Opinion
No. 347258
03-17-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LAJUAN ADONIS SMITH, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-006183-01-FC Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ. PER CURIAM.
Defendant appeals as of right his jury trial conviction of assault with intent to commit murder, MCL 750.83. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 30 to 60 years' imprisonment. We affirm.
I. BACKGROUND FACTS
This case arises from an assault on Fermin Rodriguez at Felicia Bowles and Adam Campbell's house in Southwest Detroit in the early morning hours of January 29, 2018. Prior to that day, a friend of Bowles, Dimaso Marble, had told Bowles that his mother, Jackie Runels, had been murdered. Marble and other members of Runels' family believed that Rodriguez was involved in her death. Marble, knowing that Rodriguez kept in contact with Bowles, told Bowles to call him the next time Rodriguez contacted her. On January 29, 2018, Rodriguez came to Bowles' house with a female companion and Bowles let Marble know he was there. Marble and several other people, including defendant, came to Bowles' house and brutally assaulted Rodriguez with various weapons.
Prior to trial, defendant filed a motion to suppress Bowles' identification of defendant on the ground that she picked defendant out of an unduly suggestive photographic lineup. At the evidentiary hearing on defendant's motion, Bowles testified that she had seen defendant driving through her neighborhood on two or three occasions prior to the incident and had also seen him at a neighborhood store. According to Bowles, Marble had identified defendant as his mother's boyfriend when they saw him driving through the neighborhood. Bowles testified that on the day of the incident, defendant arrived at Bowles's house in an SUV and went to the back of the SUV, putting on a mask before he became involved in the beating of Rodriguez.
Bowles testified that she was interviewed by the police shortly after the incident but did not mention defendant. At that time, the police were focused on Bowles' involvement in an incident involving Rodriguez's companion that took place in the hours after Rodriguez was beaten and fled from Bowles' house. Later, when Bowles' attorney was negotiating a plea deal for her, Bowles told police that she had information about the "masked man" that participated in the beating of Rodriguez—she did not know his real name but she knew that he was Jackie Runels' boyfriend. Bowles thereafter selected defendant's photograph from a photographic "six pack."
The trial court denied defendant's motion to suppress on the ground that defendant had produced no evidence to show that the photographic lineup was suggestive or that it created a substantial risk of misidentification. Bowles testified against defendant at trial. Defendant was convicted and sentenced as a fourth-offense habitual offender. Defendant now appeals.
II. IDENTIFICATION PROCEDURE
Defendant argues that the trial court erred by denying his motion to suppress Bowles's identification of defendant as "the masked man" because Bowles was not very familiar with defendant before the incident, she would have had a limited time to view him among significant commotion at the scene of the crime, and she did not identify him until she had been offered a plea bargain. We disagree.
"On review, the 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), overruled in part on other grounds by People v Hickman, 470 Mich 602, 603-604; 684 NW2d 267 (2004). "Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made." Kurylczyk, 443 Mich at 303.
Defendant argues that the background of his photograph was a different color than the other five photographs; in addition, one of the photographed men had hair while the other five, including defendant, were bald. Defendant thus contends that the photographic lineup was unduly suggestive and denied him due process of law. "In order to sustain a due process challenge, 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." Id. at 302-303, citing Neil v Biggers, 409 US 188, 196; 93 S Ct 375; 34 L Ed 2d 401 (1972). Moreover, defendant "bears the burden of showing that the lineup was impermissibly suggestive." People v Craft, 325 Mich App 598, 609; 927 NW2d 708 (2018).
Defendant did not offer the photographs for admission at the Wade hearing and did not attach them to his brief on appeal, so his description of the lineup is without evidentiary support. Even if defendant's description of the lineup is accurate, the features he identifies did not create a risk that a witness might "select a defendant on the basis of some external characteristic, rather than on the basis of the defendant's looks." Kurylczyk, 443 Mich at 305 (citing a Massachusetts case in which the defendant was the only man of 13 in a lineup who wore glasses and the witnesses admitted to selecting the defendant on that basis). A lineup that placed defendant among four other bald men was not suggestive, and defendant does not provide a theory as to why the background color of his photograph rendered the whole lineup unduly suggestive. There is no evidence on the record that defendant's photograph was "singled out" in any meaningful way. Therefore, the trial court did not clearly err in determining that the photographic lineup was not suggestive.
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
Additionally, even if the lineup was suggestive, "a suggestive lineup is not necessarily a constitutionally defective one . . . . 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." Id. at 306. " '[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.' " Id., quoting Biggers, 409 US at 199-200.
