Opinion
349544
10-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MONTARIO MARQUISE TAYLOR, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 16-040564-FC
Before: Shapiro, P.J., and Borrello and O'Brien, JJ.
Per Curiam.
Defendant appeals as of right his jury trial convictions of first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment without parole for the murder conviction, and a consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm.
I. BACKGROUND
Defendant's convictions arise from the October 24, 2016 shooting death of Montel Wright at his home on East Bundy Street in Flint. There were no eyewitnesses to the actual shooting, but witnesses described events they observed that day near the time Wright was shot.
Several of the witnesses or involved individuals had nicknames or street names by which they were known. Frequently, the witnesses at trial, as well as the parties, referred to these individuals by their street names. In particular, Rodney Hendricks was known as "Country," and William Johnson was known as "Dog." For ease of reference, we will refer to the witnesses by their surname.
The two key witnesses were Hosea Mosley and William Johnson. Mosley was Wright's roommate and Johnson was a friend who frequented the neighborhood where Wright and Mosley lived.
Shortly before the shooting, Mosley and Rodney Hendricks were sitting in a vehicle parked in the driveway of Wright's house. The two were drinking and talking. Johnson approached the house from the street to speak to Wright about borrowing some money so he could buy a bottle of beer for his bus ride home. Johnson testified that Wright let him in the house and lent him the money. Mosley testified that around this time defendant approached Wright's home and acknowledged Hendricks as he passed. Johnson testified that as he walked away from Wright's home he passed defendant on the porch steps. Both Mosley and Johnson testified that they saw defendant go inside Wright's home and, within moments, heard rapid-fire gunshots.
When the gunshots rang out, Hendricks and Mosley drove away, and Johnson took cover behind a nearby tree. Johnson testified that he saw defendant leave Wright's house, walk toward the street, engage in a motion with his hand similar to racking a gun, and then returned to the house. At that point, Johnson heard more rapid gunfire. He then saw defendant leave the house and run across the street and through a field. At some point, Hendricks, who had passed away by the time of trial, called 911 and identified defendant as the shooter. The 911 call was played for the jury.
Wright died from multiple gunshot wounds to his chest, abdomen, and calf. Wright was shot eight times and the bullets entered his body from both the front and the back. The police recovered nine shell casings at the scene and ballistics testing confirmed that they were all fired from the same gun. The murder weapon was not recovered and there was no forensic evidence supporting defendant's convictions.
II. ANALYSIS
A. HEARSAY REBUTTAL EVIDENCE
Defendant first argues that the trial court erred when it allowed the prosecutor to elicit hearsay statements from Mosley related to statements Mosley made to the police. We agree with defendant that the trial court's evidentiary ruling on this matter constitutes an abuse of discretion, but conclude that the error was harmless.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. People v Chelmicki, 305 Mich.App. 58, 62; 850 N.W.2d 612 (2014). An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of principled outcomes. People v Buie, 491 Mich. 294, 320; 817 N.W.2d 33 (2012).
At trial, defense counsel asked Mosley on cross-examination if it were true that he told the interviewing officer that when Johnson arrived, Johnson was pacing back and forth and looking suspicious. In response, Mosley testified that he told the officer that Johnson walked past the house, then walked back, went up the stairs, and then Wright let him into the house. Defense counsel then read the portion of Mosley's police statement confirming that he made the disputed statement regarding Johnson pacing back and forth. Defense counsel then had Mosley confirm that he told the officer that he believed Johnson was drunk and read an additional statement from the police report regarding whether Mosley said that Johnson and defendant went inside Wright's home together.
Mosley denied making such a statement and the excerpt from the police report read by defense counsel did not contradict him.
After defense counsel completed her cross-examination of Mosley, the jury was excused and the prosecutor argued that defense counsel had opened the door by cherry-picking statements attributable to Mosley from the police report and leaving out things that established the prosecution's theory of motive. The prosecutor argued that she should be permitted to present the complete picture of what Mosley told the police during his interview by reading other statements of Mosley into the record. Defense counsel argued that impeaching Mosley on a particular prior inconsistent statement from the police report did not warrant admitting the entirety of what Mosley told the police. The prosecutor countered that the defense had read into the record more than just the inconsistent statement. The trial court agreed with the prosecutor's position. On redirect examination, the prosecutor had Mosley confirm that he told the interviewing officer that he had a "bad feeling" when he saw defendant approach the porch. When asked what the reason was for that feeling, Mosley, answered, "That [defendant] had shot in the house about two weeks before." During recross-examination, defense counsel had Mosley confirm that he "never saw who shot up the house" and that his testimony was based on "hood talk."
