the Burlington store
while Tate escorted Lane to the exit. Armour was close enough to observe this activity from the
driver’s seat of the car. In addition, Armour’s testimony makes clear that on the way to the mall,
Stanton-Lipscomb stated he was going to kill someone and, before, he left the vehicle, he told
him that “if I don’t make it back, I love you.” Although Armour denied knowing that Stanton-
Lipscomb was literally going to kill someone or that Stanton-Lipscomb, in fact, planned to kill
Lane, the jury was not required to credit his denial. There is also evidence that the license plate
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on Armour’s vehicle was partially obscured, and video footage showed Armour going to the rear
of the car while it was parked at the mall. The jury could infer from this evidence that Stanton-
Lipscomb provided details of the plan to shoot Lane to Armour, who then concealed part of the
license plate in order to prevent easy identification of the vehicle. Surveillance footage also
showed that while Armour was waiting in the driver’s seat of the car and Stanton-Lipscomb was
preparing to shoot Lane, the brake lights on the car were lit, which supported an inference that
the car’s gear position was in drive to prepare for a quick getaway. When Stanton-Lipscomb
returned to the car after the shooting, Armour sped off, running stop signs and red lights while
traveling away from the mall. “Evidence of flight is admissible to support an inference of
consciousness of guilt and the term flight includes such actions as fleeing the scene of the
crime.” People v Unger, 278 Mich. App. 210, 226; 749 NW2d 272 (2008) (citation, quotation
marks, and brackets omitted).
Viewed in a light most favorable to the prosecution, we conclude the evidence was
sufficient to allow the jury to find beyond a reasonable doubt that Armour willingly agreed to act
as a getaway driver, with knowledge of Stanton-Lipscomb’s intention to shoot and kill Lane, a
rival gang member. Accordingly, the evidence was sufficient to support Armour’s conviction of
first-degree murder under an aiding or abetting theory.
IV. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
Armour next contends that the prosecutor engaged in misconduct by intentionally
eliciting prejudicial testimony in violation of an earlier ruling by the trial court. To preserve a
claim of prosecutorial misconduct, a defendant must contemporaneously object and request a
curative instruction. Bennett, 290 Mich. App. at 475. Armour objected to Detective Michael
Morrish’s testimony regarding the contents of a video on the ground that the trial court had
previously suppressed the video, but he did not object on the ground of prosecutorial misconduct,
nor he did not request a curative instruction in response to the brief answer that Morrish
provided. Accordingly, Armour’s claim of prosecutorial misconduct is unpreserved.
“Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights.” People v Brown, 294 Mich. App. 377, 382; 811 NW2d 531 (2011).
B. ANALYSIS
During trial, the trial court granted Armour’s motion to exclude a video recording that
depicted Stanton-Lipscomb brandishing a handgun in Armour’s presence. At the time, the
prosecutor asked the court if he could question his witness about the content of the video. The
court responded that it could not tell him because it did not know what he was going to ask or if
there would be an objection. Subsequently, the prosecutor asked Detective Michael Morrish to
describe the contents of a video he extracted from a cell phone. The detective stated that the
video depicted several persons smoking “and waving a small semi-automatic firearm.”
Armour’s lawyer objected, and the trial court sustained the objection, stating, “I thought I made
my intentions very clear, on the record before. You cannot continue this line of questioning.”
Armour now argues that the prosecutor deliberately violated the trial court’s earlier ruling
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excluding the video and that this misconduct denied him a fair trial because it allowed highly
prejudicial testimony to be heard by the jury.
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Brown, 279 Mich. App. 116, 134; 755 NW2d 664 (2008).
“[A]llegations of prosecutorial misconduct are considered on a case-by-case basis, and the
reviewing court must consider the prosecutor’s remarks in context.” Bennett, 290 Mich. App. at
475. “A finding of prosecutorial misconduct may not be based on a prosecutor’s good-faith
effort to admit evidence.” People v Dobek, 274 Mich. App. 58, 76; 732 NW2d 546 (2007). In
this case, because the trial court left open the possibility that a witness might be permitted to
testify regarding the contents of the video and expressed that it would decide the matter later if
there was an objection, there is no evidence that the prosecutor’s questions about the content of
the video were done in bad faith. Armour’s claim of prosecutorial misconduct is, therefore,
without merit.
V. SENTENCE
A. STANDARD OF REVIEW
Finally, Armour argues the trial court erred by failing to consider the factors listed in
Miller v Alabama, 567 U.S. 460, 479; 132 S. Ct. 2455; 183 L. Ed. 2d 407 (2012), when it sentenced
him to 40 to 60 years in prison. He argues that the sentence imposed is unreasonable and
disproportionate, and that his lawyer was ineffective at sentencing because he failed to present
psychological evaluations and other mitigating information to the trial court. The trial court
imposed a term-of-years sentence under MCL 769.25(9). A juvenile offender’s sentence under
MCL 769.25 is reviewed for an abuse of discretion. People v Skinner, ___ Mich ___, ___; ___
NW2d ___ (2018) (Docket No. 152448), reh pending; slip op at 41. The trial court abuses its
discretion when it reaches a decision that is outside the range of reasonable outcomes. People v
Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003). A sentence is unreasonable only when it
violates the principle of proportionality, i.e., when it is disproportionate “to the seriousness of the
circumstances surrounding the offense and the offender.” People v Steanhouse, 500 Mich. 453,
471, 474; 902 NW2d 327 (2017) (quotation marks and citation omitted). Any findings of fact
made by the trial court at sentencing are reviewed for clear error and any questions of law are
reviewed de novo. Skinner, ___ Mich at ___; slip op at 40-41 n 27. Unpreserved challenges to
the effectiveness of a lawyer are “limited to mistakes that are apparent on the record.” People v
Mack, 265 Mich. App. 122, 125; 695 NW2d 342 (2005).
