People of Michigan v. Gerran Dashawn McLaurin ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 7, 2016
Plaintiff-Appellee,
v No. 325780
Wayne Circuit Court
GERRAN DASHAWN MCLAURIN, LC No. 14-008140-FC
Defendant-Appellant.
Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of carjacking, MCL 750.529a;
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b;
assault with intent to do great bodily harm less than murder, MCL 750.84; and third-degree
fleeing or eluding a police officer, MCL 257.602a(3)(a). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 26 to 40 years for
the carjacking conviction, 5 to 20 years for the assault conviction, 2 to 10 years for the fleeing or
eluding conviction, and a consecutive two-year term of imprisonment for the felony-firearm
conviction. We affirm defendant’s convictions, but remand for further inquiry of defendant’s
sentences in accordance with this opinion.
I. SUBSTITUTION OF COUNSEL
Defendant first argues that the trial court erred in denying his second motion for
appointment of substitute defense counsel. We disagree. “A trial court’s decision regarding
substitution of counsel will not be disturbed absent an abuse of discretion.” People v Traylor,
245 Mich. App. 460, 462; 628 NW2d 120 (2001).
With respect to the substitution of an indigent defendant’s appointed counsel, this Court
has explained:
An indigent defendant is guaranteed the right to counsel; however, he is
not entitled to have the attorney of his choice appointed simply by requesting that
the attorney originally appointed be replaced. Appointment of a substitute
counsel is warranted only upon a showing of good cause and where substitution
will not unreasonably disrupt the judicial process. Good cause exists where a
legitimate difference of opinion develops between a defendant and his appointed
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counsel with regard to a fundamental trial tactic. [Id. (citation and quotation
marks omitted).]
“A defendant may not purposely break down the attorney-client relationship by refusing to
cooperate with his assigned attorney and then argue that there is good cause for a substitution of
counsel.” Id. (citation and quotation marks omitted). “Further, [a] defendant’s mere allegation
that he lacked confidence in his trial counsel is not good cause to substitute counsel.” Id. at 463.
“When a defendant asserts that the defendant’s assigned attorney is not adequate or diligent, or is
disinterested, the trial court should hear the defendant’s claim and, if there is a factual dispute,
take testimony and state its findings and conclusion on the record.” People v Bauder, 269 Mich
App 174, 193; 712 NW2d 506 (2005), overruled in part on other grounds in People v Burns, 494
Mich. 104, 112-113; 832 NW2d 738 (2013).
The trial court previously appointed substitute defense counsel in October 2014. At a
final pretrial conference on Friday, December 5, 2014, three days before trial was scheduled to
begin, defendant’s second appointed counsel informed the trial court of his belief that defendant
lacked confidence in him, in part because of counsel’s inability to arrange a plea offer that was
acceptable to defendant. Defendant stated:
I asked him and my last attorney numerous times to fill out motions for me that . .
. haven’t got [sic] done. And I asked them things about my case that they haven’t
or couldn’t tell me about . . . .
Neither one of them feels like they can fight for my life. This is my life on
the line and I feel that they [are] not fighting for me. And I need somebody
that . . . I feel like they can fight for my life like it’s theirs on the line.
The trial court denied the motion for substitute counsel, stating:
I would indicate . . . that this is your second request for an attorney. There
is in the court file a written request that you gave me sometime ago during the
pendency of this case before this Court in which you indicated that your prior
counsel . . . did not have, in your words, the heart in representing you in your
case.
You indicated that she was not taking your case seriously, that she was not
working with you and that she was working against you. That’s a letter that you
had written to me sometime ago during this case.
Based on that representation, you were brought before the Court. I heard
your arguments, which were consistent with your letter and very similar to what
I’ve just heard today. And although probably not required, I gave you the benefit
of the doubt and I appointed you new counsel—Mr. Brown, very experienced
attorney here before this Court. And . . . when I did that, I told you that it was
likely to be the only appointment I would make, and that this was not going to be
a revolving door of attorneys requested by you. And I believe you agreed on the
record.
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Having said that, we were here earlier this week at which time, . . . this
issue was addressed with regard to what the plea offer was or was not and there
was some dispute about or some misunderstanding about what the offer was. And
I specifically recall you indicating is there a way we can push this back, meaning
is there a way we can push this trial back. And I believe either your counsel or
myself said no that’s not gonna happen.
