PEOPLE OF MI V RUBEN ALVIN SCOTT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2002
Plaintiff-Appellee,
v
No. 225944
Oakland Circuit Court
LC No. 99-169190-FH
RUBEN ALVIN SCOTT,
Defendant-Appellant.
Before: Hood, P.J., and Murphy and Markey, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of unarmed robbery, MCL 750.530, and
he was sentenced as a third habitual offender, MCL 769.11, to 6 ½ to 30 years’ imprisonment.
Defendant appeals as of right. We affirm.
Defendant was convicted of robbing the owner and operator of a home health care
business. The victim was robbed after defendant, unarmed, pushed his way into a home, where
the victim was providing health care services. Defendant took cash that was intended to be used
by the victim to pay his employees, some of whom worked various shifts at the home in which
the robbery occurred. Defendant’s fingerprints were found on the front door of the home, a
bathroom toilet, and on tape used to tie up the victim. Defended argued that he had been in the
home previously to visit one of the victim’s employees, but he denied any involvement in the
robbery or being in the home on the day of the robbery. Defendant asserted that he could not
have committed the robbery because he was on crutches due to a gunshot wound that shattered
his left ankle.
Defendant argues that the trial court erred when it rejected defendant’s challenge to the
prosecutor’s use of a peremptory challenge to strike the only African-American juror in violation
of Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).1
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The prosecutor argues that defendant has not preserved this issue. To preserve an objection to
the jury selection process, a defendant must object at trial or the defendant has waived the issue
on appeal. People v Schmitz, 231 Mich App 521, 526; 586 NW2d 766 (1998). We disagree with
the prosecutor and conclude that defendant has preserved this issue for appellate review.
Defendant objected to the prosecutor’s use of the peremptory challenge; however, the trial court
(continued…)
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This Court’s review of a trial court’s Batson ruling is for an abuse of discretion. People v
Howard, 226 Mich App 528, 534; 575 NW2d 16 (1997). In this case, we find that the trial court
did not abuse its discretion when it rejected defendant’s challenge to the prosecutor’s use of a
peremptory challenge to exclude the only African-American juror.
In Batson, supra at 96, the Supreme Court of the United States held that, in bringing forth
a prima facie case of discrimination, a defendant must show that: (1) the juror belonged to a
recognized racial group, (2) the prosecutor exercised a peremptory challenge to excuse the juror,
and (3) the facts and relevant circumstances provided an inference that the prosecutor used a
peremptory challenge in an attempt to exclude the juror based on race. Once a defendant makes
a prima facie showing, the burden shifts to the prosecutor to come forward with a neutral
explanation for excusing the juror. Id. at 97. The prosecutor’s explanation for exercising the
peremptory challenge need not rise to the level justifying the exercise of a challenge for cause.
Id. The mere fact that the prosecutor used a peremptory challenge to excuse an AfricanAmerican is insufficient to make a prima facie showing of discrimination. People v Williams,
174 Mich App 132, 137; 435 NW2d 469 (1989). Additionally, the mere fact that no member of
a defendant’s race ended up sitting on the jury is likewise insufficient to establish a prima facie
showing of discrimination. Id.
In this case, defendant’s only argument was that the juror was improperly excluded
because she was African-American. This is simply insufficient. Defendant cannot establish a
prima facie case demonstrating discrimination simply by indicating that the only AfricanAmerican juror was excluded. Moreover, the prosecutor proffered a neutral explanation for
exercising the peremptory challenge. The trial court’s rejection of defendant’s Batson challenge
did not constitute an abuse of discretion.
Next, defendant argues that he was denied due process by the in-court identification made
by the victim during the trial. We disagree. Defendant maintains that the in-court identification
should have been suppressed because defendant was the only African-American in the courtroom
and was seated at defendant’s table when the victim identified him as the robber. Before trial,
the victim was presented with a photographic lineup containing defendant’s photograph, and he
failed to identify defendant. Therefore, according to defendant, the victim could have identified
defendant based on recognizing defendant from that photo and not because the victim recognized
defendant as the robber. Defendant, however, does not challenge the propriety of the pretrial
identification procedure.
Defendant has not preserved this issue for appellate review because defendant did not
object to the in-court identification made by the victim at trial. In order to avoid forfeiture of an
unpreserved issue on appeal, defendant must show: (1) that an error occurred; (2) that the error
was plain, i.e., clear or obvious; and (3) that the plain error affected substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). This test applies to unpreserved allegations
(…continued)
discussed the matter off the record. Later, the trial court instructed defendant to place the matter
on the record and defendant did so.
