PEOPLE OF MI V EDWIN LEROY SHEPPARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2003
Plaintiff-Appellee,
v
No. 241766
Calhoun Circuit Court
LC No. 01-004225-FH
EDWIN LEROY SHEPPARD,
Defendant-Appellant.
Before: O’Connell, P.J. and Jansen and Wilder, JJ.
PER CURIAM.
A jury convicted defendant of unarmed robbery, MCL 750.530, and the trial court
sentenced defendant as a fourth habitual offender, MCL 769.12, to 114 to 240 months’
imprisonment. Defendant appeals as of right. We affirm.
Defendant was convicted for knocking down a senior citizen as she was walking into a
grocery store and then running away with her purse. Before being knocked down, the victim saw
a man, whom she identified as defendant, standing near the door of the store. While the victim
never saw the person who snatched her purse, defendant was the closest person to her.
Unlike the victim, three other people actually saw the robber take the purse from the
victim. Immediately, one began chasing after the robber on foot. Two other people, who had
just been parking their vehicle, drove around to block off the robber’s escape route as he ran
around the store. The man who was driving the vehicle jumped out and joined the chase, while
the woman in the vehicle got into the driver’s seat. The two pursuers chased the robber to a wire
mesh fence. Although the robber escaped by making it over the fence, he left the purse behind.
After the robber leaped over the fence, the woman in the vehicle that had cut off the
robber’s original escape route drove next to the robber for a few seconds, berating him for what
he had just done. The robber ran off into a residential neighborhood. Police checked the
neighborhood, but were not immediately able to locate the robber. Approximately two hours
after the robbery, police responded to a 911 call indicating that there was a man knocking on
doors in the neighborhood and found defendant. Defendant matched the various descriptions of
the robber, and was promptly arrested.
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I.
Defendant first argues on appeal that he is entitled to a new trial because the trial court
did not strictly adhere to MCR 2.511(F) during the jury selection process, and that this failure
violated his due process rights. We disagree. The parties entered more than one peremptory
challenge to jurors at a time, and did not allow for voir dire of each juror to take place before a
new juror was seated. While the trial court should not have used the particular jury selection
method used during this trial, for the reasons set forth below we cannot say that the method
constitutes error requiring reversal of defendant’s conviction.
Defendant failed to object to the method of jury selection at trial and affirmatively
expressed his satisfaction with the jury selected (“Defense is satisfied with jury”) and, thus, has
waived this issue for purposes of appeal. People v Carter, 462 Mich 206, 214-216; 612 NW2d
144 (2000); People v Russell, 434 Mich 922; 456 NW2d 83 (1990) (Russell II), reviewing 182
Mich App 314 (1990) (Russell I) (for the reasons stated in Judge Sawyer's dissenting opinion);
People v Lawless, 136 Mich App 628, 635-636; 357 NW2d 724 (1984); see also People v
Schmitz, 231 Mich App 521, 526; 586 NW2d 766 (1998). Use of the “struck jury” method is
impermissible in Michigan, and no finding of prejudice is necessary to establish that a violation
of the court rule is an error requiring reversal. See People v Miller, 411 Mich 321, 326; 307
NW2d 355 (1981) (holding that the struck juror method was impermissible under GCR 1963,
511.6, the predecessor of MCR 2.511(F)); People v Colon, 233 Mich App 295, 298-303; 592
NW2d 692 (1998). However, when no objection to the method of jury selection is made at any
point during the trial proceedings, reversal is not required. Lawless, supra at 636; see also
Russell I, supra at 316-317. In addition, defendant shows no reason why this method of jury
selection, although irregular, rose to the level of a due process violation requiring reversal. See,
generally, People v Green, 241 Mich App 40, 43-46; 613 NW2d 744 (2000) (holding that
changes to court rules allow for any methods of jury selection that are not intrinsically unfair).
Defendant failed to object to the method of jury selection and affirmatively expressed
satisfaction with the jury that was selected, thus, extinguishing any error. Carter, supra at 214216; Russell II, supra; Russell I, supra at 316-317.
II.
Defendant next argues that the prosecution committed prosecutorial misconduct,
depriving him of his due process rights, by impermissibly vouching for two of its witnesses. We
disagree.
