People of Michigan v. Antoine Terrance Simmons ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 10, 2020
Plaintiff-Appellee,
v No. 347853
Wayne Circuit Court
ANTOINE TERRANCE SIMMONS, LC No. 18-007210-01-FC
Defendant-Appellant.
Before: MURRAY, C.J., and K. F. KELLY and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of armed robbery, MCL 750.529;
possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL
750.227b(1); and possession of a firearm by a convicted felon (felon-in-possession), MCL
750.224f. Defendant was sentenced, as a third-offense habitual offender, MCL 769.12, to 160
months to 40 years’ imprisonment for his armed robbery conviction, five years’ imprisonment for
his felony-firearm conviction, and 5 to 10 years’ imprisonment for his felon-in-possession
conviction. We affirm.
I. GREAT WEIGHT OF THE EVIDENCE
Defendant argues that his convictions are against the great weight of evidence. A new trial
may be granted if the verdict is against the great weight of the evidence. MCR 2.611(A)(1)(e).
“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.” People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003).
Determining whether a verdict is against the great weight of the evidence requires review of “the
whole body of proofs, which necessarily includes an evaluation of the credibility of the witnesses.”
People v Lemmon, 456 Mich 625, 638-639; 576 NW2d 129 (1998) (quotation marks and citation
omitted). A verdict is against the great weight of the evidence “only when the evidence does not
reasonably support it and it was more likely the result of causes outside the record, such as passion,
prejudice, sympathy, or some other extraneous influence.” People v Lacalamita, 286 Mich App
467, 469; 780 NW2d 311 (2009).
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A request for new trial that is based solely on the weight of the evidence regarding witness
credibility is not favored, and should be granted only with great caution and in exceptional
circumstances. Lemmon, 456 Mich at 639 and n 17. If the issue involves credibility and there is
conflicting evidence, the question of credibility ordinarily should be left for the fact-finder. Id. at
642-643. Conflicting testimony, even if impeached to some extent, is not a sufficient ground for
granting a new trial. People v McCray, 245 Mich App 631, 638; 630 NW2d 633 (2001). A narrow
exception exists when testimony contradicts “indisputable physical facts or laws” or “defies
physical realities.” Lemmon, 456 Mich at 643-644 (quotation marks and citation omitted).
The essential elements of armed robbery include (1) the use of force or violence, during
the course of committing a larceny, to assault any person present or put the person in fear, while
(2) the defendant possessed a dangerous weapon, possessed an object used or fashioned to make a
person reasonably believe it was a dangerous weapon, or represented orally or otherwise that he
had a dangerous weapon. People v Muhammad, 326 Mich App 40, 61; 931 NW2d 20 (2018).
“The elements of felony-firearm are that the defendant possessed a firearm during the commission
of, or the attempt to commit, a felony.” Id. (quotation marks and citation omitted). The essential
elements of felon-in-possession include “(1) the defendant is a felon who possessed a firearm (2)
before his right to do so was formally restored under MCL 28.424.” People v Bass, 317 Mich App
241, 268; 893 NW2d 140 (2016). Further, “[i]t is well settled that ‘identity is an element of every
offense.’ ” People v Savage, 327 Mich App 604, 614; 935 NW2d 69 (2019), quoting People v
Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
Defendant does not challenge any particular element of the crimes he was convicted of, but
rather, only challenges his identity as the perpetrator. The trial court properly weighed the victim’s
testimony and identification of defendant with all of the evidence presented to support its verdict.
Defendant argues that the verdict was against the great weight of the evidence because of the
unreliability of the victim’s in-court identification and the trial court’s over reliance on the victim’s
testimony to convict defendant. To support his argument, defendant points to the poor conditions
under which the victim observed her assailant, i.e., the dark street, brief interaction, and the
victim’s focus on the gun. As a result, defendant contends that the trial court heavily relied on the
victim’s testimony to convict him while ignoring the problems with her identification. Defendant
points to his own testimony to explain his proximity to the incident and how the victim’s
belongings ended up in the Impala. However, even though the incident occurred at night and in a
short period of time, the victim testified positively and certainly regarding defendant’s identity as
the man who stopped her at gunpoint, testifying “that’s him all day long.” Further, the victim’s
testimony was corroborated with much of the evidence presented at trial.