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of both constitutional and non-constitutional error. Id. at 764. Once defendant has satisfied
these requirements, this Court must exercise discretion in deciding whether to reverse. Id. at
763. Reversal is warranted only when the plain, unpreserved 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.
An identification procedure can be so suggestive and conducive to irreparable
misidentification that it denies an accused due process of law. People v Williams, 244 Mich App
533, 542; 624 NW2d 575 (2001). We find it unnecessary to determine whether the in-court
identification was improperly suggestive, or whether there was an independent basis for the
identification. In People v Davis, 106 Mich App 351, 352; 308 NW2d 206 (1981), a witness was
unable to identify the defendant during a pretrial photographic showup, and the defendant
argued, therefore, that it was improper to allow the witness to identify him at trial. The pretrial
identification was not impermissibly suggestive, and this Court stated that “[w]e find no
authority in support of defendant’s contention that the in-court identification was per se violative
of due process or that the prosecution was required to establish an independent basis for the
witness’s in-court identification of defendant.” Id.
In People v Jordan, 34 Mich App 360, 365; 191 NW2d 58 (1971), the defendant
“asserted that the trial court committed reversible error by allowing the decedent’s widow to
identify the defendant in court as one of the robbers when she had been unable to identify him at
a previous lineup and the preliminary examination.” In Jordan, the defendant conceded that
there was no improper or tainted out-of-court identification. Id. The Jordan panel concluded
that there was no error in allowing the identification because the matter involved weight and
credibility, and because the defense attorney was able to present evidence at trial regarding the
witness’ inability to previously identify the defendant at the lineup. Id. at 366.
Here, there was no error in allowing the victim to identify defendant at trial because there
is no claim that the pretrial photographic showup was impermissibly suggestive, because the
prosecutor did not have to present an independent basis, and because defense counsel was able to
attack the victim’s credibility based on the previous inability to identify defendant and the
circumstances of the crime. Moreover, assuming error in allowing the in-court identification,
any error was harmless and did not affect defendant’s substantial rights, given that defendant was
able to thoroughly challenge the credibility of the victim’s identification, and given the extensive
fingerprint evidence connecting defendant to the crime scene.
Finally, defendant argues that he was denied the effective assistance of counsel.
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,
our review is limited to mistakes apparent on the record. People v Sabin (On Second Remand),
242 Mich App 656, 659; 620 NW2d 19 (2000).
In People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), our Supreme Court adopted a
two-pronged test for determining whether a defendant has been denied effective assistance of
counsel as set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674
(1984). In order to establish that defendant’s right to effective assistance of counsel was violated
and that this violation is sufficient to justify reversal of an otherwise valid conviction, defendant
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must show that: (1) counsel’s representation fell below an objective standard of reasonableness,
and (2) the representation so prejudiced the defendant as to deprive him of a fair trial. Pickens,
supra at 302-303. To demonstrate prejudice, the defendant must show that, but for counsel’s
error, the result of the proceedings would have been different. People v Henry, 239 Mich App
140, 146; 607 NW2d 767 (1999).
Defendant must overcome the presumption that the challenged action or omission could
conceivably be considered sound trial strategy under the circumstances. People v Rice (On
Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999). We will not second-guess counsel’s
trial tactics, People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994),
“nor will [we] assess counsel’s competence with the benefit of hindsight,” People v Rockey, 237
Mich App 74, 76-77; 601 NW2d 887 (1999).
First, defendant argues that his trial counsel was ineffective because he failed to object to
the in-court identification of defendant by the victim. Because we have determined that the in
court identification was proper, defense counsel cannot be deemed ineffective for failing to
register a meritless objection. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105
(2001).
Second, defendant argues that his trial counsel was ineffective because he failed to
produce medical records during the trial. Defendant argues that the medical records would have
confirmed that defendant could not have committed the armed robbery because his foot was
broken and he was on crutches at the time of the incident. Because our review is limited to the
record, and because the record does not indicate any specifics regarding the information
contained in the medical records, defendant cannot overcome the presumption that defendant’s
trial counsel elected not to admit the medical records as a matter of trial strategy. Furthermore,
defendant fails to show that he was prejudiced by the failure to introduce the records.
Third, defendant argues that his trial counsel was ineffective because he failed to request
an adjournment after two defense witnesses did not appear to testify at trial. We disagree.
The record indicates that defendant’s trial counsel requested assistance, before jury
selection, with serving two defense witnesses with subpoenas. The trial court agreed to provide
defendant with assistance in serving these two witnesses. However, the next day, defendant’s
trial counsel explained that one witness was served, but refused to appear, and the other witness
could not be located.
Whether to call a witness to testify is presumed to be a matter of trial strategy. Rockey,
supra at 76. Here, defendant has provided no information about what the witnesses would have
testified to. See People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999). Therefore, we
cannot conclude that defendant’s trial counsel acted unreasonably or that the absence of this
testimony prejudiced defendant.
Finally, defendant argues that his trial counsel was ineffective because he failed to
sufficiently preserve an objection to the prosecutor’s use of a peremptory challenge to remove
the only African-American juror. Defendant did not raise this issue in his question presented.
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Therefore, defendant has waived appellate review of this issue. Phinney v Perlmutter, 222 Mich
App 513, 564; 564 NW2d 532 (1997). Regardless, we find that defense counsel’s actions did not
fall below an objective standard of reasonableness, where counsel did object to the prosecutor’s
use of the peremptory challenge.
Affirmed.
/s/ Harold Hood
/s/ William B. Murphy
/s/ Jane E. Markey
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