It’s interesting that only a couple days after that and you have not gotten a
more favorable offer here, that . . . now . . . there has been in the last couple days
a breakdown sufficient that you’re asking for a new attorney. . . . [S]o just
factually I think that that needs to be clear.
And the only thing I’ve heard in terms of the basis for that is essentially
the same argument that you had made about your prior counsel; that essentially
you don’t think that the attorney has your best interest at mind, in heart because
they’re doing what any good attorney would do is trying to get you the most
options available to you.
Certainly you have the right to a trial, which I’m sure you’re going to be
exercising, but the alternative is to make sure that you have an informed decision
made. And the way you get an informed decision is finding out the pros and cons
of going to trial, which Mr. Brown has provided to you, and then compare that
with the best offer you can get from the prosecution, which Mr. Brown has
worked hard to obtain, including speaking to the prosecution’s supervisor.
***
. . . Here, I’ve heard argument that simply you don’t think Mr. Brown has
your best interests at . . . heart, because he’s tried to get you the best possible plea
offer available.
Now it’s your decision whether to accept the plea or not, but Mr. Brown,
like any good attorney, is gonna try to give you the best options . . . . And he’s
worked hard to give you those options, but apparently . . . you think he does not
have your best interest at heart because he must think you’re guilty because he’s
trying to get you a good deal from the prosecution . . . .
The record amply supports the trial court’s conclusion that defendant failed to
demonstrate good cause for a second substitution of trial counsel. Defendant made only general
complaints that defense counsel was unprepared for trial and failed to communicate with
defendant. Traylor, 245 Mich. App. at 462-463. Defendant offered nothing to substantiate that he
and defense counsel had a legitimate difference of opinion regarding any specific fundamental
trial tactic, or that defense counsel otherwise performed inadequately, lacked in diligence, or
exhibited disinterest in his case. People v Mack, 190 Mich. App. 7, 14; 475 NW2d 830 (1991);
People v Meyers (On Remand), 124 Mich. App. 148, 166; 335 NW2d 189 (1983).
The record also amply supports the trial court’s implicit conclusion that defendant’s
second substitution of counsel, only three days before trial, would unreasonably disrupt the
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judicial process. Traylor, 245 Mich. App. at 462. As the trial court found, defendant made some
of the same arguments in support of his motion to substitute his first defense counsel, and
defendant also had recently mentioned a trial adjournment.
Accordingly, the trial court did not abuse its discretion in denying defendant’s second
request for substitute counsel.
II. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that defense counsel was ineffective for failing to call an expert
witness to challenge the reliability of the eyewitness identification testimony. “Because a
Ginther[1] hearing was not conducted, [the Court’s] review of the relevant facts is limited to
mistakes apparent on the existing record.” People v Riley (After Remand), 468 Mich. 135, 139;
659 NW2d 611 (2003). The existing record includes defendant’s motion for a new trial, in
which he maintained that trial counsel should have presented expert testimony concerning
eyewitness identification.
Whether a defendant has received the effective assistance of counsel comprises a mixed
question of fact and law. People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002). A
judge finds the facts and then decides whether those facts amount to a violation of the
defendant’s constitutional right to the assistance of counsel. Id. “[T]he right to counsel is the
right to the effective assistance of counsel.” United States v Cronic, 466 U.S. 648, 654; 104 S. Ct.
2039; 80 L. Ed. 2d 657 (1984) (citation omitted). In Strickland v Washington, 466 U.S. 668, 687;
104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984), the United States Supreme Court held that a convicted
defendant’s claim of ineffective assistance of counsel includes two components: “First, the
defendant must show that counsel’s performance was deficient . . . . Second, the defendant must
show that the deficient performance prejudiced the defense.” To establish the first component, a
defendant must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. People v Solmonson, 261 Mich. App. 657,
663; 683 NW2d 761 (2004). With respect to the prejudice aspect of the test for ineffective
assistance, the defendant must demonstrate a reasonable probability that, but for counsel’s errors,
the result of the proceedings would have differed. Id. at 663-664. The defendant must overcome
the strong presumptions that “counsel’s conduct falls within the wide range of professional
assistance,” and counsel’s actions represented sound trial strategy. Strickland, 466 U.S. at 689.