For additional context, at the outset of defendant's second trial, the prosecutor explained that in the weeks before the fatal shooting, defendant was arrested in the neighborhood on an unrelated drug charge. Mosley and Wright were nearby and witnessed the arrest. At defendant's first trial, which resulted in a hung jury, Mosley was not allowed to testify that defendant felt Wright had "snitched on him" because Mosley heard that "from people," not defendant. The prosecutor requested at the second trial that Mosley be allowed to testify that he observed defendant being arrested as it was relevant to defendant's motive. The trial court ruled that this evidence was inadmissible.
As an initial matter, we decline to address the prosecutor's argument that defense counsel improperly impeached Mosley and erred by reading portions of Mosley's police statement out loud. The prosecutor does not address MRE 613 (governing prior statements of witnesses) or cite caselaw in support of its position on those matters. See People v Williams, 228 Mich.App. 546, 558; 580 N.W.2d 438 (1998) ("[A] party may not announce a position and leave it to us to discover and rationalize the basis for the claim."). Instead, we will focus on whether Mosley's statement that defendant shot at Wright's house two weeks prior was proper rebuttal evidence. There is no dispute that this statement otherwise constitutes inadmissible hearsay because Mosley did not witness the alleged prior shooting and at best was recounting what he had "heard" from unidentified persons. But the prosecutor maintains that defense counsel opened the door to this hearsay.
Rebuttal evidence is admissible to "contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same." People v Figgures, 451 Mich. 390, 399; 547 N.W.2d 673 (1996) (quotation marks and citations omitted). "[T]he test of whether rebuttal evidence was properly admitted is . . . whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant." Id.
Mosley's statement regarding the alleged prior shooting was not responsive to the police statements inquired about by defense counsel. Defense counsel questioned Mosley regarding Johnson's behavior near the time of the shooting, specifically whether Johnson was drunk and pacing back and forth suspiciously before entering Wright's home. This line of questioning was relevant to Mosley's credibility and the reliability of Johnson's perceptions at the time of the offense. Defense counsel's questioning did not concern defendant's motive to commit the crime, nor did defense counsel question Mosley about matters that he did not personally observe. Nonetheless, in response the prosecution was allowed to elicit testimony that Mosley had heard that defendant had "shot in the house" two weeks previously. This testimony was not relevant to Johnson, and it did not rehabilitate Mosley's credibility. Further, it did not give context to Mosley's others statements. Rather, it was used solely as substantive evidence of defendant's guilt. In sum, the hearsay statement was not responsive to the evidence introduced by defendant. Accordingly, the trial court abused its discretion by allowing it as rebuttal evidence.
However, "[a] preserved error in the admission of evidence does not warrant reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v Burns, 494 Mich. 104, 110; 832 N.W.2d 738 (2013) (quotation marks and citation omitted). See also People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). In the 911 call, Hendricks identified defendant as the shooter, and during trial both Johnson and Mosley identified defendant as the only one in the house with Wright when the shots were fired. Thus, this case largely turned on the jury's assessment of Mosley and Johnson's credibility and the credibility of the 911 call. And there is no basis to conclude that Mosley's testimony that defendant shot at the home two weeks prior, more probably than not, affected the jury's credibility determinations. The hearsay evidence did not bolster Mosley or Johnson's credibility, and it did not carry much weight considering that defense counsel established on recross-examination that Mosley did not personally observe the alleged prior shooting that occurred weeks prior. We acknowledge that the first trial where the hearsay evidence was not admitted resulted in a hung jury, but the evidence's probative value is too minimal to conclude under the more-probable-than-not standard that it made a difference at the second trial. Given the record before us, it is more likely that the second jury simply made a different assessment of Johnson and Mosley's credibility based on the properly admitted proofs. For these reasons, we conclude that admission of the hearsay evidence was a harmless error.
B. EFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that Detective William Jennings, the officer in charge of this case, was permitted to improperly comment on the veracity of the witnesses, bolster the credibility of the witnesses, act as a human lie detector, and give impermissible expert testimony. He additionally argues that defense counsel was ineffective for failing to object to the testimony. We disagree in both respects. When the challenged testimony is considered in context, it is apparent that it was not improper.
