PEOPLE OF MI V JOSHUA LOPP
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 17, 2011
Plaintiff-Appellee,
v
No. 295662
Wayne Circuit Court
LC No. 09-004221-02
JOSHUA LOPP,
Defendant-Appellant.
Before: WHITBECK, P.J., and O’CONNELL and WILDER, JJ.
PER CURIAM.
Following a bench trial, defendant appeals as of right from his convictions of one count
each of assault with intent to rob while armed, MCL 750.89, armed robbery, MCL 750.529, and
possession of a firearm during the commission of a felony, MCL 750.227b. We affirm.
Defendant’s convictions arose out of three robberies that occurred on January 28, 2009.
In the morning of that day, a woman was sitting in her black Dodge Magnum after dropping her
daughter off at school. An armed man approached and demanded that she give him the car. The
woman gave the man the keys and ran away. On the same day, after school, two students,
Chenay Cornish and Artist Wright, were separately robbed after exiting the school bus.
Defendant was convicted of robbing Cornish and Wright.
Cornish testified at trial that she saw a man with a gun get out of a black Dodge Magnum.
The man aimed the gun at her and then went through her book bag. The driver of the car ordered
the armed man to put her in the car. The man refused and got back into the car; the driver then
drove the car away. Cornish later identified defendant as the driver of the car.
Similarly, Wright testified that as he was walking home from the bus stop, he saw a gunwielding man get out of a black Dodge Magnum. Wright gave the gunman his book bag, coat,
and cell phone. Wright looked into the car as he was being robbed because he wanted to identify
the people involved. Wright subsequently identified defendant as the driver of the car.
On appeal, defendant argues he was denied effective assistance of counsel on two
grounds. First, he claims his trial attorney was ineffective for failing to file a motion to suppress
Cornish’s and Wright’s live lineup identifications of defendant. Second, he claims his trial
attorney was ineffective for filing a notice of alibi defense that was ultimately determined to be
false. We review claims of ineffective assistance of counsel as mixed questions of law and fact.
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People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We examine the trial court’s
factual findings for clear error and review de novo the matters of law. Id. Here, defendant did
not raise the issue in the trial court, so our review is limited to mistakes that are apparent from
the record. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).
Both the United States and the Michigan Constitutions guarantee a defendant the right to
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. Generally, to establish
ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was
below an objective standard of reasonableness under prevailing professional norms; and (2) that
there is a reasonable probability that, but for counsel’s error, the result of the proceedings would
have been different, and the outcome was fundamentally unfair or unreliable. People v Odom,
276 Mich App 407, 415; 740 NW2d 557 (2007), citing Strickland v Washington, 466 US 668,
688, 694; 104 S Ct 2052, 2068; 80 L Ed 2d 674 (1984). Effective assistance of counsel is
presumed, and the defendant bearsa heavy burdenof proving otherwise. Knowles v Mirzayance,
___ US ___; 129 S Ct 1411, 1420; 173 L Ed 2d 251 (2009); People v Seals, 285 Mich App 1, 17;
776 NW2d 314 (2009). Defense counsel has wide discretion as to matters of trial strategy.
Odom, 276 Mich App at 415.
We turn first to defendant’s claim regarding the lineup. A lineup can be so suggestive
that it denies an accused due processof law. People v Hornsby, 251 Mich App 462, 466; 650
NW2d 700 (2002). The fairness of the lineup is evaluated in light of the total circumstances.
See People v Murphy (On Remand), 282 Mich App 571, 584; 766 NW2d 303 (2009). The test is
whether, under the totality of circumstances, the identification procedure was reliable. People v
Davis, 146 Mich App 537, 548; 381 NW2d 759 (1985).
Factors relevant to the fairness of a lineup include the opportunity of the witness to view
the culprit at the time of the crime, the witness’s degree of attention, the accuracy of the
witness’s prior description of the culprit, the level of certainty demonstrated by the witness at the
identification, and the length of time between the crime and the identification. Neil v Biggers,
409 US 188, 199; 93 S Ct 375; 34 L Ed 2d 401 (1972). Discrepancies as to physical
characteristics among the lineup participants do not necessarily render the procedure defective.
People v Holmes, 132 Mich App 730, 746; 349 NW2d 230 (1984). Rather, differences generally
pertain to the weight of an identification and not to its admissibility. Hornsby, 251 Mich App at
466. Differences are significant only to the extent that they are apparent to the witness and
substantially distinguish the defendant from the other lineup participants. People v Kurylczyk,
443 Mich 289, 312; 505 NW2d 528 (1993) (Griffin, J); Hornsby, 251 Mich App at 466.
Contrary to defendant’s argument, the procedure at issue here was not so impermissibly
suggestive as to render the lineup identification irreparably unreliable. Wright and Cornish were
very firm in their identification of defendant. Wright was approximately ten feet from the car
during the robbery, while Cornish was approximately fifteen feet from the car. It was light
outside during both armed robberies, and nothing blocked either victim’s view of defendant in
the driver’s seat of the car. Cornish saw defendant through the partially open side window, and
Wright saw defendant through the side window and the windshield. Although their attention was
mainly on the armed robber, both victims took time to view the driver. Wright took a few
seconds to get a good look at the driver because he wanted to be able to identify the driver.