This Court may not “substitute [its] judgment for that of counsel on matters of trial strategy, nor
will [it] use the benefit of hindsight when assessing counsel’s competence.” People v Payne,
285 Mich. App. 181, 190; 774 NW2d 714 (2009) (citation and quotation marks omitted).
In People v Cooper, 236 Mich. App. 643, 658; 601 NW2d 409 (1999), this Court rejected
a defendant’s contention that defense counsel was ineffective for neglecting to call as a defense
witness an eyewitness identification expert, explaining:
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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Defendant also argues that trial counsel provided ineffective assistance by
failing to present expert psychological testimony about how the circumstances of
the incident could have impaired McGinnis’ perception, memory, and ability to
recognize the shooter. Trial counsel’s conduct in this regard is presumed to be a
permissible exercise of trial strategy. Defendant has not overcome that
presumption. Throughout his cross-examination of McGinnis, trial counsel
elicited apparent discrepancies and arguable bases for regarding McGinnis’
identification of defendant as the shooter to be suspect. Trial counsel may
reasonably have been concerned that the jury would react negatively to perhaps
lengthy expert testimony that it may have regarded as only stating the obvious:
memories and perceptions are sometimes inaccurate.
In the present matter, the trial court denied defendant’s motion for a new trial based upon
trial counsel’s failure to call an eyewitness identification expert, stating:
Defendant fails to show how his counsel’s failure to call an expert witness
to testify about the fallibility of eyewitness identification and testimony would
have resulted in a different outcome at trial. There were two witnesses who
identified the defendant as the person who shot and carjacked the complaining
witness in this case. The defendant was found shortly after the carjacking driving
the complainant’s car and was involved in a high-speed chase with the police.
The eyewitness’ testimony was in support of the fact that they saw the
defendant in broad daylight carjack the complaining witness. Further, they
testified that they identified him as I mentioned at a lineup.
Defendant fails to cite any legal authority that would require a trial
attorney to call an expert witness. Therefore, for all of these reasons I am finding
that the defendant fails to demonstrate that the potential testimony of an expert
eyewitness evaluator would have changed the outcome in this trial. Therefore, he
fails to demonstrate prejudice . . . .
Defense counsel began his cross-examination of the first eyewitness to testify, Cheryl
Harrison, by questioning her in a prolonged manner regarding her knowledge of the direction the
assailant had driven the victim’s SUV out of the store parking lot, and the direction the victim
had laid in the parking lot. Defense counsel also questioned Harrison about other topics in a
manner that “elicited apparent discrepancies and arguable bases for regarding [her eyewitness]
identification of defendant as the shooter to be suspect,” Cooper, 236 Mich. App. at 658,
including: (1) where another eyewitness, Mark Saunders, parked in the store parking lot; (2) her
estimation of the distance between her parking spot and the victim’s SUV; (3) her position inside
Saunders’s truck when she first heard a loud argument; (4) the order of things she heard and saw
near the victim’s car; (5) her trial identification of defendant on the basis of his eyes, face, and
hair; (6) her statement to the police on August 20, 2014, describing the assailant as a light-
complected African-American man between 25 and 30 years of age, approximately 5’6” tall,
weighing between 155 and 165 pounds, wearing an orange T-shirt and tan pants, and holding a
silver handgun; (7) her failure to mention to the police on August 20, 2014, anything about the
assailant’s beady eyes, or the assailant wearing anything on his head; (8) her decision to continue
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walking toward the dispute after allegedly seeing the assailant holding a gun; (9) whether she
had seen defendant immediately before the August 21, 2014 lineup; (10) whether police officers
had suggested defendant might be in the lineup; (11) on August 21, 2014, she made another
statement to the police describing the assailant as between 20 and 25 years of age, having a
medium build and an unkempt beard or goatee, wearing an orange or red T-shirt and light-
colored pants, and holding a small-caliber silver handgun; (12) whether she and Saunders had
discussed the assailant’s August 20, 2014 appearance and their recollections of the events that
day; (13) her inability at trial to recall the manner in which the assailant wore his hair on August
20, 2014; and (14) on August 20, 2014, she had felt more focused on the handgun than the
assailant’s facial features and clothing.