We review defendant's unpreserved evidentiary issues for plain error affecting defendant's substantial rights. People v Brown, 326 Mich.App. 185, 195; 926 N.W.2d 879 (2018). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). Even if these requirements are met, reversal is required only when the plain error "resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks and alterations omitted). Because defendant did not raise an ineffective-assistance claim in a motion for a new trial or request for an evidentiary hearing, our review of that issue is limited to errors apparent from the record. People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009); People v Rodriguez, 251 Mich.App. 10, 38; 650 N.W.2d 96 (2002).
"To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense." People v Riley, 468 Mich. 135, 140; 659 N.W.2d 611 (2003), citing Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); see also Pickens, 446 Mich. at 302-303. "In order to demonstrate that counsel's performance was deficient, the defendant must show that it fell below an objective standard of reasonableness under prevailing professional norms." Riley, 468 Mich. at 140 . Establishing prejudice necessarily requires demonstrating a reasonable probability that the result of the proceedings would have been different but for counsel's error. People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013). Defendant bears the burden of establishing the factual predicate for his claim. People v Putman, 309 Mich.App. 240, 248; 870 N.W.2d 593 (2015).
Defendant correctly asserts that Jennings was not qualified as an expert. Consequently, to the extent that he offered his opinion, this lay opinion testimony would be governed by MRE 701, which provides that "[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." This Court has "liberally applied MRE 701 in order to help develop a clearer understanding of facts for the trier of fact." People v Oliver, 170 Mich.App. 38, 50; 427 N.W.2d 898 (1988), mod on other grounds 433 Mich. 862 (1989). Accordingly, police officers may offer opinions on matters that are related to their observations and are not "overly dependent upon scientific, technical or other specialized knowledge." Id. On the other hand, a police officer "cannot express an opinion on the defendant's guilt or innocence on the charged offense[.]" People v Fomby, 300 Mich.App. 46, 53; 831 N.W.2d 887 (2013) (citation and quotation marks omitted). Similarly, a police officer cannot comment or provide an opinion on the credibility of another witness because credibility matters are to be determined by the jury. People v Dobek, 274 Mich.App. 58, 77; 732 N.W.2d 546 (2007). Applying these principles, we conclude that Jennings's testimony was not improper.
Defendant first argues that Jennings improperly referenced his experience. Defendant takes issues with Jennings's testimony that in his lengthy career, he had worked on more than 200 homicides, that there are cases that are solved solely through DNA evidence, while other cases are solved with no DNA evidence. Indeed, according to Jennings, the latter happens "[a]ll the time." When the prosecutor asked if it was normal to have eyewitnesses come forward, Jennings replied, "Not at all. Not at all. Not in the City of Flint." Defendant also took issue with Jennings's proclamation that "everybody has a street name." We find nothing improper about this testimony. Jennings's testimony was based on his experience and it helped to give foundation and context to his testimony.
Along these same lines, defendant takes issues with Jennings's testimony explaining the difference between a six-pack lineup and a single photo showup. Defendant cites the following exchange between the detective and defense counsel:
Q. You don't take one photograph, show it to a person and say is this the person, do you? A. We do in some cases, yes. Q. You do in some cases - A. Yes. Q. -but in instance you didn't? A. Apparently somebody else did according to his testimony, and the time that we will do that is if they know the person. If the person is known to them and they name them by name and we are at a scene and we want to try to apprehend that suspect as soon as possible, we will pull up a photograph and show it to them. If they say hey, it was some person unknown to us and we later learn a name we will do a six pack. * * * Q. It's still best practice for police to provide a six pack lineup, six different pictures, correct: It's a good practice. A. It totally depends on the circumstances. Like I said, if they know-if my brother commits a crime, I'm not going to give a six pack to -- the police are not going to provide me with a six pack. Or same thing for you, if your husband commits a crime, I'm not going to do a six pack with your husband in it and ask you to try to identify him. That's as simple as I can - Q. I understand. In this instance, we're not dealing with a relative, a husband, or a brother, correct? A. Correct- 7 Q. Yep, okay. A. -but someone that grew up in the neighborhood that they all indicated that they knew
Defendant argues that this testimony legitimized the other witnesses' testimony. We disagree. The first part of Jennings's testimony was just an explanation of police procedure and an attempt to put events in context. The final comment, that this was a case where the suspect was someone from the neighborhood, was just an acknowledgment that based on the investigation, and consistent with the evidence that had already been presented at trial, it appeared that at least one witness had indicated that the suspect was known to them.
