PEOPLE OF MI V JUWAUN LONG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2004
Plaintiff-Appellee,
v
No. 242924
Wayne Circuit Court
LC No. 01-5450-01
JUWAUN LONG,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of three counts of armed
robbery, MCL 750.529, and one count of possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant to concurrent terms of 27 to 40
years’ imprisonment for the armed robbery convictions, to run consecutively to 2 years’
imprisonment for the felony-firearm conviction. Defendant moved for a new trial on the basis of
ineffective assistance of counsel. Following a Ginther1 hearing, the trial court ruled that
defendant had not demonstrated that he was denied effective assistance of counsel, and denied
his motion for a new trial. We affirm.
The instant case arises out of the armed robberies of Dennis Whitehead, Randy
Whitehead, and Demirlo Brown. Dennis Whitehead testified that on April 16, 2001, between
9:00 p.m. and 10:00 p.m., he was walking with his brother, Randy Whitehead, and his cousin,
Demirlo Brown, on Seven Mile Road in Detroit, heading to his grandmother’s house. As
Whitehead turned the corner onto his grandmother’s street, he saw that his brother and cousin
had their hands up, and felt a gun, which he later saw to be a black pistol, in his back. He was
pushed toward the side of a building, where the perpetrator searched his pockets. Whitehead
identified defendant as the perpetrator, and explained that he saw defendant’s face when they
initially passed each other at the corner; defendant then circled around and placed the gun in his
back. Defendant was wearing a black hooded sweatshirt, black pants, and dark shoes; he kept
the hood up during the robbery. Whitehead identified the other two perpetrators as a “little kind
of chubby guy” and Terry Douglas. The “chubby” guy had a shotgun and Douglas had a black
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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pistol. Whitehead, his brother, and his cousin were forced into an alley; Whitehead testified that
a “big blue light” hanging from a building adjacent to the alley allowed him to “really see[]”
defendant’s face. Douglas ordered Whitehead to take off his shoes, and the “chubby” man
picked them up and placed them in a bag. The three men also took four dollars, his bus card, and
his wallet.
Whitehead testified that on April 27, 2001, he picked defendant out of a live lineup
within “a couple of seconds.” Whitehead testified that it was easy to identify defendant at the
lineup because he had seen defendant’s face during the robbery, none of the other men in the
lineup looked similar to defendant, and he had no doubt that defendant was the person who
robbed him.
Randy Whitehead testified to essentially the same account of events as his brother. He
testified that as they were turning the corner onto his grandmother’s street, someone yelled
“[y]a’ll niggers about to get robbed.” Randy Whitehead testified that a “husky fellow” that was
approximately 6’1” or 6’2” had a shotgun, frisked him, and took five dollars from him. The
other two men were frisking Randy Whitehead’s brother and cousin. Randy Whitehead
identified defendant as one of the men who was frisking his brother, and testified that defendant
had a handgun. Whitehead stated that he observed defendant “for a good minute” and that there
was a “very bright light” in the alley which enabled him to see defendant’s face.
Randy Whitehead testified that he attended a photographic lineup a few days after the
robbery; however, he did not recall seeing defendant’s picture. Randy Whitehead testified that
he did not identify defendant at the live lineup; he told the police officer that defendant looked
very familiar, but did not identify defendant because the police said he had to be 100 percent
sure, and he was only 90 percent sure of defendant’s identity. Randy Whitehead’s statement
described two of the robbers as slim, dark complected, with “nappy afros”; the other robber was
a heavy set, dark complected male that was 6’2” or 6’3.” Defendant was wearing dark clothing,
including a dark hooded sweatshirt.
Brown testified to essentially the same account of events as Dennis and Randy
Whitehead. Brown identified defendant as one of the robbers, and testified that defendant
pointed a gun at Dennis Whitehead’s back. Brown testified that the robbery lasted for
approximately 15 minutes or 20 minutes, and that he got to look at defendant for 15 minutes.
Brown identified defendant at the live lineup. Brown testified that he attended a photographic
lineup, but was unable to identify any of the robbers.
William Jackson, the investigating police officer on the case, testified that he was aware
that defendant had a twin brother, and that the twin brother was not in the live lineup. Jackson
had never seen defendant’s brother, and did not know if he was an identical twin.
At the March 21, 2003 Ginther hearing, Wright Blake, trial defense counsel, testified that
he represented defendant in a homicide trial that concluded six weeks before the instant trial
began, as well as a separate armed robbery case. Blake testified that he discussed a potential
alibi defense with defendant and defendant’s mother. “[Defendant’s mother] claimed that
[defendant] was not responsible but there weren’t any particulars or specifics such as she recalled
on that particular date he was such and such a place.” Blake discussed the possibility of an alibi
defense with defendant, but defendant could not recall where he was at the time of the incident;
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he simply maintained his innocence. Blake did not recall receiving names of alibi witnesses
from defendant or defendant’s mother; therefore, no notice of alibi was filed. During trial, the
prosecutor moved to amend the witness list to include a deputy who heard defendant say “you
broke ass niggers, you didn’t [have] any money anyway” to the three complainants. The trial
court would not allow the deputy to testify, but indicated that if defendant testified, the
prosecutor could inquire about the statement on cross-examination, and that the deputy could
become a rebuttal witness. Blake intended to have defendant testify to explain his whereabouts
on the night of the incident, but decided against it in order to avoid the comment being brought
out on cross-examination.
Blake testified that there was also a discussion regarding having co-defendant Terry
Douglas testify, but that he “was a horrible witness,” and “didn’t want to risk putting him on the
stand.” Blake did not recall ever being given the names of Christopher Peave, Antonio Gravely,
or Eugene Wyatt for use as alibi witnesses.
Defendant’s mother, Wanda Long, testified that while Blake was representing defendant
in the instant case as well as the murder case and another armed robbery case, she called him “all
the time.” According to Long, she told Blake about three alibi witnesses for the instant case,
however Blake indicated that he “did not want to get into that until the murder case was over.”
Long testified that defendant told her the nicknames of the alibi witnesses, and that she knew
their legal names, but never communicated them to Blake because he did not return her phone
calls. According to Long, she attempted to contact Blake more than 10 times between the end of
the murder trial in January 2002 and the trial in the instant case in June 2002. Long testified that
after the defense rested in the instant case, she asked Blake “what about the witnesses for my
son”?. According to Long, Blake told her that defendant did not remember where he was at the
time of the incident; Long believed this to be a lie because defendant “had been bugging [her] all
the time about get those friends of his and give [Blake] the names.”
Defendant testified that the same day he was found not guilty in the murder trial, Blake
asked him “who [he] had for witnesses” for the instant case. Defendant testified that Blake
wrote down the names of the three alibi witnesses (Antonio Bradley, Eugene Wyatt, and
Christopher Peave), and that he told Blake that he could get the phone numbers and addresses of
the witnesses from his mother. Defendant testified that during trial, he began to think that things
were not “straight” because Blake did not subpoena any of the alibi witnesses. According to
defendant, Blake told him that “it was straight,” that “everything was cool,” and not to “worry
about it.” Defendant testified that he was “not really” upset that Blake did not present the alibi
witnesses and that he does not hold grudges. Defendant admitted that he did not mention
Blake’s failure to present the alibi witnesses at sentencing, and stated that he told the trial court
that he “had nothing to do with it at all” at sentencing.
Blake testified that he was aware that defendant had a twin brother, and recalled asking
Officer Jackson whether he was aware that defendant had a twin. Blake asked Jackson about
defendant’s twin in an attempt to rebut the complainants’ identification of defendant. Blake did
not attempt to introduce the twin brother at trial, because he did not believe they looked
sufficiently similar for the jury to conclude that the complainants mistakenly identified
defendant: defendant had longer “nappy” hair worn in a “large afro,” whereas his brother had a
shorter hairstyle. Additionally, defendant’s brother is larger and heavier than defendant. Blake
believed it was more advantageous to not introduce defendant’s twin brother, and to let the jury
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draw their own conclusions. Defendant’s mother confirmed that defendant and his brother were
fraternal twins.
Blake testified concerning his representation of defendant in the Won Young Park armed
robbery case. Park identified defendant as one of the men who robbed him; however, it was later
determined that defendant was incarcerated at the time of the Park robbery, and therefore could
not have been the perpetrator. The Park robbery case was dismissed after defendant was found
guilty in the instant case. Blake did not attempt to introduce evidence that defendant had been
improperly identified in the Park robbery, because the Park robbery charges were still pending at
the time of the instant trial, and he “didn’t feel comfortable with trying to get into that realm
during the trial.” Blake did not think it would be beneficial to defendant’s case to inform the
jury that he had been identified as a suspect in a different armed robbery.
At trial, Blake questioned Randy Whitehead and Demirlo Brown about whether they
attended a photographic lineup; the witnesses testified that they attended a photographic lineup,
but were unable to identify any of the robbers. At the Ginther hearing, Blake admitted that when
he asked the complainants about the photographic lineup, he was unaware of whether such a
lineup took place. Blake did not know, and never attempted to find out, whether the
complainants had been shown a picture of defendant during the photographic lineup. Blake
agreed that evidence that the complainants were unable to identify defendant at a photographic
lineup would have been helpful to the defense.