Defense counsel similarly cross-examined the victim concerning: (1) his inability to
identify defendant in a lineup; (2) the location where he parked his SUV on August 20, 2014; (3)
that he did not see every moment of the assailant’s assault because he had periodically turned his
back toward the assailant; (4) the victim feared for his personal safety; and (5) the victim
testified that his assailant had very piercing eyes, but during the victim’s statements to the police,
he did not mention the assailant’s eyes.
Defense counsel also questioned Saunders, including with respect to: (1) Saunders’s
belief that before he and Harrison got out of his truck, the nearby gunshot had occurred; (2)
Saunders did not approach the victim until the assailant had driven away the victim’s SUV; (3) in
Saunders’s statement to the police, he described the assailant as having a light complexion,
wearing a hat or hood, dark pants, and holding a black automatic handgun; (4) Saunders did not
remember the assailant having facial hair; and (5) Saunders’s estimation of the precise locations
of his truck and the victim’s SUV in the parking lot, and the distances from which he made his
observations on August 20, 2014.
Defense counsel cross-examined the officer who arrested defendant, Kevin Briggs,
including with respect to: (1) Briggs’s estimation that by the time he turned his police car
around to pursue defendant on Burns Avenue, the SUV “had [more than] a . . . quarter mile lead
on” Burns; (2) during the pursuit, darkness had started to descend; (3) the vehicle headlights
allowed Briggs to see defendant driving the SUV when it passed Briggs on Burns Avenue; (4)
when passing the SUV, Briggs also saw a dark-complected African-American in the front
passenger seat; (5) Briggs described his first sighting of defendant as revealing a light-
complected African-American man in his early 20’s, who wore a moustache; (6) Briggs did not
remember seeing defendant wearing a hat or a hood; (7) on first seeing the SUV after it crashed,
Briggs walked in front of the SUV and saw more than one person trying to get out of it; (8) after
the crash, Briggs saw that the passenger had gotten out and was arrested by another officer, and
defendant “ran out of the side passenger door and took off running on foot”; (9) defendant wore
a red T-shirt and black pants, stood approximately 5’10”, and reported his own weight as 167
pounds; and (10) Briggs did not locate any physical evidence connecting defendant to the
carjacking.
Defense counsel also cross-examined the police officer in charge of the investigation,
Earl Monroe, including regarding: (1) Monroe’s inability to identify defendant or discern a
shooting in a surveillance video; (2) Monroe had not received any physical evidence connecting
defendant to the carjacking, including fingerprints, a handgun, or ammunition; (3) although
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Harrison described the assailant’s handgun as silver, the victim and Saunders described it as
black; (4) Monroe gave defendant a white T-shirt to wear during the August 21, 2014 lineup,
instead of his red T-shirt; and (5) Monroe did not document in a report his discussion with the
victim after his viewing of a lineup, when the victim had mentioned that he had not gotten a
good view of defendant’s eyes during the lineup, but the victim thought defendant had been in
the lineup.
The record thus reveals that defense counsel thoroughly cross-examined all of the
prosecutor’s witnesses. Furthermore, defense counsel’s objection convinced the trial court to
refuse to admit a cell phone that the police recovered inside the victim’s SUV, which allegedly
contained photographs of defendant. Defense counsel also called a police officer, who first saw
a person he suspected was defendant at night, from a block away, and through binoculars, but the
officer did not see defendant get out of the victim’s SUV after it crashed. During closing
argument, defense counsel consistently and vigorously presented the defense theory that
defendant was misidentified as a participant in the carjacking. Defense counsel argued that the
witnesses had mistakenly identified defendant, in light of the absence of surveillance video
depicting defendant and the victim, the police failure to locate any fingerprints, ammunition, or a
handgun tying defendant to the charges, and the differences in the witnesses’ vantage points of
the event, and different descriptions of defendant and the charged events. And, defense counsel
alternatively argued that if the jury believed defendant was the victim’s assailant, defendant did
not intend to kill the victim. We conclude that defense counsel chose a reasonable trial strategy
in cross-examining the prosecutor’s witnesses to cast doubt on their identifications of defendant,
instead of resorting to an expert identification witness. Strickland, 466 U.S. at 689; Cooper, 236
Mich. App. at 658.