Defendant also takes issue with Jennings's testimony that the shoes defendant was wearing when he was arrested were "new." Defendant notes that, during closing argument, the prosecutor suggested that defendant needed to get new shoes because he threw away the shoes he was wearing at the time he shot Wright. Contrary to defendant's suggestion, it was not improper for Jennings to testify regarding what he observed while examining the evidence in the case. Further, there was nothing improper about the prosecutor's comments during closing argument. Prosecutors have "great latitude" and may "argue the evidence and all reasonable inference from the evidence" in support of their case." People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995).
Defendant complains that Jennings provided expert testimony without being qualified as an expert, and without ensuring that his opinions were valid. This allegedly occurred in two contexts: (1) testimony regarding defendant's cell phone, and (2) testimony related to the money found in Wright's pants pocket. During his testimony, Jennings explained that no data was taken off the phones that were seized that could establish the location of the phones or defendant at any given time. In response to the question whether the investigators checked the location services on defendant's phone to see if he was at the scene, Jennings replied that the phone's "[l]ocation services were not on . . . ." Jennings further surmised that defendant may not have had his phone with him. Finally, Jennings testified that it was not possible to now "ping" defendant's cell phone to determine his location at the time of the shooting. Defendant seems to take issue with this testimony because, before it was given, Jennings professed that he was not a "phone expert."
We find no error in the introduction of the foregoing testimony. Despite defendant's claims, this testimony was not expert testimony. Jennings testified regarding what he rationally perceived in the phones' settings. As for the testimony that it was not possible to "ping" a cell phone "after the fact," this was not improper opinion testimony. The detective's opinion in this regard was not overly dependent upon scientific, technical, or other specialized knowledge. Oliver, 170 Mich.App. at 50. In any event, this testimony was not prejudicial, given that it merely established that defendant's phones did not provide any useful information.
A similar conclusion is warranted regarding the admission of Jennings's testimony related to the money recovered at the scene. At the time of his death, Wright had $160.72 in his pocket. Jennings first testified that the money was not in denominations typically seen when individuals are engaged in drug transactions. He later corrected himself and opined that the money found with Wright was not folded in a manner that was indicative of drug selling activities. He then explained that drug sales are usually quick transactions. As a consequence, bills would typically be folded individually for quicker access. As an example, he explained: "If somebody is selling Nick Sacks, they're going to have a whole bunch of five dollar bills that are folded in half on top of each other as they quickly stick in their pockets after they make the transactions." The detective's testimony was based on his observations, coupled with his knowledge and experience. A police officer may offer an opinion on matters that are related to their observations that are not overly dependent upon scientific, technical or other specialized knowledge. Moreover, the testimony was relevant to show that Wright was not killed as a result of a drug deal gone bad.
Defendant also takes issue with the following exchange between Jennings and both the trial court and the prosecutor. He contends that Jennings's testimony legitimized Johnson's testimony.
The Court: You heard something and then what did you do?
A. It came to mind that possibly that he was there from the time of the incident until the police arrived and had visual contact with the front door of that house. And I asked him specifically that question, if he stayed there at the scene the whole entire time and could see the front door of the house. And he said to me, well yeah, that's when I went out and stood behind the tree. And I said [Johnson], what do you mean you stood behind the tree? He said yeah, I was standing behind the tree when he came out and he racked the gun and was trying to -
[Defense Counsel]: Same objection, Judge. Additional hearsay. We got into when it was said.
The Court: Yeah.
[Defense Counsel]: This is a conversation that's had. It's inadmissible.
The Court. Yeah that is hearsay.
[Prosecutor]: Your honor, can I ask a question with regards to demeanor?
The Court. Yes, but not what he said.
[Prosecutor]: Okay without getting into the specifics of what he told you before the preliminary examination, you're smiling when you're telling the story because what was [Johnson's] demeanor when he told you these things? I don't want to - I don't need to know what he said but what was his demeanor?
A. That he had told me who did the crime and what his name was and that he did what he was supposed to. He had told me who did it so -
[Defense Counsel]: Judge?
[Prosecutor]: And so was he angry with you?
