PEOPLE OF MI V TERRELL C LYONS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 21, 2004
Plaintiff-Appellee,
v
No. 244550
Wayne Circuit Court
LC No. 97-000590-01
TERRELL C. LYONS,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Neff and Markey, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted on February 9, 1998, of carrying a
concealed weapon, MCL 750.227; possession of less than twenty-five grams of heroin, MCL
333.7403(2)(a)(v); possession of marijuana, MCL 333.7403(2)(d); and possession of a firearm
during the commission of a felony, MCL 750.227(b). Defendant absconded before sentencing
and was subsequently arrested in April 2002. On June 18, 2002, defendant was sentenced to
prison terms of one to five years for the CCW conviction, one to four years for the possession of
heroin conviction, four months to one year for the possession of marijuana conviction, and two
years for the felony firearm conviction. On remand from this Court, the trial court denied
defendant’s motion for new trial that was based on the claims of ineffective assistance of counsel
and newly discovered evidence. Defendant appeals as of right. We affirm.
Defendant first contends that his trial counsel provided ineffective assistance in that she
failed to move to suppress the evidence against him. He asserts that evidence seized by police
officers after entering Recia Buchanan’s home where he lived should have been suppressed as
the fruit of an unlawful warrantless entry. He further argues that if his attorney had filed a
motion, the evidence discovered as a result of the entry would have been suppressed. In order to
prevail, "defendant must show (1) that the attorney's performance was objectively unreasonable
in light of prevailing professional norms and (2) that, but for the attorney's error or errors, a
different outcome reasonably would have resulted." People v Harmon, 248 Mich App 522, 531;
640 NW2d 314 (2001).
The record reveals that during trial officers testified that upon arriving at the door of the
home into which defendant ran a woman answered the door and let them in. The testimony was
that the entry was consensual, and that they entered without force. Defendant testified at trial
that it was he who opened the door to step outside and that the police officers “barged” into the
house. Buchanan did not testify at trial. Defendant now argues that because he informed his
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counsel of contradictory evidence regarding the officers’ entry into the home, trial counsel
should have moved to suppress the evidence found in the home as a result of a warrantless entry.
At an evidentiary hearing, defense counsel testified that her recollection of the case was
minimal due to the passage of nearly six years. She testified that it was her practice, however, to
file a motion to suppress if the facts as presented to her warranted such a motion. She indicated
that because she did not file a motion to suppress in this case, the facts as known to her would
not support the filing of the motion. She also noted that the police report in this case indicated
that it was Buchanan who opened the door and allowed the officers inside. The trial court found
defense counsel’s testimony to be credible, and found the testimony of defendant and Buchanan
regarding the officer’s entry into the house not to be credible.
Defendant’s argument is premised merely on the fact that his version of the officers’
entry into the home differed from the officers’ version of their entry into the home. Defendant’s
argument rests on a credibility determination. In light of the fact that defense counsel testified
that she would have filed a motion to suppress if she thought such a motion was warranted by the
facts, and in light of the fact that the trial court found defendant’s and Buchanan’s testimony at
the hearing on remand to not be credible, we cannot conclude that defense counsel’s
performance was objectively unreasonable in light of prevailing professional norms or that a
different outcome would have resulted had defense counsel filed a motion to suppress.1 Thus,
defendant’s claim of ineffective counsel is without merit.
Defendant also argues that the trial court abused its discretion in denying his motion for a
new trial based on newly discovered evidence that his cousin, Mark Lee, made a statement in
July 2003 corroborating defendant’s testimony that it was Mark Lee, and not defendant, who ran
from the police and entered defendant’s residence. This Court reviews a trial court’s decision to
grant or deny a motion for new trial for an abuse of discretion. People v Lemmon, 456 Mich 625,
648 n 27; 576 NW2d 129 (1998). A mere difference in judicial opinion does not establish an
abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). A trial court’s
factual findings are reviewed for clear error. MCR 2.613(C).
For a new trial to be granted on the basis of newly discovered evidence, a defendant must
show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the
newly discovered evidence was not cumulative; (3) including the new evidence upon retrial
would probably cause a different result; and (4) the party could not, using reasonable diligence,
have discovered and produced the evidence at trial. Cress, supra at 692.
The trial court found that:
[T]he identity of Mark Lee is not newly discovered evidence. Testimony
that Mark Lee ran into the house immediately before the police arrived was
presented at trial. Lee lived four doors down from Ms. Buchanan-Lyons (or
1
Defense counsel’s inability to remember the specific facts of this case is a direct consequence
of the fact that defendant absconded before sentencing and was sentenced four years after his
conviction.
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across the street as Lyons said) and was Lyons’ cousin. The Court specifically
addressed the issue of Lee in its findings of fact. This evidence is simply not
newly discovered.
Here, defendant’s defense was mistaken identity and he maintained that Lee was the
suspect that the police were pursuing. We find no clear error in the trial court’s finding that
Lee’s alleged involvement in this matter clearly was known to defendant before trial and no
abuse of discretion in the court’s determination that the evidence is not newly discovered
evidence.2
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Janet T. Neff
/s/ Jane E. Markey
2
Further, it is unlikely that the statement would make a different result probable on retrial.
Neither defendant nor Buchanan informed the police upon their entry into the home and upon
defendant’s arrest that Lee was the person the police were seeking and that Lee was upstairs.
Additionally, the police testified that they never lost sight of the suspect from the time the
suspect dropped the weapon until the time the suspect entered the house, that they were certain
that defendant was the person they were chasing, and that defendant’s shoes were muddy.
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