Even assuming that defense counsel could be considered ineffective for not calling an
eyewitness identification expert, we conclude that defendant did not endure any prejudice.
Solmonson, 261 Mich. App. at 663-664. In light of defense counsel’s diligent efforts to cast doubt
on the identifications by the prosecutor’s witnesses, we cannot conclude that the lack of an
eyewitness identification expert deprived defendant of a substantial defense. People v Marshall,
298 Mich. App. 607, 612; 830 NW2d 414 (2012) (describing a substantial defense as one “that
might have made a difference in the outcome of the trial”), vacated in part on other grounds 493
Mich. 1020 (2013).
III. SCORING OF OFFENSE VARIABLES 4 AND 9
Defendant argues that resentencing is required because the evidence did not support the
trial court’s assessment of 10 points each for offense variables 4 and 9. We disagree.
In People v Steanhouse, 313 Mich. App. 1, 18; ___ NW2d ___ (2015), lv gtd __Mich__
(docket no. 152671) (May 25, 2016), this Court set forth the following standards for review of
scoring decisions:
The circuit court’s factual determinations are reviewed for clear error and
must be supported by a preponderance of the evidence. Whether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
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application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo. [Citation and quotation marks omitted.]
MCL 777.34(1)(a) authorizes a court to assess 10 points for OV 4 if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” This Court has
“upheld a trial court’s assessment of 10 points for OV 4 where the victim suffered personality
changes, anger, fright, or feelings of being hurt, unsafe, or violated.” People v Schrauben, ___
Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 323170); slip op at 7.
The trial court explained that OV 4 was properly scored at 10 points in this matter,
stating:
Here, the Court had the benefit of presiding over the trial at which time the
complaining witness testified that after the defendant threatened him and
demanded his keys, and the complainant did not immediately comply, the
defendant shot the complainant in the leg. While on the ground, the complainant
threw the keys at the defendant. The defendant continued to stand over the
complainant wagging his gun in the complainant’s face.
Complainant further testified that he begged that the defendant not shoot
him again and believed that he was going to be shot and killed. He rolled over,
covered his head and face preparing to be shot again. He, according to his
testimony, thought he was going to die.
Although maybe not readily apparent from the transcript, this Court also
observed the demeanor and behavior of the complainant while testifying. He was
emotional both . . . during his testimony as well as sentencing. And for all of
these reasons, I do believe that the Court properly scored Offense Variable 4 as 10
points for psychological injury requiring professional treatment to the victim.
The victim testified that defendant had pulled on his shirt from behind, the victim turned
to face defendant, and defendant placed a gun against the victim’s chest. Defendant threatened,
“This is a real gun,” “This is a carjacking,” and “[G]ive me the keys.” The victim also testified
that he had tried pushing defendant’s gun away from him, while saying, “Get this gun away from
me. Don’t kill me. Don’t shoot me.” The victim turned his body into defendant, continued
struggling, and felt a gunshot, which the victim likened to a hammer striking his leg. The victim
then faced defendant, and announced, “You shot me,” “Don’t do it again. Don’t shoot me.
Don’t shoot me.” The victim remembered that defendant had pointed the gun at his face, which
prompted the victim to give defendant the SUV keys. The victim also recalled that he fell
backward onto the ground, defendant stood over him, defendant pointed the gun at his head, the
victim rolled onto his side and covered his face, and the victim “lost it” because he thought
defendant would shoot him again. At the sentencing hearing, the victim added that he and many
residents of Detroit had experienced carjacking, which the victim described as “a type of urban
terrorism that can reach out and grab them at any time,” and caused them to “liv[e] in constant
fear.” In light of the victim’s testimony that defendant placed him in fear for his life and the
victim’s statement at sentencing about living in constant fear, the trial court did not clearly err in
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finding that the victim suffered a serious psychological injury requiring professional treatment.
Therefore, the trial court did not err in assessing 10 points for OV 4.
MCL 777.39(1)(c) authorizes a court to assess 10 points for OV 9 if “[t]here were 2 to 9
victims who were placed in danger of physical injury or death.” A sentencing court may score
OV 9 “only on the basis of the defendant’s conduct during the sentencing offense,” and may not
“consider conduct after an offense has been completed.” People v Gratsch, 299 Mich. App. 604,
623; 831 NW2d 462 (2013) (citation and quotation marks omitted), vacated in part on other
grounds 495 Mich. 876 (2013).
