PEOPLE OF MI V EARNEST BURNEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 26, 2002
Plaintiff-Appellee,
v
No. 228695
Wayne Circuit Court
LC No. 99-011511
EARNEST BURNEY,
Defendant-Appellant.
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of attempted armed robbery, MCL
750.92, and possession of a firearm during the commission of a felony, MCL 750.227b.
Defendant was sentenced to seventeen months to five years imprisonment on the attempted
armed robbery conviction to be served consecutively to the mandatory two years imprisonment
on the felony-firearm conviction. Defendant appeals as of right. We affirm.
I
Defendant and his cousin (the co-defendant at trial) approached the victim as she was
entering her home. Each man displayed a gun. Although it was dark, there was enough light to
see their faces and they were very close to her. She began to scream and a struggle ensued as
they pulled at her purse. The victim was struck in the face, she fell to the ground and defendant
began kicking her. The two men fled when the victim’s mother came to the door, taking with
them the victim’s cell phone, and her purse containing money, identification and other personal
items. They were arrested shortly afterwards. Two days later, the victim identified defendant at
a photographic lineup.
II
Defendant argues that the court’s verdict was inconsistent with its findings of fact and
was the result of a compromise and that he is therefore entitled to reversal of his conviction1.
We disagree.
1
Defendant’s reliance on People v Burgess, 419 Mich 305; 353 NW2d 444 (1984), is misplaced.
(continued…)
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MCL 750.529 provides that an armed robbery occurs when a victim is assaulted, the
perpetrator is armed with a dangerous weapon, and when property is feloniously taken from the
victim’s person or presence. An attempt is established by showing that a defendant intended to
commit a crime but failed to complete it. MCL 750.92.
In issuing its findings of fact, the court did find that each of the elements of armed
robbery had been proven beyond a reasonable doubt. Nonetheless, the court went on to find
defendant guilty of only the lesser included offense of attempted armed robbery and felonyfirearm.2 Based on our review of the lower court record, we can only conclude that the trial
court was “affording defendant a measure of leniency” to relieve him of conviction of a
maximum life-sentence felony, which did not exceed the court’s authority. People v Smith, 231
Mich App 50, 52-52; 585 NW2d 755 (1998).
Because the elements of attempted armed robbery are subsumed in the elements of armed
robbery, i.e., attempted armed robbery is a necessarily included offense of armed robbery, we
find that the court’s verdict was not inconsistent.3 Moreover, defendant has failed to establish
that the court’s verdict prejudiced him in any way, or that he is entitled to relief. The right to due
process of law merely requires that a defendant cannot be convicted of an offense unless each
element of the offense has been proven beyond a reasonable doubt. People v Torres (On
Remand), 222 Mich App 411, 420; 564 NW2d 149 (1997). The lower court record establishes
that every element of attempted armed robbery was proved beyond a reasonable doubt, and the
trial court so found. There has been no error requiring reversal.
III
Next, defendant argues that the use of a photographic lineup while he was in custody
violated his procedural due process right to participate in a corporeal lineup, and also that the
court erred by allowing the evidence to be admitted. We disagree.
No pretrial motion to suppress the photographic lineup evidence was made, nor did
counsel object to its admission at trial. Defendant does not argue that the photo display was
unduly suggestive. This issue is unpreserved for appellate review and our review of the record
convinces us that defendant has failed to carry his burden to show that plain error occurred and
that prejudice resulted People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Because defendant was in custody, he was entitled to have counsel present at any pretrial
identification procedure. People v Kurylczyk, 443 Mich 289, 302 (Griffin, J.); 505 NW2d 528
(1993). Defendant was represented by counsel, even though it was not the counsel who
(…continued)
Burgess involved a claim of an inconsistent verdict rendered by a jury where there was a
multiple-count information. The brief reference to bench trials is pure dicta and, even so, the
opinion does not preclude a trial court sitting as factfinder from exercising leniency or reaching
inconsistent verdicts. The same can be said of People v Vaughn, 409 Mich 463; 295 NW2d 354
(1980).
2
Defendant makes no claim of inconsistency in the verdict relating to the felony-firearm charge.
3
The trial court reached the same conclusion in ruling on defendant’s motion for new trial.
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ultimately represented him at trial. There is no authority for defendant’s position that the counsel
at both procedures must be one and the same individual.