A. He had told me who had committed the crime. And then yeah - well I told you. What - why does that matter, I already told you who did it. I already told you what happened.
[Defense Counsel]: And, Judge, this is statements again. It's not demeanor. Same objection.
A. It was his demeanor.
[Prosecutor]: Well, I think he is describing demeanor in the words that he's using, but can you just tell -
The Court: Yeah.
A. He got angry. He got angry that I would question why he didn't tell me that.
[Prosecutor]: Okay, thank you.
The Court: All right. The jury should disregard the earlier statements about what he said.
We agree that Jennings's volunteered and unresponsive remarks constituted inadmissible hearsay. However, Johnson had already testified regarding these facts by the time Jennings testified. In any event, the trial court sustained the objection and promptly and appropriately instructed the jury to disregard the statements about what Johnson said. Under the circumstances, the trial court's prompt curative instruction was sufficient to remedy the error, and therefore, reversal is not required.
In sum, the record does not support defendant's assertions that Jennings offered an opinion on the credibility of the witnesses or invaded the province of the jury. Similarly, the detective's testimony did not include improper lay or expert opinions. Further, the prosecutor did not improperly elicit the testimony from Jennings in order to bolster the testimony of the other witnesses. Jennings was not, as suggested, presented to the jury as "a human lie detector." Therefore, defendant has failed to establish that Jennings's testimony constituted plain error affecting defendant's substantial rights.
Defendant also argues that trial counsel was ineffective for not objecting to Jennings's testimony on the ground that he was offering improper expert opinions and bolstering the credibility of the other witnesses. As already explained, defense counsel did object to the admission of Johnson's hearsay statements, her objection was sustained, and the court gave a curative instruction. Regarding the other testimony, because the detective's testimony was not improper, defense counsel was not ineffective for filing to object. People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.").
C. SUGGESTIVE PHOTO DISPLAY
Defendant also argues that he was denied due process and a fair trial because Mosley's in-court identification of him was tainted by an unnecessarily suggestive pretrial identification procedure. Defendant further argues, however, that defense counsel was ineffective for not moving to suppress Mosley's identification of defendant or otherwise objecting to his identification testimony at trial.
As defendant concedes, there was no objection to Mosley's identification testimony at trial and the issue whether Mosley's identification was tainted by an unduly suggestive pretrial procedure was not otherwise raised below. Therefore, this claim of error is unpreserved and is reviewed for plain error affecting defendant's substantial rights. Carines, 460 Mich. at 763. Because this ineffective-assistance claim was not raised in an appropriate motion in the trial court, we review this issue for errors apparent from the record. Payne, 285 Mich.App. at 188; Rodriguez, 251 Mich.App. at 38.
Mosley testified that after the police arrived at the scene, one of the officers showed him and Hendricks a photo of defendant on the officer's cell phone and asked, "Is this the guy," and Mosley replied, "Yeah." According to Mosley, he knew defendant before the shooting, and defendant would sometimes come to the house that Mosley shared with Wright, but their conversations were limited to "hi and bye." Mosley did not identify defendant by name when the officer showed him defendant's photo because he did not actually know defendant's name, but only knew him as "Chicago." However, when Hendricks and Mosley were shown the photo together, Hendricks identified defendant by name. After Mosley identified the shooter, he was taken to the police station and interviewed. During this interview, Mosley selected defendant's photo out of a six-pack photo array. At trial, Mosley identified defendant in court as the individual he saw go into Wright's home after Johnson left, and immediately before shots were heard.
"Due process protects criminal defendants against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedure." People v Sammons, 505 Mich. 31, 41; 949 N.W.2d 36 (2020) (quotation marks and citation omitted). "Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable." Id.
In Sammons, the Michigan Supreme Court recognized that the inherently suggestive nature of showups has long been beyond debate. Id. at 41-42. Showing a witness a single photograph is considered to be one of the most suggestive identification procedures that can be used. People v Gray, 457 Mich. 107, 111; 577 N.W.2d 92 (1998). Indeed, the Court in Sammons held that "all we need to observe in order to conclude that the procedure was suggestive is that defendant was shown singly to the witness." Sammons, 505 Mich. at 44. Thus, there can be little question that when the police officer showed Mosley a single photo of defendant at the scene, this procedure was suggestive. The analysis then turns to whether the showup was necessary and whether Mosley's identification of defendant was unreliable. See id. at 49.
The Court in Sammons recognized that there may be times when a showup is necessary, despite its suggestiveness. Id. at 47. Indeed, it conceded that "there are instances in which a fair and nonsuggestive procedure simply is not possible." Id. at 47-48. As an example, the Court cited Stovall v Denno, 388 U.S. 293, 295; 87 S.Ct. 1967; 18 L.Ed.2d 1199 (1967), in which the only witness to a murder had been stabbed 11 times and was hospitalized awaiting life-saving surgery. The victim identified the defendant from her hospital bed. The United States Supreme Court concluded that, on the facts of the case, the defendant was not denied due process. Id. at 302. By contrast, in this case, it is difficult to conclude that the showup was necessary. The record indicates that at the time the officer presented defendant's photo to Mosley, law enforcement already knew that defendant had been identified as the primary suspect. Moreover, only a few hours later, Mosley was taken to the station and participated in a six-pack photo array. Under these circumstances, there was no urgency justifying the suggestive showup procedure used here.
Nonetheless, an unnecessary and suggestive pretrial procedure does not necessarily require exclusion of identification evidence. Although an identification procedure might be unnecessarily suggestive, the evidence it produced can still be admissible if the procedure did not create a "substantial likelihood of misidentification." Sammons, 505 Mich. at 49. In Sammons, the Court applied the nonexclusive list of factors set out in Neil v Biggers, 409 U.S. 188, 201; 93 S.Ct. 375; 34 L.Ed.2d 401 (1972), to determine whether an unnecessarily suggestive identification was reliable. Id. at 50. The factors to be weighed include:
(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. [Id. at 50-51 (quotation marks and citation omitted).]Applying the foregoing factors to this case, it is apparent that the indicia of reliability outweighed the police officer's use of a suggestive procedure.
Mosley testified that he and Hendricks were sitting in Hendricks's Trailblazer that was parked in the driveway at Wright's home. Mosley was sitting in the passenger seat and Hendricks occupied the driver's seat. Shortly before the shooting, Mosley observed defendant, who he already knew, walk past the driver's side of the vehicle and exchange a few words with Hendricks. Mosley then saw defendant walk up the porch steps, pass Johnson who was leaving the house, and then enter the home. The next thing Mosley recalled was hearing the sound of five or six rapidly fired gunshots. Mosley was shown the single photo of defendant shortly after the police arrived at the scene. Mosley admitted at the time of the identification that he did not know defendant's name.
The record demonstrates that Mosley's opportunity to view the suspect at the time of the crime was more than satisfactory. Further, Mosley paid a significant degree of attention to the events as he continued to observe defendant's activities after defendant passed the Trailblazer and proceeded toward the house. Mosley noted defendant's interaction with Johnson on the porch steps. Mosley identified defendant's photo with no hesitancy. The officer asked Mosley if this was the person he saw, and Mosley promptly replied in the affirmative. In addition, according to Mosley's testimony, little time passed between the shooting and when the police confronted
Mosley with defendant's photo. Additional evidence indicates that Mosley's identification of defendant was reliable, independent of the suggestive procedure. Most significantly, Mosley was already familiar with defendant from the neighborhood. Although the two were not friends, they would exchange a "hi and bye." Further, defendant had been to the home that Mosley shared with Wright. Indeed, within the few weeks preceding the shooting, Mosley had seen defendant at least twice when he came to the house to charge his cell phone.
Considering the foregoing, the record demonstrates sufficient indicia of reliability "strong enough to outweigh the corrupt effect of the police-arranged suggestive circumstances . . . ." Sammons, 505 Mich. at 55, quoting Perry v New Hampshire, 565 U.S. 228, 232; 132 S.Ct. 716; 181 L.Ed.2d 694 (2012). Accordingly, we reject defendant's claim that Mosley's in-court identification was tainted by the pretrial identification procedure. Further, because defense counsel presumably would have been aware of the indicia of reliability associated with Mosley's identification of defendant, particularly considering Mosley's prior familiarity of defendant, counsel's failure to file a motion to suppress was not objectively unreasonable. And because record evidence establishes that Mosley's identification was reliable, any motion to suppress the identification testimony would have been futile. Therefore, defendant cannot establish that defense counsel was ineffective. See Ericksen, 288 Mich.App. at 201.