Bowles testified that she saw defendant's face at the scene of the crime before he put on the mask. Despite defendant's argument that the environment was chaotic when Bowles saw defendant, the assault did not begin in earnest until after defendant put on the mask. Bowles was attentive to defendant's presence at the scene of the crime—she recognized defendant, even though she had never met him, and she asked Campbell why defendant had showed up at their house. Bowles testified at the Wade hearing that she was positive that defendant was the masked man. Defendant argues that Bowles never gave the police a physical description of defendant until four months after the incident, when the photographic lineup was administered. Nonetheless, the other factors of the Kurylczyk analysis weigh heavily against the existence of a substantial likelihood of misidentification. Therefore, the trial court did not clearly err in concluding that there was no substantial risk of Bowles misidentifying defendant, given the totality of the circumstances.
If the lineup procedure had been constitutionally defective, a constitutional error does not require automatic reversal when the error is nonstructural and "harmless beyond a reasonable doubt." People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). "Violations of the constitution that are subject to a harmless-error analysis are errors that occurred during the presentation of the case to the jury, and that may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." People v Solomon, 220 Mich App 527, 536; 560 NW2d 651 (1996) (quotation marks and citation omitted); see also People v Blevins, 314 Mich App 339, 349; 886 NW2d 456 (2016).
At trial, Willie Runels, Runels' brother, testified that defendant was his deceased sister's boyfriend or partner at one time. After Runels' relatives arrived at Bowles' home and interrogated Rodriguez, one of the female relatives walked away and made a few phone calls. Defendant's cell phone records show that he was the recipient of one of those calls. Cellular mapping showed that defendant's phone moved into the sector of the crime scene after that phone call. Rodriguez testified that a "light-colored" SUV showed up at Bowles' house (Bowles' testified that defendant arrived in a red SUV) and that a man in a mask that participated in the attack on him was significantly shorter than him. Surveillance footage retrieved from Bowles's neighbor, although dark, shows that one of Rodriguez's two male assailants had defendant's height and build. Thus, circumstantial evidence identified defendant as the masked man beyond a reasonable doubt. Even, then, if the trial court had erred in admitting Bowles' identification of defendant, the error would have been harmless.
III. HABITUAL-OFFENDER NOTICE
Defendant next argues that he is entitled to resentencing because the prosecution did not file proof that it had served a habitual-offender notice on defendant as required by MCL 769.13. This Court reviews the interpretation and application of statutory provisions de novo. People v Head, 323 Mich App 526, 542; 917 NW 2d 752 (2018).
MCL 769.13 provides, in relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12], by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall be filed with the court and served upon the defendant or his or her attorney within the time provided in subsection (1). The notice may be personally served upon the defendant or his or her attorney at the arraignment on the information charging the underlying offense, or may be served in the manner provided by law or court rule for service of written pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court.
In Head, this Court held that "the [prosecution's] failure to file a proof of service of the notice of intent to enhance the defendant's sentence may be harmless if the defendant received the notice of the prosecutor's intent to seek an enhanced sentence and the defendant was not prejudiced in his ability to respond to the habitual-offender notification." Head, 323 Mich App at 543-544. The Head Court further determined that the defendant had received actual notice because he 1) did not claim that he never received copies of the charging documents, which contained habitual-offender notices; 2) waived a reading of the information at his arraignment, indicating that he had read the habitual-offender notice therein; and 3) received notice of his habitual-offender status on the record during the preliminary examination. Id. at 544-545. The Head panel thus held that the defendant was not prejudiced because he "exhibited no surprise at sentencing when [he] was sentenced as a fourth-offense habitual offender," and he "ha[d] not asserted in the trial court or on appeal that he had any viable challenge to his fourth-offense habitual-offender status. Id.
In this case, as in Head, the prosecution included a fourth-offense habitual offender notice in the warrant, complaint, and information. Defendant does not contend that the notice was absent from the charging documents or that he never received them. Defendant waived a reading of the information at his arraignment. Defendant's habitual-offender status was stated on the record at the preliminary examination, and defendant testified at the evidentiary hearing that he knowingly and voluntarily rejected the prosecution's offer to dismiss the habitual-offender enhancement in favor of 10 to 25 years' imprisonment if defendant admitted responsibility. Therefore, defendant received actual notice of the prosecutor's intent to seek an enhanced sentence. Id. Defendant did not assert in the trial court, and does not assert on appeal, that the prosecution's procedural oversight denied him the opportunity to introduce a meritorious argument against his fourth-offense habitual offender status. Therefore, defendant was not prejudiced by the prosecution's failure to file a written proof of service and is not entitled to resentencing. Id.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto