PEOPLE OF MI V WILLIE RICHARD POSEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 14, 2010
Plaintiff-Appellee,
v
No. 289820
Wayne Circuit Court
LC No. 08-000833-FC
WILLIE RICHARD POSEY,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Hoekstra and Whitbeck, JJ.
PER CURIAM.
A jury convicted defendant, Willie Posey, of three counts of armed robbery.1 The trial
court sentenced Posey to three concurrent prison terms of 126 to 240 months each. He appeals
as of right. We affirm. We decide this appeal without oral argument.2
I. Basic Facts And Procedural History
On the evening of January 1, 2008, Jasmine Banks, Tiara Davis, and Leslie Sanford were
robbed outside of their grandmother’s Detroit home. All three victims identified Posey as one of
two robbers. The defense theory was misidentification based on differences between the
victims’ descriptions to the police on the night of the incident and Posey’s appearance in court.
Banks and Davis, who were attending a gathering at the home, left the house to walk to a
car parked in front of the house. Davis noticed two men walking nearby. As Banks and Davis
continued walking toward the car, Banks heard someone say, “Don’t move.” Banks looked
directly at the man’s face and saw Posey pointing an object that appeared to be a gun at her face.
Posey demanded money, but Banks said she had no money, so Posey then snatched her purse.
When Banks ran around the side of the car, a white man, later identified as Neil Bilbrey, blocked
her, demanded money, and directed her to be quiet. Banks again stated that she did not have any
money and threw her coat at Bilbrey to prove she had nothing.
1
MCL 750.529.
2
MCR 7.214(E).
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Banks and Davis explained that in the meantime, Posey had approached Davis on the
other side of the car, pointed the object at her face, and demanded money. When Davis
responded that she had no money, Posey also snatched her purse. Unbeknownst to Banks and
Davis, Sanford, Davis’s brother, was sitting in the front seat of the car talking on a cell phone.
Sanford indicated that when he realized a robbery was taking place, he opened the car door, but
before he could get out, Posey struck him in his mouth with an object that was either “a play gun
or a real gun.” Sanford returned a punch and, in turn, Posey pointed the gun at him, demanded
money, and took his cell phone from his hand. By this time, other people had come out onto the
porch, observed what was happening, went back in the house, and returned with several others.
Posey and Bilbrey fled, but the group gave chase, eventually catching Bilbrey.
The witnesses provided descriptions of Posey to the police. Upon Bilbrey’s arrest, he
claimed that Posey forced him to participate in the robbery and provided information about
Posey’s location. The police went to a vacant house where they observed Bilbrey’s girlfriend,
Ashley Kurtz, and a black man outside the house. After confirming that Kurtz was not being
held against her will, the officers entered the house where they found and arrested Posey because
he matched the description of the robber.
The next day, Banks and Davis identified Posey as the robber in a corporal lineup.
Michael Blake, one of the family members who chased Posey following the robbery, could not
identify anyone in the lineup. Sanford did not attend a lineup. At trial, Banks, Davis, and
Sanford identified Posey and indicated that they were certain about their identification. Banks,
Davis, Sanford, and a police officer explained that since his arrest on the night of the incident,
Posey appeared to have gained weight, gained muscle or “beefed up,” changed his hair, and his
skin appeared lighter.
II. Mistrial
A. Standard Of Review
Posey argues that the trial court abused its discretion by denying his motion for a mistrial
based on an improper character reference and an unduly suggestive identification procedure.
This Court reviews for an abuse of discretion a trial court’s ruling on a motion for a mistrial.3 “A
mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant
and impairs his ability to get a fair trial.”4
B. “Narcotics User” Reference
During the prosecutor’s direct examination of Sergeant Cregg Hughes, the following
exchange occurred in which Sergeant Hughes referred to Posey as a “narcotics user”:
3
People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995).
4
Id. (internal citations omitted).
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Q. And how soon after—let’s talk specifically about the defendant in this case
today. How soon after Mr. Posey was brought in did you first see him?
A. Mr. Posey I don’t believe that I saw until the next day on January 2nd
sometime in the early afternoon.
Q. And when you saw him, how did he appear?
A. Well the first thing that came to my mind was a narcotics user when I saw
him.
Defense counsel objected, arguing improper and prejudicial character evidence, and the
trial court sustained the objection. Defense counsel then moved for a mistrial, and the trial court
heard arguments outside the presence of the jury. Defense counsel argued that a mistrial was
required because the response was designed to improperly taint Posey. The prosecutor
responded that she was attempting to lay a foundation for the introduction of the booking
photograph, which had already been discussed, and that the inappropriate response could be
cured with a jury instruction. The trial court admonished Sergeant Hughes for making the
inappropriate comment and cautioned him about his future testimony. After the jury returned,
the trial court gave the following instruction:
Members of the jury, I’m instructing you to disregard Sergeant Hughes’
unsolicited, unwarranted comments about Mr. Posey appearing to be some kind of
drug user. He knows that was wrong to say and I think he is just trying to
prejudice you.