Defendant failed to object to the prosecutor’s alleged misconduct at trial and, thus, has
failed to preserve this issue for appeal. People v Schutte, 240 Mich App 713, 720; 613 NW2d
370 (2000), citing People v Carines, 460 Mich 750, 761-762; 597 NW2d 130 (1999). We review
unpreserved claims of prosecutorial misconduct for plain error affecting defendant’s substantial
rights. Id. Reversal is warranted only when a plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity or public reputation of judicial
proceedings. Schutte, supra at 720. “No error requiring reversal will be found if the prejudicial
effect of the prosecutor's comments could have been cured by a timely instruction." Id. at 721.
A prosecutor may not vouch for the credibility of a witness to the effect that he has some
special knowledge that the witness is testifying truthfully. People v Bahoda, 448 Mich 261, 276;
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531 NW2d 659 (1995); People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). The
prosecution asked many of the witnesses if they were certain in their identifications of defendant
as the robber, and introduced testimony regarding many of the witnesses’, earlier, out-of-court
identifications of defendant. The certainty of two of the witnesses in their identification of
defendant was noted during the prosecution’s closing argument.
Defendant contends on appeal that the introduction of the prior identifications, and
references to the identifications during closing arguments, constituted improper vouching
because MRE 403 precluded introduction of the identifications. Defendant fails to cite any cases
supporting this interpretation of the rule. The appellant may not merely announce his position
and leave it to this Court to discover and rationalize the basis for his claims, People v Leonard,
224 Mich App 569, 558; 569 NW2d 663 (1997), nor may he give issues cursory treatment with
little or no citation of supporting authority, People v Kelly, 231 Mich App 627, 641; 588 NW2d
480 (1998). In any event, it was not improper vouching for the prosecution to argue the
credibility of witnesses based on facts in the record. Schutte, supra at 721; Howard, supra at
548. Moreover, any prejudice resulting from the prosecution’s questions and statements could
have been cured by a timely instruction had one been requested by defendant. Schutte, supra at
721. Therefore, the alleged instances of prosecutorial misconduct do not amount to plain error
requiring reversal.
III.
Defendant also argues that he was subjected to unduly suggestive lineups, and that this
deprived him of his due process rights. We disagree. "In order to sustain a due process
challenge [based on an identification procedure], a defendant must show that the pretrial
identification procedure was so suggestive in light of the totality of the circumstances that it led
to a substantial likelihood of misidentification." People v Kurylczyk, 443 Mich 289, 300-301;
505 NW2d 528 (1993).
At one of the lineups, a witness was told in passing that police had caught the robber.
Defendant bears the burden of proving that the lineup was impermissibly suggestive, and the fact
that a witness is told that the perpetrator is in the lineup does not, by itself, render the lineup
unduly suggestive. People v McElhaney, 215 Mich App 269, 286-288; 545 NW2d 18 (1996). In
any event, the procedure was not so suggestive that it led to a substantial likelihood of
misidentification. See Kurylczcyk, supra at 300-301. Thus, as defendant’s claim relates to this
witness, his claim must fail.
Although another witness saw defendant in the courtroom shortly before attending a
lineup, his identification testimony was admissible because there was an independent basis for it.
“The fairness of an identification procedure is evaluated in light of the total circumstances to
determine whether the procedure was so impermissibly suggestive that it led to a substantial
likelihood of misidentification.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700
(2002), citing Kurylczyk, supra at 306, 311-312. If the pretrial identification was tainted by
creating a substantial likelihood of misidentification, there must be an independent basis for the
identification before identification testimony of the witness is admitted at trial. People v Gray,
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457 Mich 107, 114-115; 577 NW2d 92 (1998).1 Appropriate factors for determining whether
there was an independent basis for identification include: (1) the witness’s prior knowledge of
the defendant; (2) the witness’s opportunity to observe the criminal during the crime; (3) the
length of time between the crime and the disputed identification; (4) the witness’s level of
certainty at the prior identification; (5) discrepancies between the pretrial identification
description and the defendant’s actual appearance; (6) any prior proper identification of the
defendant or failure to identify the defendant; (7) any prior identification of another as the
culprit; (8) the mental state of the witness at the time of the crime; and (9) any special features of
the defendant. Gray, supra at 116.