In MCL 750.529a(1), the Legislature defined one who is guilty of the felony of
carjacking as follows:
A person who in the course of committing a larceny of a motor vehicle
uses force or violence or the threat of force or violence, or who puts in fear any
operator, passenger, or person in lawful possession of the motor vehicle, or any
person lawfully attempting to recover the motor vehicle.
The phrase “in the course of committing a larceny of a motor vehicle” includes “acts that occur
in an attempt to commit the larceny, or during the commission of the larceny, or in flight or
attempted flight after the commission of the larceny, or in an attempt to retain possession of the
motor vehicle.” MCL 750.529a(2). At sentencing, the trial court explained its decision to assess
10 points for OV 9 as follows:
I am gonna score 10 points for OV 9 for the following reasons. The Court
heard testimony from two civilian witnesses who were exiting the vehicle at the
time of this . . . confrontation.
At the time that this took place, it was in broad daylight in a public
parking lot with people coming and going, including the two civilian witnesses
who were getting out of the car during this confrontation. The defendant
discharged his firearm in a public parking lot with people around, not just placing
the complaining witness[’s] . . . life in jeopardy, but also any other civilian who
was nearby, including the two civilian witnesses who were only a matter of feet
away.
After defendant filed a postsentencing motion again challenging the scoring of OV 9, the
trial court further explained why it believed that 10 points were properly scored for OV 9:
I do find that Offense Variable 9 was properly scored as 10 points for two
reasons. First, I do find that discharging a firearm in a parking lot open to the
public in the middle of the day into someone’s body who is lying on the ground
creates a substantial danger to anyone else at least in that same parking lot. Here,
we do have the two witnesses, at the very least, who were in the parking lot at the
time; not to mention brandishing that same firearm at the complainant in a
parking lot off . . . Jefferson, middle of the day certainly created a substantial risk
to anyone within that same parking lot at least . . . .
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Further, I do and am now considering the conduct of the defendant leaving
the scene of the carjacking parking lot. Having been on a public road at a high
rate of speed, jumping a curb onto . . . Jefferson, one of the busiest streets in the
City of Detroit, in the middle of the day without any regard to the people either
within the parking lot or people into . . . Jefferson, I do find that that also exposed
people within the parking lot and on . . . Jefferson to a substantial risk of or
danger of physical injury . . . .
In light of the evidence that defendant placed at risk of physical injury or death the
victim, witnesses Harrison, and Saunders, who were in reasonably close proximity in the parking
lot when defendant shot the victim, and the evidence reasonably establishing at trial that placed
at least one pursuing police officer in danger of personal injury during his flight from the
carjacking scene, we conclude that the trial court correctly scored OV 9 at 10 points. See People
v Mann, 287 Mich. App. 283, 286-288; 786 NW2d 876 (2010) (holding that in light of the
statutory definition of armed robbery as encompassing conduct that occurs in the course of
committing the robbery, including “flight or attempted flight after the completion of the
larceny,” (MCL 750.530, MCL 750.529) the trial court properly scored 10 points for OV 9 on
the basis of the defendant’s commission of a second crime in flight from an armed robbery).
IV. JUDICIAL FACT-FINDING AT SENTENCING
Defendant further challenges his sentence as violative of his right to a jury trial.
Defendant preserved this issue by arguing in his postsentencing motion that judicial fact-finding
at sentencing violated his right to a jury trial. People v Terrell, 312 Mich. App. 450, 455; ___
NW2d ___ (2015). “A Sixth Amendment challenge presents a question of constitutional law that
this Court reviews de novo.” People v Lockridge, 498 Mich. 358, 373; 870 NW2d 502 (2015).
In Lockridge, 498 Mich. at 364, our Supreme Court held that “the rule from Apprendi v
New Jersey, 530 U.S. 466; 120 S. Ct. 2348; 147 L. Ed. 2d 435 (2000), as extended by Alleyne v
United States, 570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013), applies to Michigan’s
sentencing guidelines and renders them constitutionally deficient,” in violation of the Sixth
Amendment, to the extent that they “require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables (OVs) that mandatorily increase the
floor of the guidelines minimum sentence range . . . .” To remedy this violation, the Court
severed MCL 769.34(2) to the extent that it makes a sentencing guidelines range based on judge-
found facts mandatory, and held that a guidelines range calculated in violation of Apprendi and
Alleyne is advisory only. Lockridge, 498 Mich. at 364-365.