Posey correctly notes that a prosecutor may not indiscriminately introduce prior bad acts
of a defendant.5 However, “an unresponsive, volunteered answer to a proper question is not
grounds for the granting of a mistrial.”6 Here, the response was an unsolicited answer to a
properly asked question intended to elicit a response about how Posey physically looked on the
date after his arrest. Indeed, the main issue in this case was identification and, during defense
counsel’s cross-examination of the eyewitnesses, defense counsel elicited that Posey’s
appearance at trial differed from descriptions of him on the night of the robbery. It is reasonable
to expect that the prosecutor was anticipating an answer similar to the one Sergeant Hughes gave
when the question was again asked after the trial court’s ruling:
Q. How did Mr. Posey look? What did he look like when you first saw him the
day after his arrest?
A. He was skinny. He was dirty. He was unkempt. He was—his hair was kind
of like that but it was more out of control.
5
See MRE 404(b)(1).
6
Haywood, 209 Mich App at 228.
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***
Q. And is that photograph, People’s Exhibit Number 1, a fair an accurate
description of how Mr. Posey appeared when you saw him the day after his
arrest?
A. It was.
Moreover, Posey’s right to a fair trial was protected by the trial court’s instruction to the
jury to disregard the remark. In its final instructions, the trial court further instructed the jury
that it was required to follow the court’s instructions and that it was to decide the case based only
on the properly admitted evidence. “Jurors are presumed to follow their instructions[.]”7
C. Suggestive Identification Procedure
On the first day of trial, Banks and Davis saw a booking photograph of Posey, which had
an indication on it that Kurtz had identified Posey as the person who planned the robbery. Kurtz
did not testify at trial. “An identification procedure that is unnecessarily suggestive and
conducive to irreparable misidentification constitutes a denial of due process.”8 An improper
suggestion may arise when a witness is shown only one person because the witness is tempted to
presume that the photograph is of the assailant.9
Contrary to defendant’s reliance on People v Gray, this case did not involve a standard
photographic identification where a witness was shown a photograph to determine if she could
identify the suspect. Rather, at the time of trial, Banks and Davis had already identified Posey in
a corporal lineup and at the preliminary examination. Michael Blake, who also saw Posey’s
booking photograph on the first day of trial, testified that he could not identify Posey at a lineup
on the day after the robbery, but was able to identify him at trial. In addressing this
inconsistency, Blake explained that his cousin had shown him a photograph of Posey that was
included in some paperwork, and he assumed Posey was the robber, but he was not sure.
Defense counsel sought a mistrial based on the victims observing Posey’s photograph
before testifying and identifying him as the robber. After further discussion and testimony, it
was brought out that the prosecutor had given paperwork to Davis that inadvertently included
Posey’s booking photograph. Davis kept the photograph and showed it to Banks and Blake.
Davis denied that her identification of Posey at trial was based on the photograph. In denying
the motion for a mistrial, the trial court found an independent basis for the in-court
identifications of Banks and Davis because both had identified Posey at a lineup immediately
and had seen him at the preliminary examination and at other court hearings.
7
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).
8
People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001).
9
People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).
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The record supports the trial court’s finding that there was an independent basis for the
in-court identifications of Banks and Davis. The following factors are considered in determining
whether an independent basis exists for the admission of an in-court identification:
(1) [P]rior relationship with or knowledge of the defendant; (2)
opportunity to observe the offense, including length of time, lighting, and
proximity to the criminal act; (3) length of time between the offense and the
disputed identification; (4) accuracy of description compared to the defendant’s
actual appearance; (5) previous proper identification or failure to identify the
defendant; (6) any prelineup identification lineup of another person as the
perpetrator; (7) the nature of the offense and the victim’s age, intelligence, and
psychological state; and (8) any idiosyncratic or special features of the
defendant.[10]
Here, Banks and Davis did not have a prior relationship with Posey, but each testified
that she was certain of her identification of him as the robber. Banks testified that the robbery
occurred over the course of five to seven minutes, and both witnesses testified that they had a
good opportunity to observe Posey during the incident. Posey was only a short distance from
each victim when he pointed a gun, demanded money, and snatched the purses from their hands.
Banks explained that Posey was “right on the side of [her]” and she “looked directly at his face.”
Davis explained that she got a “good look at” Posey and “looked him dead in his eyes.” The area
was sufficiently lit by a porch light and streetlight.
Thus, the witnesses had a substantial opportunity to view Posey. In addition, Banks and
Davis had both identified Posey in a corporal lineup the day after the robbery. Banks identified
Posey within “30 seconds,” and Davis identified him immediately. Davis explained that she
could identify Posey “as soon as [she] saw him” because she “could not forget that face” and
“could not get the picture of him out of her mind.” Banks explained that she identified Posey
because she remembered his face, hair, and the jacket he was wearing.
