PEOPLE OF MI V DEMETRIUS L MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 16, 2001
Plaintiff-Appellee,
v
No. 220536
Wayne Circuit Court
LC No. 98-014052
DEMETRIUS L. MOORE,
Defendant-Appellant.
Before: Murphy, P.J., and Hood and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for armed robbery, MCL 750.529;
MSA 28.797, assault with a dangerous weapon, MCL 750.82; MSA 28.277, and possession of a
firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was
sentenced, as a second habitual offender, MCL 769.10; MSA 28.1082, to twenty to forty years’
imprisonment for the armed robbery conviction, two to four years’ imprisonment for the
felonious assault conviction and two years’ imprisonment for the felony-firearm conviction. We
affirm.
Defendant first argues that there was insufficient identification evidence to support his
conviction. Defendant contends that complainant was uncertain when he selected defendant out
of a police lineup and therefore the identification evidence was insufficient to sustain defendant’s
conviction. We disagree.
Due process requires that a criminal conviction be based on evidence sufficient to justify
a rational trier of fact in finding defendant guilty beyond a reasonable doubt. People v Johnson,
460 Mich 720, 723; 597 NW2d 73 (1999). This Court examines the sufficiency of evidence in
the light most favorable to the prosecution. Id. at 723.
There is no legal requirement that a victim unhesitatingly identify a culprit for the line-up
results to be valid. See People v Sawyer, 215 Mich App 183, 194; 545 NW2d 6 (1996).
Moreover, “[w]here there are other indicia of reliability, an initial inability to identify the
defendant or a tentative false identification of another person will not invalidate a witness'
identification of the defendant.” People v Kurylczyk, 443 Mich 289, 309; 505 NW2d 528 (1993).
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After a careful review of the record, we are convinced that there was sufficient evidence
to support defendant’s conviction. On the night in question, complainant and his sister had a
clear view of defendant’s facial features and his vehicle. The descriptions complainant and his
sister provided to the police led to defendant’s later apprehension. Moreover, the police
recovered complainant’s property and a gun, which matched the description of the gun used
against complainant, inside defendant’s vehicle. The next day, complainant and his sister viewed
a police lineup of possible suspects. Although complainant initially hesitated, he did, in fact,
positively identify defendant. Complainant’s sister, also an eye witness, instantly identified
defendant as the culprit. Viewing this evidence in the light most favorable to the prosecution,
there was sufficient evidence for the jury to hold, beyond a reasonable doubt, that defendant was
the perpetrator of the crimes in question.
Defendant also argues that he was deprived of his right to the effective assistance of
counsel when his attorney failed to poll the jury. Because defendant did not request a Ginther1
hearing, this Court’s review is limited to mistakes apparent on the record. People v Randolph,
242 Mich App 417, 422; 619 NW2d 168 (2000). The burden is on defendant to show that
counsel made serious errors that prejudiced the defense and deprived defendant of a fair trial.
People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). There is a strong presumption
that counsel’s conduct was reasonable. Id.
The record does not reveal defense counsel’s reasoning for declining a jury poll.
Additionally, even though defense counsel did not insist on a jury poll, the jurors could have
been polled at the court’s discretion. MCR 6.420(C). There is no indication in the record that
the court questioned the reliability of the foreperson’s stated verdict or the other jurors’ response
to the stated verdict. Moreover, defendant has failed to demonstrate that his attorney’s failure to
poll the jurors was unreasonable, unprofessional, or that the outcome of the trial would have
differed in any way. As a result, defendant has not overcome the presumption of his counsel’s
effectiveness.
Finally, defendant asserts that his armed robbery sentence violates the principle of
proportionality. We disagree.
Defendant’s sentence for armed robbery was enhanced, as permitted for felonies
committed by second habitual offenders, under MCL 769.10; MSA 28.1082, which states:
(1) If a person has been convicted of a felony or an attempt to commit a
felony . . . and that person commits a subsequent felony within this state, the
person shall be punished upon conviction of the subsequent felony and sentencing
under section 13 of this chapter as follows:
*
1
*
*
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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(b) If the subsequent felony is punishable upon a first conviction by
imprisonment for life, the court . . . may place the person on probation or sentence
the person to imprisonment for life or for a lesser term.
The principle of proportionality provides that trial court’s sentences must “be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). Defendant argues that this
principle is violated because his minimum sentence is four times greater than the five year
minimum the Michigan Supreme Court’s sentencing guidelines prescribe for armed robbery.
Our Supreme Court’s sentencing guidelines, however, do not apply to sentences imposed on
habitual offenders. People v Cervantes, 448 Mich 620, 630; 532 NW2d 831 (1995).
This Court reviews an habitual offender’s sentence for an abuse of discretion. People v
Reynolds, 240 Mich App 250, 252; 611 NW2d 316 (2000) (citing People v Hansford (After
Remand), 454 Mich 320, 323-324; 562 NW2d 460 (1997)). The Supreme Court has rejected the
application of the principle of proportionality to the review of habitual offender sentences.
Hansford, supra, 454 Mich at 323-327. Rather, “[a] trial court does not abuse its discretion in
sentencing an habitual offender within the statutory limits established by the Legislature when
the offender’s underlying felony, in the context of previous felonies, evinces the defendant’s
inability to conform his conduct to the laws of society.” Reynolds, supra, 240 Mich App at 252
(citing Hansford, supra, 454 Mich at 326). In reaching this determination, a court may consider
the seriousness of the underlying crime, defendant’s criminal history, and defendant’s ability or
inability to reform. Hansford, supra, 454 Mich at 326.
The record reflects that defendant approached complainant as he was leaving a store.
Complainant testified that defendant pointed a black semiautomatic gun at him and demanded his
money and jacket. When defendant returned to his vehicle, he fired several shots in the general
direction of complainant and the car that complainant’s sister was driving.
The trial court directly addressed the violent nature of defendant’s actions when it
sentenced defendant. The court emphasized that defendant’s actions had great potential to cause
serious harm or death to complainant, his sister, or any unfortunate passerby. The court also
referred to defendant’s prior criminal history and the fact that defendant was on parole for
another armed robbery at the time of the instant offense. Finally, the court stated that “whatever
time Mr. Moore spent with the Department of Corrections did not result in any positive
outcome.” These facts support a finding that defendant has not conformed his conduct to
society’s laws. Thus, defendant’s sentence does not constitute an abuse of discretion.
Affirmed.
/s/ William B. Murphy
/s/ Harold Hood
/s/ Jessica R. Cooper
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