The Lockridge Court explained that where facts admitted by the defendant or found by
the jury are insufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he was sentenced, an
unconstitutional constraint will have actually impaired the defendant’s Sixth Amendment right.
Id. at 395. The Court further held that “in cases in which a defendant’s minimum sentence was
established by application of the sentencing guidelines in a manner that violated the Sixth
Amendment, the case should be remanded to the trial court to determine whether that court
would have imposed a materially different sentence but for the constitutional error.” Id. at 397.
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This remand procedure was modeled on the procedure adopted in United States v Crosby, 397
F3d 103 (CA 2, 2005). Lockridge, 498 Mich. at 395-396.
In People v Stokes, 312 Mich. App. 181, 197-198; 877 NW2d 752 (2015), lv pending, this
Court observed that whereas Lockridge involved an unpreserved error subject to review for plain
error affecting substantial rights, the defendant in Stokes, like defendant in this case, had
preserved his claim of error under Alleyne. This Court held that a preserved Alleyne/Lockridge
error must be reviewed to determine if it qualifies as harmless beyond a reasonable doubt.
Stokes, 312 Mich. App. at 198-199; Terrell, 312 Mich. App. at 455. This Court further held that
“in order to determine whether the error . . . was harmless, the Crosby remand procedure
[adopted in Lockridge] must be followed.” Stokes, 312 Mich. App. at 198-199.
The parties do not dispute that carjacking qualifies as a class A offense, MCL 777.16y,
subject to the sentencing grid that appears in MCL 777.62. The parties also do not dispute that in
sentencing defendant, the trial court scored a total of 90 OV points, placing defendant in OV
Level V (80 – 99 points), and that defendant received a prior record variable (PRV) score of 60
points. The parties agree that in ruling on defendant’s postsentencing motion, the trial court
correctly subtracted 10 points that it had improperly scored for OV 10, reducing defendant’s total
OV score to 80 points, but not requiring resentencing because defendant still occupied OV level
V. And, the parties agree that the trial court enhanced defendant’s sentence as a fourth-offense
habitual offender, which increased his guidelines range to 171 to 570 months. MCL
777.21(3)(c); MCL 777.62.
Defendant argues, and the prosecutor concedes, that the trial court’s scoring of OVs 1, 3,
4, 9, and 13 required judicial fact-finding, and thereby increased defendant’s guidelines range
from 108 to 360 months to 171 to 570 months as a fourth-offense habitual offender. Because
judicial fact-finding increased defendant’s minimum sentence range, defendant has demonstrated
that an unconstitutional constraint actually impaired his Sixth Amendment right. Lockridge, 498
Mich. at 395. Therefore, we remand for further inquiry of defendant’s sentences in accordance
with the procedure set forth in Lockridge, id. at 396-399. On remand, defendant must be given
the option of promptly notifying the trial judge that resentencing will not be sought. If
notification is not received in a timely manner, the trial court shall continue with the proceeding.
If the trial court determines that it would have imposed the same sentence absent the
unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however,
the trial court determines that it would not have imposed the same sentence absent the
unconstitutional constraint on its discretion, it shall resentence defendant. Id.
V. STANDARD 4 BRIEF2
Lastly, in a pro se supplemental brief filed pursuant to Supreme Court Administrative
Order No. 2004-6, Standard 4, defendant argues that his out-of-court identifications by Harrison
and Saunders were tainted by unduly suggestive pretrial identification procedures, and that
defense counsel was ineffective for failing to seek a pretrial hearing to determine the
2
Michigan Supreme Court, Administrative Order, 2004-6, Standard 4
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constitutionality of the identifications. Defendant did not challenge the witnesses’ identification
in the trial court, leaving this issue unpreserved and subject to review for plain error affecting his
substantial rights. People v King, 297 Mich. App. 465, 472-473; 824 NW2d 258 (2012).
Similarly, review of defendant’s ineffective assistance of counsel claim is limited to mistakes
apparent from the record. Riley (After Remand), 468 Mich. at 139.