D. CRUEL AND UNUSUAL PUNISHMENT
Defendant also challenges the constitutionality of his life-without-parole sentence. Defendant was 20 years old when Wright was killed on October 24, 2016. On appeal, he challenges the constitutionality of MCL 750.316, which mandates a sentence of life imprisonment without parole for adults who commit first-degree murder. Defendant contends that a mandatory life-without-parole sentence for a 20-year-old offender violates the United States and Michigan Constitutions. See U.S. Const, Am VIII (prohibiting cruel and unusual punishment); Const 1963, art 1, § 16 (prohibiting cruel or unusual punishment). In support of his position, defendant relies on Miller v Alabama, 567 U.S. 460; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012), in which the United States Supreme Court held that mandatory life-without-parole sentences for juvenile offenders are unconstitutional. Defendant contends that the principles espoused in Miller should also be applied to a 20-year-old offender. The weight of legal authority does not support defendant's position.
In Miller, the United States Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 465 (emphasis added). Notably, the Court did not absolutely prohibit a sentence of life without parole from being imposed on a juvenile offender, but only held that such a sentence could not be made mandatory. Id. at 480. Defendant asserts that this Court should extend the reasoning in Miller to similarly ban a mandatory life-without-parole sentence for offenders 20 years old and under. However, the United States Supreme Court has made it clear that it is constitutionally permissible to establish an age limit for offenders who may be subject to a mandatory life-without-parole sentence, and that it is appropriate to draw a line at 18 years of age.
In Roper v Simmons, 543 U.S. 551, 574; 125 S.Ct. 1183; 161 L.Ed.2d 1 (2005), the United States Supreme Court abolished the juvenile death penalty, holding that the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on offenders who are under the age of 18 when their crimes were committed. The Court addressed drawing the line at 18 years of age, stating:
Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn . . . The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. [Id.]Consistent with Roper, the Court in Miller Court concluded that age 18 is also the appropriate line for mandatory life-without-parole sentences. Moreover, the Michigan Supreme Court has long held that a mandatory sentence of life without parole for adult offenders does not constitute cruel and/or unusual punishment under the United States and Michigan Constitutions. See People v Hall, 396 Mich. 650, 657-658; 242 N.W.2d 377 (1976). Thus, consistent with binding precedent, because defendant was 20 years old when he committed his crime, the imposition of a mandatory life-without-parole sentence on him does not violate the Eighth Amendment or the Michigan Constitution.
E. SPEEDY TRIAL
For his final issue, defendant argues that the trial court erred by denying his motion to dismiss for violation of his right to a speedy trial. We disagree.
In general, "[t]his Court reviews a trial court's ruling regarding a motion to dismiss for an abuse of discretion. People v Adams, 232 Mich.App. 128, 132; 591 N.W.2d 44 (1998). But the determination whether a defendant was denied a speedy trial is a mixed question of fact and law. People v Gilmore, 222 Mich.App. 442, 459; 564 N.W.2d 158 (1997). The trial court's factual findings are reviewed for clear error, but the court's application of constitutional law is reviewed de novo. Id.
The right to a speedy trial is guaranteed to criminal defendants by both the United States and Michigan Constitutions. U.S. Const, Am VI; Const 1963, art 1, § 20; People v Williams, 475 Mich. 245, 261; 716 N.W.2d 208 (2006). In determining whether pretrial delay violated a defendant's right to a speedy trial, Michigan applies the four-part test articulated in Barker v Wingo, 407 U.S. 514; 92 S.Ct. 2182; 33 L.Ed.2d 101 (1972). See People v Cain, 238 Mich.App. 95, 112; 605 N.W.2d 28 (1999). Courts are required to "consider and balance: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant." People v Patton, 285 Mich.App. 229, 236 n 4; 775 N.W.2d 610 (2009). "Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury." Williams, 475 Mich. at 262. But where the delay is less than 18 months, the defendant must prove that the delay caused the defendant to suffer prejudice. Patton, 285 Mich.App. at 236 n 4.