First, defendant’s girlfriend loaned the Impala to defendant at about 11:00 p.m. the night
the incident occurred. Two hours later, officers discovered the Impala parked on West Longwood,
containing the victim’s personal belongings taken during the incident. Fingerprint evidence placed
defendant in the Impala. Defendant confirms that he drove the Impala the night of the incident,
but argues that he has no knowledge of how the victim’s personal belongings ended up in the
Impala, and instead points to Gary Ellison as the perpetrator because the victim’s handgun was
discovered in Ellison’s house. Defendant also insinuates that his cousin was responsible for the
victim’s belongings being in the Impala. However, the fingerprints of neither Ellison nor
defendant’s cousin were found on the Impala. Moreover, the victim did not identify Ellison as one
of the men that robbed her in a live lineup at the police station.
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Second, when defendant went to West Longwood in the Toyota, he sent his cousin to ask
police to get the Impala instead of going himself; and when his cousin was speaking to Officer
Joseph Weaver about the Impala, defendant left the scene. A trier of fact could reasonably interpret
defendant’s conduct as an attempt to evade the police and reclaim the Impala before evidence of
the crime was discovered.
Third, the data collected from defendant’s cell phone largely discounts defendant’s
testimony and alleged alibi. The GPS data for defendant’s cell phone placed him near the incident
at about 12:30 a.m., and placed him on West Longwood at about 1:45 a.m. Defendant testified
that he was not involved in the incident because he misplaced his cell phone after leaving a
relative’s house located a mile from the incident at about 12:20 a.m. until 1:30 a.m., when his
cousin returned his cell phone. However, defendant’s phone records showed eight phone calls
with Celia Dickerson between 12:16 a.m. and 2:26 a.m. Defendant claimed that he does not know
anyone named Celia Dickerson, and maintains that his cousin made these calls from defendant’s
cell phone. Notably, five of the eights calls were made when defendant asserted having his cell
phone, including four calls after defendant was at West Longwood. As a result, the continued calls
to a person defendant does not know after he allegedly got his phone back from his cousin casts
doubt as to whether defendant coincidentally misplaced his phone for the 50 minutes when the
incident occurred. Therefore, a trier of fact could reasonably conclude that defendant’s testimony
that he did not possess his cell phone when it was tracked near the armed robbery incident was not
credible.
The trial court weighed the victim’s identification and testimony against all of the evidence,
including defendant’s testimony, and concluded, on the basis of its interpretation of all the
witnesses’ words, “tonal quality, volume, speech patterns, and demeanor,” that the victim was
credible whereas defendant was not credible. Lemmon, 456 Mich at 646. The evidence presented
by the prosecution regarding defendant’s location during the incident, including cell phone data,
fingerprints, the location of the victim’s personal belongings, and identification of defendant, was
completely plausible, and did not defy any physical realities. Id. at 646-647.
Defendant’s contention that this Court should override the trial court’s witness credibility
determinations is without merit. Witness credibility is “implicit” in deciding whether a verdict is
against the great weight of the evidence. Id. at 638. This Court does not substitute its view on the
issue of witness credibility for that of the fact-finder “absent exceptional circumstances.” Id. at
642. When “testimony is in direct conflict and testimony supporting the verdict has been
impeached,” this Court leaves the determination of witness credibility to the fact-finder if “it
cannot be said as a matter of law that the testimony thus impeached was deprived of all probative
value . . . .” Id. at 643 (quotation marks and citation omitted). “Conflicting testimony, even when
impeached to some extent, is an insufficient ground for granting a new trial.” Id. at 647. Defendant
has failed to point to an exceptional circumstance to warrant this Court usurping the trial court’s
witness credibility determinations. Therefore, even if the victim’s identification of defendant was
suppressed at trial, defendant’s testimony regarding his alleged location did not preponderate so
heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.
