PEOPLE OF MI V CHRISTOPHER SUMMERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 14, 1997
Plaintiff-Appellee,
v
No. 183454
LC No. 94-009373
LOUIS ENRIQUE BELTRAN a/k/a LUIS ENRIQUE
BELTRAN,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 183455
LC No. 94-009373
CHRISTOPHER SUMMERS,
Defendant-Appellant.
Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber,* JJ.
PER CURIAM.
Following a joint bench trial, defendants were convicted of unarmed robbery, MCL 750.530;
MSA 28.798, and sentenced to five to fifteen years’ imprisonment. However, those sentences were
vacated and defendants were each sentenced to a term of five to twenty-two and one-half years for
habitual offender, second, MCL 769.10; MSA 28.1082.1 Defendants’ respective appeals of right have
been consolidated. We affirm.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Richard Rodenick was driving near Gladys St. in the City of Detroit looking for a friend, when
he picked up a group of men to assist in his search. The men drove around the neighborhood,
eventually stopping so that all but one of the passengers could exit the car. Rodenick testified that upon
exiting, defendants punched him through the open driver’s side window and then stole money and a gold
chain. Rodenick added that two other men took his radio, amplifier and cassette tapes. Two days after
the robbery, Rodenick selected defendants’ photographs from a photo array. At trial, he identified
defendants as his assailants.
Defendant Beltran first contends that he is entitled to be resentenced because the sentencing
court failed to inquire into the existence of his prior conviction before enhancing his sentence pursuant to
the habitual offender statute. We agree that the sentencing court failed to comply with the statute but
find that the error does not necessitate resentencing. In 1994, the Legislature amended the habitual
offender statutes, eliminating a defendant’s statutory right to a jury determination of his underlying
convictions for enhancement purposes. 1994 PA 110. Now, the statute provides:
The existence of the defendant’s prior conviction or convictions shall be determined by
the court, without a jury, at sentencing, or at a separate hearing scheduled for that
purpose before sentencing. The existence of a prior conviction may be established by
any evidence that is relevant for that purpose, including, but not limited to, 1 or more of
the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.
(c) Information contained in the presentence report.
(d) A statement of the defendant. [MCL 769.13(5); MSA 28.1085(5).]
In the instant case, the sentencing court neglected to specifically determine the existence of defendant’s
prior conviction at the sentencing hearing. Nevertheless, because information regarding the conviction
was contained in the presentence investigation report and defendant does not wish to challenge the
accuracy or constitutionality of the conviction, we find that remand would serve no useful purpose under
the circumstances of this case. See People v Ristich, 169 Mich App 754, 759; 426 NW2d 801
(1988). His counsel stated:
“Your Honor, Robert Slameka for Mr. Beltran.
I read to Mr. Beltran the presentence report, your Honor. The informations
[sic] is correct. As you know, it’s an update from a presentence report prepared for
Mr. Beltran for Judge Morrow.”
Defendant Beltran argues that he was denied the effective assistance of counsel by trial
counsel’s failure to object to the introduction of his statement to police officers after his arrest. Review
of this unpreserved issue is foreclosed because details of trial counsel’s alleged deficiency are not
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apparent on the record. People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995). The
circumstances surrounding the making of the statement are not sufficiently developed to demonstrate
that the statement was the product of a police interrogation and defendant was not informed of his
Miranda2 rights prior to making the statement. People v Honeyman, 215 Mich App 687, 694; 546
NW2d 719 (1996). Thus, we cannot determine whether the evidence was admissible and whether
representation provided by trial counsel was deficient. People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994); reh den 447 Mich 1202 (1994). People v Daniel, 207 Mich App 47, 59; 523
NW2d 830 (1994).
Next, defendant Beltran argues that he was denied a fair trial by a remark of the prosecutor
during his closing argument. By not objecting at trial, defendant failed to preserve this issue. People v
Gonzalez, 178 Mich App 526, 535; 444 NW2d 228 (1990). No miscarriage of justice would result
from the failure to review this issue because the prosecutor properly commented that the evidence was
uncontradicted. Id.; People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). Furthermore,
defendant’s argument in his pro-per supplemental brief that he was denied the effective assistance of
counsel by trial counsel’s failure to object to the remark is likewise without merit because any objection
would have been futile. Daniel, supra at 59.
In his supplemental brief, defendant Beltran urges this Court to remand for an evidentiary
hearing regarding the issue of whether witness Rodenick had an independent basis for his in-court
identification of defendant. For the first time on appeal, defendant contends that the identification
evidence should have been suppressed because a photographic identification procedure was improperly
used when he was in custody and the photo array was unduly suggestive. While the decision to remand
is within our discretion, we will not do so unless a fundamental injustice would otherwise result. People
v Starlard, 153 Mich App 151, 153; 395 NW2d 41 (1986), vacated on other grounds and remanded
428 Mich 868 (1987). No manifest injustice would result from the failure to remand under the
circumstances of this case because, as more fully explained below, the trial court properly declined to
suppress the evidence when codefendant Summers presented the issues now raised by defendant on
appeal. Id. at 153-154. Furthermore, defendant was not denied the effective assistance of counsel by
trial counsel’s failure to move for an evidentiary hearing or mistrial when he learned of potential
challenges to the evidence because the motions would have been futile. Daniel, supra at 59.