B. ANALYSIS
The United States Supreme Court has held that juvenile offenders are less culpable than
adult offenders, and therefore, they are less deserving of the most severe punishments. Graham
v Florida, 560 U.S. 48, 68; 130 S. Ct. 2011; 176 L. Ed. 2d 825 (2010), and Roper v Simmons, 543
U.S. 551, 569; 125 S. Ct. 1183; 161 L. Ed. 2d 1 (2005). In Miller, 567 U.S. at 489, the Supreme
Court held that a mandatory sentence of life imprisonment without the possibility of parole for
juvenile offenders under the age of 18 convicted of murder constitutes cruel and unusual
punishment. In response to the Miller decision, our Legislature enacted MCL 769.25, which
applies to the sentencing of criminal defendants convicted of first-degree murder who were less
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than 18 years of age at the time the sentencing offense was committed. MCL 769.25(1). The
statute requires the prosecutor to file a motion if the prosecutor seeks imposition of a sentence of
life without the possibility of parole. MCL 769.25(3) – (6). If a motion is not filed, the trial
court is required to impose a maximum sentence of no more than 60 years and a minimum
sentence of “not less than 25 years or more than 40 years.” MCL 769.25(4) and (9). In this case,
the prosecutor did not request a life-without-parole sentence for Armour, who was 17 years old
at the time of the offense, and the trial court imposed a term-of-years sentence as required by
MCL 769.25(9).
Armour argues that the trial court erred by failing to consider the Miller factors when
imposing his term-of-years sentence. The trial court was required to consider the Miller factors
in the context of considering the attributes of defendant’s youth when balancing the sentencing
objectives of “(1) reformation of the offender, (2) protection of society, (3) punishment of the
offender, and (4) deterrence of others from committing like offenses.” People v Wines, ___
Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 336550), lv pending; slip op at 4,
quoting People v Snow, 386 Mich. 586, 592; 194 NW2d 314 (1972). Under Miller, the
sentencing court must consider:
(1) “[defendant’s] chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences”; (2)
“the family and home environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal or dysfunctional”; (3) “the
circumstances of the homicide offense, including the extent of his participation in
the conduct and the way familial and peer pressures may have affected him”; (4)
whether “he might have been charged [with] and convicted of a lesser offense if
not for incompetencies associated with youth—for example, his inability to deal
with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys”; and (5) “the possibility of
rehabilitation . . . .” [Skinner, ___ Mich at ___; slip op at 18-19, quoting Miller,
567 U.S. at 477-478.]
With respect to maturity, impetuosity, and ability to appreciate risks and consequences,
the trial court found that Armour demonstrated a perverse maturity and responsibility by
coordinating a plan with Stanton-Lipscomb and successfully carrying it out. The court compared
Armour to other 17-year-olds who demonstrate maturity and responsibility by holding down jobs
and attending college, and it found that Armour demonstrated similar goal-directed behavior.
Armour’s goal, however, was murder. Regarding the circumstances of the offense and Armour’s
participation, the court commented on the detailed plan to kill Lane, and noted that Armour
played his role by concealing the license plate, fleeing from the scene, and hiding the car. The
court found that Armour’s potential for rehabilitation was poor considering his juvenile record
and failure to benefit from rehabilitative efforts in the juvenile system.
Although the trial court did not expressly address the second factor, family and home
environment, it addressed the fourth factor, which assesses whether Armour was disadvantaged
by his youth and inexperience in his dealings with police officers, prosecuting attorneys, and his
own lawyer. The court found that Armour presented as shrewd and remorseless in his jail
telephone calls, in contrast to his psychological evaluations in which he presented as weak and
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pathetic. The court remarked that Armour was capable of misleading the evaluators to believe
that he was not fully responsible for giving in to Stanton-Lipscomb’s influence. The court found
that Armour was capable of managing his defense. Finally, the court also addressed the factors
of reformation of the offender, protection of society, punishment of the offender, and deterrence
of others. Wines, ___ Mich App at ___; slip op at 4. The court gave more weight to protecting
society from dangerous persons such as Armour than it gave to Armour’s poor prospects for
rehabilitation and reformation.
Accordingly, on this record, the court did not abuse its discretion by sentencing Armour
to 40 to 60 years, the maximum term-of-years sentence permitted under MCL 769.25(9). Unlike
the defendant in Wines who expressed remorse and attempted to make amends for his
participation in the robbery and murder Armour did not cooperate with the police, accept
responsibility, or acknowledge the wrongfulness of his conduct. See id. at 5. Further, unlike the
court in Wines, the trial court did not merely focus on the seriousness of the murder; it focused
on Armour’s voluntary decisions and actions. See id. Armour was committed to the gang
lifestyle. His participation in Lane’s murder was consistent with his past actions, his associations
with gang members, and his declarations on social media. Under these circumstances, Armour
has failed to demonstrate that his term-of-years sentence is disproportionate to “the
circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich. at 471.
Furthermore, the record does not support Armour’s claim of ineffective assistance.
Contrary to what Armour asserts, his lawyer submitted Armour’s psychological evaluations to
the trial court at sentencing, and he advocated for a 25-year minimum sentence, emphasizing that
Armour grew up in dysfunctional home and under traumatizing circumstances that skewed his
social and moral development. Armour does not cite any other evidence that he believes his
lawyer should have presented on his behalf. Accordingly, Armour has not established that he
was denied the effective assistance of counsel at sentencing.
Affirmed.
/s/ Michael J. Kelly
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
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