PEOPLE OF MI V HERMAN LEWIS CHEESE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 2007
Plaintiff-Appellee,
v
No. 272311
Oakland Circuit Court
LC No. 2006-208232-FC
HERMAN LEWIS CHEESE,
Defendant-Appellant.
Before: Wilder, P.J., and Borrello and Beckering, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit armed
robbery, MCL 750.89; assault with intent to do great bodily harm, MCL 750.84; possession of a
firearm by a felon, MCL 750.224f; and three counts of possession of a firearm during the
commission of a felony, MCL 750.227b. Defendant was sentenced as a fourth habitual offender,
MCL 769.12, to 25 to 50 years’ imprisonment for the assault with intent to commit an armed
robbery conviction, 15 to 30 years’ imprisonment for the assault with intent to do great bodily
harm conviction, 5 to 10 years’ imprisonment for the felon in possession of a firearm conviction,
and two years’ imprisonment for each felony-firearm conviction. We affirm.
On February 22, 2006, defendant entered a party store in Farmington Hills, Michigan,
grabbed a package of beer and proceeded to the counter. After placing the beer on the counter
and exchanging greetings with the clerk, a masked man entered the party store with a gun drawn.
Defendant then moved around the counter, drew a gun and pointed it at the clerk, and demanded
money. The clerk hit the panic button, after which defendant fired at least three shots, hitting the
clerk once in the right leg and twice in the left leg. Defendant and the masked man fled empty
handed. The clerk lived, but required two surgeries. Surveillance videotape captured the crimes.
Defendant contends that he suffered a deprivation of his constitutional right to counsel,
because his counsel provided ineffective assistance by failing to request a live line-up following
the victim’s failure to positively identify defendant in a photographic array. We disagree.
Where the claim for ineffective assistance of counsel is unpreserved, our review is limited to
errors apparent on the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
The United States Constitution provides: “In all criminal prosecutions, the accused shall
enjoy the right to . . . have the Assistance of Counsel for his defence.” US Const, Am VI.
Similarly, the Michigan Constitution provides: “In every criminal prosecution, the accused shall
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have the right . . . to have the assistance of counsel for his or her defense . . . .” Const 1963, art
1, § 20. It is well established that these provisions not only protect the right of an accused to hire
counsel, but affirmatively require the government to provide counsel for the defense of an
indigent accused. In addition, these provisions have been interpreted, under the common law of
the constitution, to require that the attorney provided by the government must provide “effective”
assistance. E.g., Strickland v Washington, 466 US 668; 104 S Ct 2052, 80 L Ed 2d 674 (1984);
Schriro v Landrigan, ____ US ____; 127 S Ct 1933, 1939; 167 L Ed 2d 836 (2007).
A constitutional claim of ineffective assistance of counsel is reviewed under the standard
established in Strickland, which requires the defendant to show that, under an objective standard
of reasonableness, counsel made an error so serious that counsel was not functioning as an
attorney guaranteed under the Sixth Amendment. People v Harris, 201 Mich App 147, 154; 505
NW2d 889 (1993). The right to counsel under the Michigan Constitution does not impose a
more restrictive standard than that established in Strickland. People v Pickens, 446 Mich 298,
318-319; 521 NW2d 797 (1994).
Effective assistance of counsel is presumed and defendant bears the burden of proving
otherwise. People v Rocky, 237 Mich App 74, 76; 601 NW2d 887 (1999). To succeed on a
claim of ineffective assistance of counsel, the defendant must show that, but for an error by
counsel, the result of the proceedings would have been different and that the proceedings were
fundamentally unfair or unreliable. People v Garza, 246 Mich App 251, 255; 631 NW2d 764
(2001). The defendant bears a “heavy burden” on these points. People v Carbin, 463 Mich 590,
599; 623 NW2d 884 (2001). Defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140;
659 NW2d 611 (2003). “This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.”
Garza, supra, at 255.1
A trial court has discretion in granting a defendant’s motion for a line-up, People v
Maire, 42 Mich App 32, 37-38; 201 NW2d 318 (1972); thus, a defendant is not entitled to such a
line-up as a matter of right, People v Buchanan, 107 Mich App 648, 653; 309 NW2d 691 (1981).
The record demonstrates that the victim identified two suspects (including defendant) as the
potential shooter from a photographic array. However, the victim identified defendant as the
shooter at the preliminary examination and at trial. Further, the victim indicated that defendant
was depicted in the surveillance videotape. The victim explained that he selected two potential
shooters (one of whom was defendant) via the photographic array because the photographs were
black and white.2 However, at the preliminary examination and trial, the victim identified
1
Defendant filed an untimely motion for remand, which was insufficient to preserve his claim
for ineffective assistance of counsel. See People v Snider, 239 Mich App 393, 423; 608 NW2d
502 (2000) (a defendant must move for a hearing pursuant to People v Ginther, 390 Mich 436;
212 NW2d 922 (1973), or a new trial in order to preserve a claim for ineffective counsel).
2
There was also testimony by a police witness that defendant’s photograph was from his driver’s
license which had a distinctive blue background. The photographic array used black and white
copies of photographs so that all of the photographs appeared the same. The police witness
indicated that this was done so defendant’s photograph would not stand out from the other
(continued…)
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defendant. At trial, the victim’s identification was unequivocal, because defendant was right in
front of him and the victim remembered the shooting. Further, even if the victim was unable to
identify defendant as the shooter, there was other testimony that defendant was the shooter.
Defendant’s former girlfriend and former employer identified him from the surveillance
videotape. Defendant was depicted as the shooter in that videotape. Additionally, the
surveillance videotape was played at trial for the jury.
Defendant has not overcome the strong presumption that defense counsel’s performance
constituted sound trial strategy, nor has defendant shown that his counsel’s performance fell
below an objective standard of reasonableness where his counsel did not move for a live line-up
before the preliminary examination. Strickland, supra at 690-691; Matuszak, supra at 57-58.
Here, defense counsel could legitimately have elected to forego a live line-up, and attack the
victim’s identification on cross-examination. This Court will not substitute its judgment for that
of counsel regarding matters of trial strategy, nor will it assess counsel’s competence through
hindsight. People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). The failure of a
strategy does not render counsel’s assistance ineffective. People v Kevorkian, 248 Mich App
373, 415-416; 639 NW2d 291 (2001). Moreover, defendant has failed to demonstrate a
reasonable probability that, but for defense counsel’s alleged error, the trial’s outcome would
have been different. Matuszak, supra at 58.
Next, defendant argues that the trial court provided improper jury instructions by failing
to give an instruction on specific intent. At trial, defense counsel expressed satisfaction with the
trial court’s instructions, and thereby waived this issue. People v Tate, 244 Mich App 553, 559;
624 NW2d 524 (2001).
Affirmed.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
(…continued)
potential suspects.
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