People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998).
II. IDENTIFICATION
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Defendant next argues that the photographic lineup shown to the victim used improper
identification procedures and led to unduly suggestive identifications of defendant.
A trial court’s “decision to admit identification evidence will not be reversed unless it is
clearly erroneous.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). “Clear error
exists when the reviewing court is left with the definite and firm conviction that a mistake has been
made.” Id. Questions of law related to a motion to suppress identification testimony are reviewed
de novo. People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).
“A photographic identification procedure violates a defendant’s right to due process when
it is so impermissibly suggestive that it creates a substantial likelihood of misidentification.”
People v Woolfolk, 304 Mich App 450, 457; 848 NW2d 169 (2014). “[A]n improper suggestion
often arises when the witness when called by the police or prosecution either is told or believes
that the police have apprehended the right person. Moreover, when the witness is shown only one
person or a group in which one person is singled out in some way, he is tempted to presume that
he is the person.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998) (quotation marks and
citation omitted). “Generally, the photo spread is not suggestive as long as it contains some
photographs that are fairly representative of the defendant’s physical features and thus sufficient
to reasonably test the identification.” Kurylczyk, 443 Mich at 304 (quotation marks and citation
omitted). “[P]hysical differences affect the weight of an identification, not its admissibility.”
People v Craft, 325 Mich App 598, 610; 927 NW2d 708 (2018). “[W]hether [a photographic
identification procedure] violates due process depends on the totality of the circumstances.”
Woolfolk, 304 Mich App at 457. “The relevant inquiry, therefore, is not whether the lineup
photograph was suggestive, but whether it was unduly suggestive in light of all of the
circumstances surrounding the identification.” Kurylczyk, 443 Mich at 306.
The trial court properly admitted the out-of-court and in-court identifications of defendant,
rejecting defendant’s claim that the identifications were unduly suggestive. Defendant contends
that by using his driver’s license photograph, making all of the lineup photographs black and white,
and including other men in the lineup that had dissimilar complexions and ages when compared to
defendant, created a substantial likelihood of misidentification. However, “[i]f one were to accept
defendant’s complaints about the slight physical differences or variations, it would make it nearly
impossible for the police to compose a lineup, forcing authorities to search for ‘twin-like’
individuals to match against a defendant.” People v McDade, 301 Mich App 343, 358; 836 NW2d
266 (2013).
A review of the record shows that Sergeant Terrence Sims went to great lengths to preserve
the fairness of the photographic lineup. These measures included using five other photographs of
men who were of similar complexion, age, build, facial hair, and clothing as defendant. Because
defendant was not in custody at the time, and the only available photograph of him was from his
driver’s license, Sergeant Sims placed all the photographs in a cut-out board which made all the
photographs appear the same size. Moreover, to ensure all the photographs looked similar,
Sergeant Sims printed the photographs in black and white to prevent defendant’s photograph,
which had a light blue background as opposed to white, from standing out from the other
photographs. When the victim was shown the lineup, Sergeant Sims told the victim that her
assailant might not be in the lineup, and assured her that there was no pressure to identify anyone.
Further, a lineup is not impermissibly suggestive because of age differences between the defendant
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and the other participants where the defendant’s appearance is substantially similar to that of the
other participants. Id. at 357. Because extensive measures were taken to ensure a fair lineup, the
trial court could reasonably conclude that the photographic lineup was admissible and not unduly
suggestive.