To challenge an in-court identification “on the basis of lack of due process, a defendant
must show that the pretrial identification procedure was so suggestive in light of the totality of
the circumstances that it led to a substantial likelihood of misidentification.” People v Williams,
244 Mich. App. 533, 542; 624 NW2d 575 (2001) (citation and quotation marks omitted).
[T]he factors to be considered in evaluating the likelihood of misidentification
include the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the witness at
the confrontation, and the length of time between the crime and the confrontation.
[People v Kurylczyk, 443 Mich. 289, 306; 505 NW2d 528 (1993) (citation and
quotation marks omitted).]
“If the trial court finds that the pretrial procedure was impermissibly suggestive, evidence
concerning the identification is inadmissible at trial . . . [unless] an independent basis for in-court
identification can be established” that qualifies as “untainted by the suggestive pretrial
procedure.” Id. at 303 (citation and quotation marks omitted).
The record does not disclose any evidence suggesting that Harrison’s or Saunders’s trial
identifications of defendant arose from an unduly suggestive pretrial identification procedure.
Harrison and Saunders testified that in daylight on August 20, 2014, they saw defendant in the
same store parking lot where Saunders had just parked with Harrison inside his truck. The
attention of Harrison and Saunders was drawn to an SUV parked approximately 20 feet away in
the same lot, where they heard the sounds of a struggle and yelling. Harrison testified that she
had approached the SUV, had seen the victim and defendant wrestling, and heard defendant
threaten to shoot the victim if he did not give defendant his SUV keys. Saunders explained that
he saw defendant through the back window of his truck, but had an unimpeded view. Harrison
and Saunders similarly described defendant’s basic appearance: a young African-American man,
between 20 and 30 years of age, with a medium build, and who possessed a handgun during the
assault. They differed with respect to whether defendant had worn a hat or hood, an orange or a
red T-shirt, black or brown pants, or had any facial hair, but those discrepancies affect only the
weight of their identification testimony, not its admissibility. People v Davis, 241 Mich. App.
697, 705; 617 NW2d 381 (2000). The lineup attended by Harrison and Saunders occurred one
day after the crime. The testimonies of Harrison, Monroe, and Saunders reflected that they
identified defendant promptly and with certainty.
The only evidence that defendant cites purportedly casting doubt on the identifications by
Harrison and Saunders consists of his own December 9, 2015 affidavit. In the affidavit,
defendant maintains:
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2. That I informed trial counsel Mark Brown that on 8/21/14, at Detroit
Detention Center (Mound), witness Cheryl Harrison was brought to the bullpen
by Detroit Police Officer Lawrence Mitchel, and pointed me . . . out, stating that I
was perpetrator of said crimes.
This attestation contradicts the evidence at trial. Harrison, Monroe, and Saunders agreed that
Officer Lawrence Mitchel only escorted Harrison and Saunders to and from the lineup room.
Harrison, Monroe, and Saunders likewise agreed that no one had prompted Harrison’s and
Saunders’s identifications of defendant. And Monroe testified that the lineup participants could
not see the other people in the lineup room.
We also note that defendant offers no factual substantiation for his argument that an
attorney present at the lineup “was functioning as defendant’s counsel, or the prosecutor,” or that
a reasonable possibility exists that “defendant’s constitutional rights were not protected.” Payne,
285 Mich. App. at 195 (declining to consider a factually unsupported appellate argument). The
testimony of Harrison, Saunders, and Monroe established that the lineup attorney attended the
lineups only to protect defendant’s rights. No evidence indicated that the attorney failed to
protect defendant’s rights during the lineup. Defense counsel noted, in his closing argument, that
the attorney was a former prosecutor.
In sum, the record does not support defendant’s claim that a reasonable likelihood of
suggestion existed during Harrison’s and Saunder’s August 21, 2014 identifications of
defendant. Because no likelihood of misidentification existed, defense counsel was not
ineffective for failing to make a meritless objection to Harrison’s and Saunders’s identification
testimony. People v Mack, 265 Mich. App. 122, 130; 695 NW2d 342 (2005).
We affirm defendant’s convictions and remand for further inquiry of defendant’s
sentences in accordance with Lockridge. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
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