PEOPLE OF MI V MARK EARL WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 28, 1997
Plaintiff-Appellee,
v
No. 185321
Oakland Circuit Court
LC No. 94-134727-FH
MARK EARL WHITE,
Defendant-Appellant.
Before: Fitzgerald, P.J., and MacKenzie and Taylor, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of unarmed robbery, MCL 750.530; MSA
28.798, malicious destruction of police property, MCL 750.377b; MSA 28.609(2), failure to obey a
police officer’s signal, MCL 750.479a; MSA 28.747(1), two counts of uttering and publishing, MCL
750.249; MSA 28.446, and two counts of resisting and obstructing a police officer, MCL 750.479;
MSA 28.747. Defendant subsequently pleaded guilty to two counts of being an habitual offender,
fourth offense, MCL 769.12; MSA 28.1084, and was sentenced to prison terms of four to fourteen
years for the convictions for uttering and publishing convictions, two and one-half to four years’ for the
conviction for malicious destruction of police property, one to two years for each conviction for uttering
and publishing, one year for the conviction for failure to obey a police officer’s signal, and seven to
fifteen years for the conviction for unarmed robbery. With the exception of defendant’s sentence for the
conviction for failure to obey a police officer’s signal, the sentences were vacated and defendant was
sentenced as an habitual offender to concurrent terms of ten to fifteen and four to fifteen years.
Defendant appeals as of right. We affirm.
On Saturday, July 30, 1994, eighty-one year-old Laurna Burns, was parking her car in the
parking lot of a shopping center when she noticed an old, light-colored car pull into the parking space
next to hers. A man exited the car and approached her as she walked toward the shopping center. The
man grabbed her purse, flinging her to the ground. The man then returned to his car and drove off.
Among the items in Burns’ purse were her identification, credit cards, and a checkbook for her account
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at TCF bank. At trial, Burns identified defendant as her assailant, and other witnesses identified
defendant’s car as being the one used in the robbery.
The following Monday morning, defendant cashed a $100 check drawn on Burns’ TCF
account and payable to himself. Later that day, Detective Gerald Hopkins, a plainclothes police officer,
was at the bank to retrieve the check cashed by defendant when defendant attempted to cash another
check. Upon being notified of defendant’s presence by a bank teller, Detective Hopkins approached
defendant from behind with his gun drawn. Displaying his identification in one hand and holding his gun
in the other, Detective Hopkins told defendant that he was under arrest and escorted him from the
building. As they neared Hopkins’ unmarked patrol car, defendant pushed Hopkins away and ran to
his car, which was also parked in the lot. Hopkins struck defendant in the head several times with his
gun in an attempt to prevent him from starting the car but was unable to stop him from escaping.
Before pursuing defendant, Detective Hopkins radioed to other officers, informing them that
defendant had fled. Several marked patrol cars, with sirens activated and lights flashing, soon joined in
the pursuit. The ensuing chase through residential neighborhoods and the business district lasted
approximately fifteen minutes. After colliding with police cars and causing one officer to drive into a
tree, defendant’s car collided with a fence and came to a stop in a parking lot. Unable to proceed
further, defendant climbed out of the passenger side window and attempted to flee on foot. After
struggling with several officers, he was finally taken into custody. During a subsequent search of
defendant’s car, Detective Hopkins found Burns’ identification, credit cards, and personal checks on
the floor near the back seat.
Defendant initially contends that he was denied the effective assistance of counsel by trial
counsel’s failure to move to suppress Burns’ in-court identification of him on the ground that it was the
product of an unduly suggestive confrontation at the preliminary examination. Because defendant failed
to preserve this issue by moving for an evidentiary hearing or new trial below, review is foreclosed
unless detail of the deficiency is apparent on the record. People v Barclay, 208 Mich App 670, 672;
528 NW2d 842 (1995). Upon review of the totality of the circumstances surrounding the identification
of defendant at the preliminary examination, we conclude that there was no substantial likelihood of
misidentification, because, contrary to defendant’s assertion, Burns positively identified defendant at a
pretrial corporeal lineup. Under the circumstances, Burns’ equivocal identification of another man as the
perpetrator in a prior lineup presented an issue of credibility that was properly resolved by the jury. See
id. at 676. Accordingly, defendant was not denied the effective assistance of counsel by trial counsel’s
failure to pursue a futile motion. People v Daniel, 207 Mich App 47, 59; 523 NW2d 830 (1994).
Next, defendant contends that he was denied a fair trial by the prosecutor’s remarks during
closing argument about defendant’s credibility. Because defendant failed to preserve this issue by not
objecting at trial, review will be undertaken only if the failure to do so would result in a miscarriage of
justice or a curative instruction could not have eliminated the prejudicial effect of the improper remarks.
People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). No miscarriage of justice would
result from our failure to review in this case because the prosecutor merely commented on defendant’s
credibility and permissibly argued that he was lying about how he came into possession of the stolen
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property. People v Sharbnow, 174 Mich App 94, 100; 435 NW2d 772 (1989); People v Lodge,
157 Mich App 544, 550; 403 NW2d 591 (1987).
Defendant argues that there was insufficient evidence presented at trial from which a rational
trier of fact could find beyond a reasonable doubt that he was guilty of resisting Detective Hopkins’
attempts to arrest him. We disagree. In order to support a conviction of resisting arrest, the prosecutor
must prove that at the time of the arrest the defendant knew that the person he was resisting was an
officer. People v Julkowski, 124 Mich App 379, 383; 335 NW2d 47 (1983). The defendant’s
knowledge may be inferred from circumstantial evidence. People v Royal, 62 Mich App 756, 761;
233 NW2d 860 (1975). Viewing the evidence presented in this case in a light most favorable to the
prosecution, People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, modified 441 Mich 1201 (1992),
we find that there was sufficient evidence from which a reasonable juror could infer that defendant knew
that the plainclothes detective was a police officer at the time he resisted arrest. Unlike Royal, the
circumstances surrounding the arrest do not suggest that defendant could have reasonably mistaken
Detective Hopkins for an ordinary citizen. Defendant was arrested in the public area of a bank by an
armed officer who, by defendant’s own admission, identified himself as a police officer.
Lastly, defendant contends that he was denied the effective assistance of counsel by trial
counsel’s inadequate preparation and presentation of a defense, failure to object during the prosecutor’s
closing argument, and failure to move for a directed verdict with respect to the robbery charge. We
disagree. Trial counsel’s failure to object and move for a directed verdict did not constitute ineffective
assistance of counsel because the motions would have been futile. Daniel, supra at 59. As previously
discussed, the prosecutor properly commented on defendant’s credibility and the evidence presented at
trial. Further, upon review of the evidence, there was sufficient evidence presented to support
defendant’s robbery conviction because the jury could find that defendant was the perpetrator from his
possession of the stolen property and Burns’ identification of him as her assailant. See People v
Gordon, 60 Mich App 412, 418; 231 NW2d 409 (1976). With respect to defendant’s remaining
allegations of error, review is foreclosed because detail of the alleged deficiencies is not apparent in the
record.1 Barclay, supra at 672.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Barbara B. MacKenzie
/s/ Clifford W. Taylor
1
Defendant improperly seeks to enlarge the record on appeal by attaching affidavits to his appellate
brief. People v Brown, 119 Mich App 656, 665; 326 NW2d 834 (1982). Because our review is
limited to the lower court record, we do not consider these affidavits.
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