In addition, the trial court properly allowed the victim’s in-court identification of defendant
at trial. “The need to establish an independent basis for an in-court identification arises where the
pretrial identification is tainted by improper procedure or is unduly suggestive.” People v Barclay,
208 Mich App 670, 675; 528 NW2d 842 (1995). Because we concluded that the photographic
lineup procedure was not improper or unduly suggestive, defendant failed to establish any basis
for suppressing the victim’s in-court identification of defendant. However, even if the
photographic lineup was unduly suggestive, “in-court identification by the same witness still may
be allowed if an independent basis for in-court identification can be established that is untainted
by the suggestive pretrial procedure.” Kurylczyk, 443 Mich at 303. To determine whether there
is an independent basis for the admission of an in-court identification, this Court weighs as factors:
(1) prior relationship with or knowledge of the defendant; (2) opportunity to
observe the offense, including length of time, lighting, and proximity to the criminal
act; (3) length of time between the offense and the disputed identification; (4)
accuracy of description compared to the defendant’s actual appearance; (5)
previous proper identification or failure to identify the defendant; (6) any prelineup
identification lineup of another person as the perpetrator; (7) the nature of the
offense and the victim’s age, intelligence, and psychological state; and (8) any
idiosyncratic or special features of the defendant. [People v Davis, 241 Mich App
697, 702-703; 617 NW2d 381 (2000).]
Even if the photographic lineup was unduly suggestive, the victim’s in-court identification
of defendant would still be admissible because it was supported by a sufficient independent basis.
The victim had an unobstructed view of defendant’s face during the incident, which was lit by
streetlights. Although defendant had noticeable tattoos on his arms that the victim did not describe,
the victim testified that she only really looked at the gun in defendant’s hand. The victim described
the gun as a Glock or some other gun with a slide, and ammunition for a nine-millimeter gun was
discovered in the Impala that defendant admitted to driving the night of the incident. Moreover,
defendant is 5’9” and the victim described defendant as being between 5’9” and 5’10.” The victim
identified defendant in the photographic lineup less than 24 hours after the incident, and she
identified defendant in court five months after the incident. The discrepancies noted by defendant,
including the victim’s description of defendant as wearing a white t-shirt and being about 30 years
old, does not diminish the validity of the independent basis supporting the victim’s identification
of defendant. Rather, they pertain to the reliability of the identification and the weight attributable
to it. Notably, the victim did not identify Ellison or anyone else in the live lineup at the police
station. Because the fact-finder could reasonably conclude that the victim’s identification was
nonetheless reliable on the basis of her consistency and certainty, the trial court properly admitted
the in-court identification of defendant.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
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As his last argument, defendant asserts that he received ineffective assistance of counsel as
a result of his trial attorney not opposing the admission of the out-of-court and in-court
identifications admission at trial.
An argument of ineffective assistance of counsel must be raised below in a motion for a
new trial or an evidentiary hearing under People v Ginther, 390 Mich 436, 443; 212 NW2d 922
(1973). People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). Defendant first raised
the issue of ineffective assistance of counsel in his brief on appeal. Because defendant did not
raise the issue of ineffective assistance of counsel below, it is unpreserved for appellate review.
Snider, 239 Mich App at 423.
The determination of whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). The trial court’s factual findings are reviewed for clear error, while its
constitutional determinations are reviewed de novo. Id. Because defendant has not established a
testimonial record at a Ginther hearing, however, this Court’s review is limited to mistakes
apparent on the record. Snider, 239 Mich App at 423.
Defendant asserts that he received ineffective assistance of counsel when his defense
counsel failed to seek suppression of the photographic lineup or the in-court identification.
However, defense counsel did object to the photographic lineup during trial, requesting a Wade
hearing.1 As a result, the trial court held a Wade hearing, and rejected defendant’s argument that
the photographic lineup was unduly suggestive. Further, as we already concluded, the
identification procedures at issue here were not impermissibly suggestive or inadmissible. As a
result, a motion to suppress the in-court identifications that resulted from the photographic lineup
would have been futile. Because “[c]ounsel is not ineffective for failing to advance a meritless
position or make a futile motion[,]” defense counsel’s performance was not deficient. People v
Henry (After Remand), 305 Mich App 127, 141; 854 NW2d 114 (2014).
Affirmed.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
1
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
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