Defendant Beltran also requests in his pro-per supplemental brief that we remand for an
evidentiary hearing regarding his claim that the prosecutor failed to fulfill a promise not to seek
enhancement of his sentence under the habitual offender statutes. Defendant alleges that a plea
agreement entered into in lower court docket number 94-009303, involving a charge of aggravated
stalking, MCL 750.411i; MSA 28.643(9), i cluded a provision that the prosecutor would not seek
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enhancement of defendant’s sentence in the instant case. “[W]here a plea is induced by an unkept
promise, the mandated remedies are specific performance or vacating the plea, with considerable weight
given to the defendant’s preference.” People v Ceteways, 156 Mich App 108, 120; 401 NW2d 327
(1986). When reviewing an assertion that the prosecutor failed to abide by the terms of a plea bargain,
the factual record must support an allegation that a promise remains unfulfilled. People v Davis, 74
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Mich App 624, 626; 254 NW2d 335 (1977). Here, because the record does not reveal the substance
of the plea agreement with respect to the other charges against defendant, we remand for an evidentiary
hearing at which defendant can create a factual record with regard to his claim that a promise remains
unfulfilled.
Defendants contend that there was insufficient evidence presented at trial to convict them of
unarmed robbery. The elements of the offense of unarmed robbery are: “(1) a felonious taking of
property from another, (2) by force or violence or assault or putting in fear, and (3) being unarmed.”
People v Johnson, 206 Mich App 122, 125-126; 520 NW2d 672 (1994). As always, the prosecutor
must also prove beyond a reasonable doubt that the defendant was the person who committed the
crime. People v Young, 146 Mich App 337, 338-339; 379 NW2d 491 (1985); CJI2d 7.8. Viewing
the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence from
which a rational trier of fact could find beyond a reasonable doubt that defendants committed unarmed
robbery. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, modified 441 Mich 1201 (1992);
People v Petrella, 424 Mich 221, 269; 380 NW2d 11 (1985). Questions regarding Rodenick’s
credibility and the evaluation of identification testimony were properly resolved by the trier of fact.
People v Velasquez, 189 Mich App 14, 16; 472 NW2d 289 (1991); People v Daniels, 172 Mich
App 374, 378; 431 NW2d 846 (1989).
Defendant Summers’ remaining issues concern the photographic identification procedure by
which Rodenick initially identified defendants as his assailants. Defendant initially contends that the
identification evidence should have been suppressed because a photo array was improperly used when
he was in custody. Subject to certain exceptions, identification by photograph should not be used
“when a suspect is in custody or when he can be compelled by the state to appear at a corporeal
lineup.” People v Kurylczyk, 443 Mich 289, 298 n 8; 505 NW2d 528 (1993), cert den ___ US ___;
114 S Ct 725; 126 L Ed 2d 689 (1994). The use of photographs may be justified when there are
insufficient number of persons with a defendant’s characteristics available to conduct a lineup. People v
Anderson, 389 Mich 155, 186 n 22; 205 NW2d 461 (1973); People v Hider, 135 Mich App 147,
150; 351 NW2d 905 (1984). Upon review of the circumstances in the instant case, we find that the
trial court did not clearly err i declining to suppress the identification evidence because the police
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officer in charge of the lineup wanted to conduct a corporeal lineup but could not locate sufficient
persons to participate. Barclay, supra at 675; Hider, supra at 150-151.
Defendant Summers also argues that the identification evidence should have been suppressed
because the identification procedure was unduly suggestive. Again, we find that the trial court did not
clearly err in admitting the evidence. Barclay, supra at 675. Defendant correctly notes that his wearing
of a hat and red shirt, along with the location of his photo next to codefendant Beltran’s in the array,
may have been suggestive. A suggestive photographic lineup, however, is not necessarily a
constitutionally defective one. Rather, it is only improper if under the totality of the circumstances the
was a substantial likelihood of misidentification. Kurylczyk, supra at 306. In the instant case,
Rodenick had ample opportunity to view defendants as they drove around t e neighborhood and
h
positively identified them two days after the robbery. While there were some discrepancies in
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Rodenick’s initial description of his assailants, he clarified at trial that the detailed description resembling
defendant provided to police was his description of defendant, not codefendant Beltran. Upon review
of the totality of the circumstances, we are not left with a definite and firm conviction that the trial court
made a mistake in admitting the evidence because the suggestive aspects of the photographic array did
not lead to a substantial likelihood of misidentification. Id. at 304-305; Barclay, supra at 675.
Affirmed, but remanded in docket no. 183454 for an evidentiary hearing on defendant Beltran’s
claim that the prosecutor failed to fulfill a promise not to seek enhancement of his sentence under the
habitual offender statutes. We retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Michael J. Kelly
/s/ John R. Weber
1
Rather than simply enhancing defendants’ sentences for unarmed robbery pursuant to the amended
habitual offender statutes, MCL 769.10-13; MSA 28.28.1082-1085, the trial court sentenced them on
the underlying charge and then vacated those sentences after imposing sentences for habitual offender,
second.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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