Cornish’s attention was on the driver because the driver directed the armed robber to put her in
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the car after nothing was found in her book bag to steal. The live lineup occurred just five days
after the robberies.
During the lineup, both victims immediately identified defendant as the driver of the car.
While both acknowledged, after reviewing a photograph of the lineup, that defendant was the
only one with braids, both testified that their independent identifications were based on
defendant’s face. Wright specifically testified that his identification was based on defendant’s
face as the driver; he knew the driver was defendant. Cornish did not pay attention to the other
people’s hair in the lineup and her identification was based on defendant’s face, not the braids.
In sum, the lineup was not so impermissibly suggestive as to render the identifications
irreparably unreliable. Because the lineup was valid, defendant’s claim that his trial counsel was
ineffective for failing to challenge the lineup is without merit. People v Pickens, 446 Mich 298,
309; 521 NW2d 797 (1994). Defense counsel is not required to raise a meritless objection.
People v Kulpinski, 243 Mich App 8, 27; 620 NW2d 537 (2000); People v Torres (On Remand),
222 Mich App 411, 425; 564 NW2d 149 (1997). Moreover, while defense counsel did not file a
motion to suppress the lineup identification, he challenged the accuracy of the identifications
made by Wright and Cornish, and argued that the two based their identifications on defendant’s
braids. Trial counsel’s decision to challenge the accuracy of the identifications, rather than the
identification procedure, was a matter of trial strategy which this Court cannot second-guess on
appeal. Odom, 276 Mich App at 415.
We turn now to defendant’s claim concerning the notice of alibi. Defendant’s trial
counsel filed the notice of alibi defense on May 7, 2009, claiming that defendant was with
Dominique Wilkins during the time the offenses were alleged to have occurred. Following a
police officer’s interview of Wilkins in which she indicated defendant was not with her on the
particular day, plaintiff filed a motion to admit defendant’s false exculpatory statement. At the
motion hearing, trial counsel moved to withdraw the notice of alibi and discussed the original
basis for filing the notice. The trial court granted plaintiff’s motion, finding that the request to
withdraw the notice of alibi defense did not change the fact that defendant had filed false
information with the court. In so doing, the court noted the filing was not a reflection on trial
counsel, that counsel had received information and had acted on it in good faith by filing the
notice of alibi defense.
The failure to reasonably investigate a case can constitute ineffective assistance of
counsel. People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005). When claiming
ineffective assistance due to defense counsel’s unpreparedness, a defendant must show prejudice
resulting from the lack of preparation. People v Caballero, 184 Mich App 636, 640, 642; 459
NW2d 80 (1990). “Even the failure to interview witnesses does not itself establish inadequate
preparation. It must be shown that the failure resulted in counsel's ignorance of valuable
evidence which would have substantially benefited the accused.” Id. at 642 (citations omitted).
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Contrary to defendant’s claims on appeal, the lower court record demonstrates that his
counsel did in fact investigate the alibi defense before filing the notice of alibi. At the motion
hearing, defense counsel stated that he filed the notice of alibi defense based on information he
received on May 7, 2009, about Dominique Wilkins; he further stated that he made a telephone
call to Wilkins to confirm the information he had received.1 The trial court specifically
determined that defense counsel acted in good faith when he filed the notice of alibi defense.
Further, defense counsel argued at trial that the prosecution over-emphasized the importance of
Wilkins’ testimony at trial. Counsel pointed out that defendant told Wilkins about another man’s
responsibility for the robberies, that defendant was merely confused about which date he was
with Wilkins, and that defendant never asked Wilkins to lie for him. With these arguments,
defense counsel employed an appropriate strategy to address the false alibi issue.
Furthermore, even if defense counsel’s decision to file the notice of alibi could be
deemed improper, defendant cannot demonstrate a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different. Frazier, 478 Mich at 243. The
trial evidence indicated that defendant made several phone calls to Wilkins and to another
girlfriend in June 2009. In those phone calls, defendant purportedly stated that he was upset with
Wilkins for her refusal to provide him with an alibi, and that he broke up with her because she
told the police the truth. This evidence is plainly as damaging as the false notice of alibi.
Defendant has not demonstrated that but for the filing of the notice of alibi he would not have
been convicted.
Affirmed.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Kurtis T. Wilder
1
Defendant attached an affidavit signed by Dominique Wilkins in which she avers she was not
contacted by defense counsel prior to filing the notice of alibi defense. The affidavit is dated
June 11, 2010. We cannot consider the proffered affidavit, because it is not part of the lower
court record. Defendant may not expand the record on appeal. People v Powell, 235 Mich App
557, 561 n 4; 599 NW2d 499 (1999).
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