Whether there was an independent basis for the identification is a factual inquiry, using a
number of factors to assess the totality of the circumstances with regard to the validity of the
identification.2 Id. at 115. The witness saw defendant’s face as the witness was coming out of
the store, watched defendant grab complainant’s purse, and also got a good look at defendant’s
face after defendant stopped to rest on the other side of the fence he jumped. The witness’
description of defendant right after the robbery matched defendant’s description when he was
arrested a couple of hours after the robbery. The witness was certain that defendant was the
robber. Based on the above factors, there was an independent basis for the witness’
identification of defendant as the robber, and the trial court committed no error in admitting this
evidence.
IV.
Finally, defendant argues that he was denied effective assistance of counsel when his trial
counsel failed to object to the testimony about the out-of-court identifications and to the method
of jury selection, and failed to move for a Wade3 hearing on the issue of the unduly suggestive
lineups. We disagree.
Because there has been no evidentiary hearing regarding ineffective assistance of
counsel, our review is limited to what is apparent on the record. People v Rodrigues, 251 Mich
App 10, 38; 650 NW2d 96 (2002). "Whether a person has been denied effective assistance of
counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). "A judge must first find the facts, and then must decide whether
those facts constitute a violation of the defendant's constitutional right to effective assistance of
counsel." Id. The trial court's factual findings are reviewed for clear error, while its
constitutional determinations are reviewed de novo. Id.
1
Arguments were held outside the presence of the jury, and the trial was not satisfied that there
were grounds to suppress the witness’s testimony.
2
The determination whether an identification has an independent basis is factual, and the trial
court findings are reviewed for clear error. Gray, supra at 115. Clear error exists when the
reviewing court is left with a definite and firm conviction that a mistake was made. Hornsby,
supra at 466.
3
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
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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; (2) that there is a reasonable probability that, but for counsel's error, the
result of the proceedings would have been different; and (3) that the resultant proceedings were
fundamentally unfair or unreliable. Bell v Cone, 535 US 685, 695; 122 S Ct 1843, 152 L Ed 2d
914 (2002); People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000); People v Rodgers, 248
Mich App 702, 714; 645 NW2d 294 (2001). The deficiency must be prejudicial to the
defendant. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994).
As has already been discussed, the lineups to which defendant was subjected were not
unduly suggestive, and failing to object to admissible evidence is not ineffective assistance of
counsel. People v Snider, 239 Mich App 393, 424; 608 NW2d 502 (2000). Also, it appears,
based on the record, that defense counsel as a matter of trial strategy chose not to request an
evidentiary hearing regarding the police lineups, but instead chose to question plaintiff’s
witnesses about their earlier identifications in an attempt to show that defendant was
misidentified as the robber. See Rodriguez, supra at 38. “This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy.” People v Rockey, 237 Mich
App 74, 76-77; 601 NW2d 887 (1999).
Further, it would have been futile for defendant’s trial counsel to have requested a Wade4
hearing. Defense counsel brought a pretrial motion to have a witness’ testimony excluded after
the parties found out that the witness unwittingly wandered into the courtroom. The trial court
was well aware of the evidentiary issues concerned, and still denied the motion. Therefore, trial
counsel’s failure to request a separate evidentiary hearing did not rise to the level of ineffective
assistance of counsel because the result of the proceedings would have been the same. See Bell,
supra at 695.
Additionally, defendant has failed to present us with facts on the record supporting the
contention that trial counsel’s acquiescence to the method of jury selection used at trial was
anything other than trial strategy. See Rockey, supra at 76-77. For the above reasons, defendant
has not demonstrated that his trial counsel’s performance fell below an objective standard of
conduct indicative of ineffective assistance of counsel. Based on the record, upon a de novo
review of this constitutional issue, defendant has not established the deficient performance and
prejudice required to succeed on a claim of ineffective assistance of counsel. LeBlanc, supra at
579.
Affirmed.
/s/ Peter D. O’Connell
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
4
Wade, supra.
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