1. LENGTH OF THE DELAY
For purposes of calculating the delay when considering the constitutional right to a speedy trial, our Supreme Court has held that the right "runs from the date of the defendant's arrest." Williams, 475 Mich. at 261, citing United States v Marion, 404 U.S. 307, 312; 92 S.Ct. 455; 30 L.Ed.2d 468 (1971). In Marion, the Court held that "the Sixth Amendment speedy-trial provision has no application until the putative defendant in some way becomes an 'accused, '" which does not occur until "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." Marion, 404 U.S. at 313. In this case, defendant was arrested on October 26, 2016, and arraigned on November 2, 2016. The preliminary examination was held on November 30, 2016. Defendant's first trial began on April 24, 2018, just a few days short of 18 months from the date of defendant's arrest. When the jury could not reach a unanimous verdict, the trial court declared a mistrial on May 1, 2018. Defendant's second trial began on January 8, 2019, approximately 26 months after defendant's arrest. Because the delay exceeds 18 months, prejudice is presumed. Accordingly, the burden shifted to the prosecution to rebut the presumption. Cain, 238 Mich. at 95. This factor weighs in defendant's favor.
2. REASON FOR THE DELAY
In assessing the reason for the delay, the Court must examine to whom the delay is attributable. When a defendant requests an adjournment, the delay is attributable to the defendant. Cain, 238 Mich.App. at 113. The prosecutor is held accountable for unexplained or otherwise unattributable delays. People v Lown, 488 Mich. 242, 261; 794 N.W.2d 9 (2011).
The record discloses that, in general, delays were related to the appointment of substitute counsel for defendant, the complex nature of discovery in a first-degree murder case, the granting of a mistrial, the preparation of transcripts from defendant's first trial, and a few unexplained adjournments of trial, which appear to be related to the appointment of new counsel, hearings on motions, and the preparation of trial transcripts. As such, the various delays are attributable to defendant, the prosecution, and the court. A substantial amount of the delay can be attributed to the fact that the first trial ended in a mistrial on May 1, 2018. Several months elapsed between the June 2018 request for the preparation of the transcripts and their completion and filing with the court in October and November 2018. Consequently, because the delays are attributable to both defendant and the prosecution, this factor does not weigh in favor of either party.
3. ASSERTION OF RIGHT TO SPEEDY TRIAL
To preserve a speedy-trial issue for appeal a defendant must make a "formal demand on the record." People v Rogers, 35 Mich.App. 547, 551; 192 N.W.2d 640 (1970). Defendant did not formally assert his right to a speedy trial until April 2018, on the eve of his first trial. This was also close to 18 months after his October 2016 arrest. In November 2018, defendant renewed the motion on the eve of the second trial date, which was ultimately adjourned. When the trial was rescheduled to January 2019, it appears that defendant abandoned the request for the court to consider the motion because, when the court twice asked if there were any additional matters before trial started, defendant did not raise the issue and, in fact, replied, "no." On this record, defendant's failure to be more zealous in his pursuant of a speedy-trial motion is suggestive of a lack of prejudice related to any delay. See Barker, 407 U.S. at 531-532. Accordingly, although defendant did assert his right to a speedy trial, this factor does not weigh in defendant's favor.
4. PREJUDICE
The final factor, prejudice, considers prejudice to the person and to the defense. Williams, 475 Mich. at 264. Defendant does not assert any personal prejudice. Instead, he relies on the principle that prejudice is presumed because of the length of the delay. He then asserts that the prosecution cannot rebut the presumption. In this regard, defendant argues that because one witness, Roderick Hendricks (i.e., "Country"), died, it is axiomatic that his defense was prejudiced by the delay. However, Hendricks died in early 2017 from cancer, well before any presumption of prejudice arose. He did not testify at either the first or the second trial. Even if trial had occurred in an extremely expeditious manner, it is unlikely that Hendricks would have even been available to testify. Thus, the unavailability of this witness was not a product of any delay. As the prosecution notes, there is no evidence that the defense was otherwise impaired. The delays allowed for forensic testing and the preparation of reports in the areas of DNA testing, ballistics, and biological fluids. As one forensic scientist explained, forensic evidence is sometimes tested in more than one department and it is processed in a particular order to avoid degradation of the samples. Gathering and analyzing evidence in more complex litigation is a legitimate reason for a delay. Cain, 238 Mich.App. at 113. The gathering and analysis of forensic evidence in this case, which took time, was actually beneficial to the defense because it was established that there was no physical evidence connecting defendant to the crime. Accordingly, the prosecution met its burden of rebutting the presumption of prejudice.
Balancing the factors, we conclude that defendant's right to a speedy trial was not violated. Thus, defendant was not entitled to dismissal of the charges for lack of a speedy trial, and the trial court did not err by denying his motions to dismiss on this ground.
Affirmed.