At the hearing on defendant’s motion for new trial, the court explained that it did not
even consider or rely upon the victim’s pretrial identification. At trial, the victim testified that
defendant was “very close” to her during the robbery; defendant held a gun to her side, and
pulled one of her arms; she accidentally hit defendant during the struggle, and defendant kicked
her in the stomach after codefendant knocked her to the ground. She could see the attackers’
faces because “they were so close.” Given the victim’s unwavering in-court identification of
defendant4, the court had no need to rely on her pretrial identification of him and in fact indicated
that it did not.
Based on the totality of the circumstances, we cannot conclude that error occurred. Even
assuming error occurred, defendant has not established prejudice.
IV
Next, defendant argues that there was insufficient evidence to support his convictions.
We disagree. In reviewing the sufficiency of the evidence, this Court must view the evidence in
the light most favorable to the prosecutor and determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe,
440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992); People v Hurst, 205 Mich
App 634, 640; 517 NW2d 858 (1994).
Defendant contends that at the time of the robbery, it was dark outside, that he and the
codefendant were arrested four to five miles from the scene of the crime, there were no witnesses
to the escape vehicle, and that no weapons or stolen property were recovered. Additionally
defendant points out that there was no testimony describing the dispatch which the arresting
officer relied upon to identify defendant as the perpetrator. Thus, defendant asserts, the evidence
was insufficient of identity to support the convictions. We disagree.
To the extent that defendant contends that the victim’s testimony was “speculative,” that
is a credibility determination; this Court should not interfere with the factfinder’s role of
determining the credibility of witnesses. People v Avant, 235 Mich App 499, 506; 597 NW2d
864 (1999). Furthermore, there was evidence that a street light was on; the street light was “right
outside” the house where the offense occurred. Thus, defendant’s repeated contention that
plaintiff failed to establish “as to the actual amount of illumination” is misplaced and, ultimately,
irrelevant; as noted, the victim was consistently unequivocal in her identification of defendant as
one of the assailants. She described what defendant was wearing during the robbery and that
description closely matched what defendant was wearing when he was arrested shortly after the
crime.
4
In ruling on defendant’s motion for new trial, the trial court held that the victim “made a
positive, independent, in-court identification of the defendant as the person who robbed her.”
-3-
The victim was also steadfast and unequivocal in her testimony that defendant carried a
gun. Although no weapon was recovered, the two men fled through an open field near
abandoned houses when the arresting officer pursued them on foot; as he testified, “[t]hey could
have threw it anywhere.” Moreover, the officer testified that he called the police station for
another description of the perpetrators just to make sure that he had remembered correctly; the
description matched defendant and the codefendant “to a T” and included descriptions of the
clothes they were wearing. Viewing the evidence in a light most favorable to the prosecution,
we conclude that a rational trier of fact could find that the essential elements of the crimes were
proven beyond a reasonable doubt.
V
Next, defendant contends that he was denied the effective assistance of trial counsel
because counsel failed to object to the admission of the pretrial identification evidence and failed
to file any pretrial motion to suppress, and also asserts that he was prejudiced by these failures.
We disagree.
Allegations pertaining to ineffective assistance of counsel must first be heard by the trial
court to establish a record of the facts pertaining to such allegations. People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973). In cases such as this, where a Ginther hearing has not been
held, review by this Court is limited to mistakes apparent on the record. Hurst, supra at 641.
Moreover, to establish that defendant’s right to effective assistance of counsel was so
undermined that it justifies reversal of an otherwise valid conviction, this Court must find that
counsel’s representation fell below an objective standard of reasonableness and that the
representation so prejudiced defendant as to deny him a fair trial. People v Pickens, 446 Mich
298, 302-303; 521 NW2d 797 (1994).
Defendant has not established that the pretrial identification was improper or that he was
unrepresented by counsel; accordingly, the identification evidence was properly admitted and
counsel was not ineffective for failing to make an issue of it. Counsel is not required to advocate
a meritless position. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Furthermore, even assuming that counsel’s failure was error, defendant has not shown
that he was prejudiced. As noted above, there was ample evidence connecting defendant to the
robbery, and even if counsel should have attempted to suppress the photographic lineup
evidence, any error did not prejudice defendant.
We also note that on appeal defendant makes the bare bones assertion that counsel’s
failure “to take any action to attempt to suppress statements of the Complainant relating to the
possession of a gun” also constituted ineffective assistance. Defendant has provided no legal or
factual basis for this isolated claim; therefore, we are unable to consider it.
Affirmed.
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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