A few weeks later, Banks and Davis again both identified Posey at the preliminary
examination and testified that they were sure about the identification. Davis noted that at the
time of the preliminary examination, Posey was still “skinnier” and had not yet gained weight.
Neither Banks nor Davis had made incorrect identifications, or identified anyone other than
Posey. Although their descriptions differed somewhat from how Posey appeared at the time of
trial, there was testimony that their descriptions were similar to Posey’s appearance when he was
arrested on the night of the robbery.
Although the victims did not provide any special identifying characteristics of Posey,
there was no evidence that he had any unusual characteristics about his appearance that the
victims should have noticed, such as visible birthmarks, scars, or tattoos. It is not necessary that
all factors be given equal weight,11 and, considering the victims’ substantial opportunity to
10
People v Davis, 241 Mich App 697, 702-703; 617 NW2d 381 (2000).
11
People v Kachar, 400 Mich 78, 97; 252 NW2d 807 (1977).
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observe Posey and the totality of the circumstances, the trial court did not clearly err in finding
that there was an independent basis for their identifications. For these reasons, the trial court did
not abuse its discretion in denying defendant’s motion for a mistrial.
III. Ineffective Assistance of Counsel
A. Standard Of Review
Posey argues that defense counsel was ineffective for failing to request the appointment
of an expert on eyewitness identification. Because Posey failed to raise this issue in the trial
court in connection with a motion for a new trial or an evidentiary hearing, this Court’s review is
limited to mistakes apparent on the record.12
B. Legal Standards
Effective assistance of counsel is presumed and a defendant bears a heavy burden of
proving otherwise.13 To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that there is a
reasonable probability that the result of the proceeding would have been different but for
counsel’s error.14
C. Applying The Standards
We conclude that Posey has failed to demonstrate that defense counsel’s decision not to
request an identification expert was objectively unreasonable, or that there is a reasonable
probability that the outcome would have been different had an expert witness been requested.
MCL 775.15 provides a trial court with discretion to appoint an expert witness for an indigent
defendant upon request.15 The statute requires a defendant to show that an expert’s testimony is
required to enable the defendant to “safely proceed to a trial.” To be entitled to the appointment
of an expert witness, an indigent defendant must demonstrate a nexus between the facts of the
case and the need for an expert.16 It is not enough for the defendant to show a mere possibility of
assistance from the requested expert.17 Without an indication that expert testimony would likely
12
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Sabin (On Second
Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
13
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Effinger, 212
Mich App 67, 69; 536 NW2d 809 (1995).
14
People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).
15
People v Carnicom, 272 Mich App 614, 616-617; 727 NW2d 399 (2006).
16
People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838 (1995).
17
People v Tanner, 469 Mich 437, 443; 671 NW2d 728 (2003).
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benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for
appointment of an expert witness.18
Here, Posey has failed to make the necessary showing that an expert was necessary for
him to safely proceed to trial. Through cross-examination and other evidence, defense counsel
was able to challenge the strength and reliability of the identification testimony and elicit
apparent discrepancies and arguable bases for questioning the accuracy of the identifications.
We note that during voir dire, defense counsel emphasized that identification was the
central issue at trial. During opening argument, defense counsel highlighted some of the
problems with the victims’ identifications of Posey as the robber. Throughout trial, defense
counsel elicited several weaknesses in the eyewitnesses’ identifications, including the differences
between their descriptions of the robber on the night of the incident and how Posey actually
appeared at trial, as well as the fact that the incident was brief and occurred in the dark with poor
lighting. Defense counsel elicited Banks’s admission that, after the robbery, she was uncertain if
she could identify the assailant if she saw him again and questioned her about being more
focused on the gun than on the perpetrator’s face.
Further, defense counsel questioned the victims about whether the stress of having a gun
pointed in their faces made it difficult for them to accurately identify the assailant. Defense
counsel cross-examined Banks and Davis about whether they identified Posey at the lineup based
on what he wore (a black jacket) instead of his actual physical appearance. He also elicited that
Sanford did not attend a lineup. In addition, defense counsel cross-examined the officer who
conducted the lineup, eliciting that there was only a written report but no photographic evidence
of the physical features of the lineup participants.
Also, counsel highlighted issues with Davis’s recall through questioning about her
confusion as to whether the same prosecutor was at the preliminary examination, and issues with
Sanford’s recall by questioning him about how many females were outside during the robbery.
In closing argument, defense counsel summarized the testimony and vigorously argued that
Posey’s identification was not established beyond a reasonable doubt.
Because counsel was able to challenge the reliability and accuracy of the identification
evidence through means of argument, cross-examination, and other evidence, Posey has failed to
show that defense counsel was ineffective for failing to request the appointment of an
identification expert, or that he was prejudiced by the absence of such an expert at trial.
Consequently, Posey cannot establish a claim of ineffective assistance of counsel.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
18
Jacobsen, 448 Mich at 641; Carnicom, 272 Mich App at 617.
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