Blake testified that he did not move for a Wade2 hearing to determine the fairness of the
live lineup because he did not feel it was appropriate. The trial court commented that all six of
the men were of the same stature and height, and that the skin tone of the men varied from
medium brown to dark brown. Blake testified that two of the six men were dark complected, one
of which was defendant. Blake could not tell from the picture of the lineup whether two of the
six men had their hair in braids. Blake used the photograph of the live lineup during crossexamination of the complainants to demonstrate the weight that should be given to their
identification of defendant.
Defendant argues that he was denied the effective assistance of counsel. The right to
counsel guaranteed by the United States and Michigan Constitutions is the right to effective
assistance of counsel. US Const, Am VI and Const 1963, art 1, § 20; United States v Cronic, 466
US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Pubrat, 451 Mich 589, 594; 548
NW2d 595 (1996). “To establish ineffective assistance of counsel, defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms. Defendant must further demonstrate a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different, and the attendant
proceedings were fundamentally unfair or unreliable.” People v Rodgers, 248 Mich App 702,
714; 645 NW2d 294 (2001) (citations omitted). “Effective assistance of counsel is presumed,
and the defendant bears a heavy burden of proving otherwise.” Id.
2
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
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Defendant first argues that his trial counsel was ineffective because he failed to properly
prepare an alibi defense. This Court has held that “a defendant is entitled to have his counsel
prepare, investigate, and present all substantial defenses.” People v Kelly, 186 Mich App 524,
526; 465 NW2d 569 (1990). “At a post-trial evidentiary hearing, however, a defendant must
show that he made a good-faith effort to avail himself of this right and that the defense of which
he was deprived was substantial.” Id. “A substantial defense is one that might have made a
difference in the outcome of the trial.” Id. In the instant case, “a substantial alibi defense would
be one in which defendant’s proposed alibi witnesses verified his version.” Id. at 526-527.
At the Ginther hearing, defendant claimed that he gave defense counsel the names of
three alibi witnesses following his acquittal in the murder trial, and that defense counsel wrote
down the names. However, defendant’s mother testified that defendant gave her the names of
the alibi witnesses and told her to give the names to defense counsel. According to defendant’s
mother, she was never able to give defense counsel the names of the witnesses because he was
first occupied with the murder trial, and thereafter failed to return her calls. Defense counsel
testified that neither defendant nor his mother ever provided him with a list of alibi witnesses,
and that defendant could not recall his whereabouts on the night of the incident. The trial court
determined:
With respect to the alibi witnesses, during the evidentiary hearing conducted by
this Court, the defendant’s mother testified that she attempted at least twice to
give counsel the names of three alibi witnesses and the counsel was either always
unavailable, too busy or did not want to be distracted from defendant’s murder
trial. Counsel testified that he did not pursue alibi evidence because defendant
had not given him any and defendant [] himself could not recall his whereabouts
on the night in question. In light of the totality of evidence, this Court is not
convinced of the veracity of testimony given by defendant’s mother.
The trial court’s ruling is supported by defense counsel’s testimony that neither defendant nor his
mother provided him with the names of alibi witnesses. Based upon the testimony from the
Ginther hearing, we are not persuaded that defendant made a good-faith effort to avail himself of
an alibi defense or that the defense was in fact substantial. People v Hubbard, 156 Mich App
712, 715; 402 NW2d 79 (1986).
Defendant next argues that his trial counsel was ineffective because he failed to conduct a
Wade hearing to determine whether the live lineup was fair. However, defense counsel testified
that he did not feel a Wade hearing was appropriate in the instant case, and wanted the
photographs of the live lineup to be admitted as evidence so that the jury could assess the weight
to give the complainants’ identification of defendant. The trial court determined:
Counsel indicated he did not consider a Wade hearing to have the line up pictures
ruled inadmissible because he wanted the pictures to be seen by the jury. It was
his intent and strategy to point out that the other people in the line up bore hardly
any resemblance at all to defendant. That including the age, height and skin
color, this was a dissimilar line up. Trial strategy is without the boundary of this
Court’s review. Hence, defendant has failed to meet his burden for an ineffective
assistance claim on this basis.
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Here, the record does not reflect reasons for finding the live lineup improper, which would be the
only basis for requesting a Wade hearing. People v Laidlaw, 169 Mich App 84, 96; 425 NW2d
738 (1988). We are not persuaded that defendant met his burden of showing that defense
counsel failed to perform an essential duty, or that the failure prejudiced defendant. Id. Further,
defense counsel closely questioned the three complainants on cross-examination concerning their
identification of defendant at the live lineup. We find no ineffective assistance of counsel in
defense counsel’s failure to move for a Wade hearing.
Defendant next argues that his trial counsel was ineffective because he failed to introduce
sufficient evidence that defendant had a twin brother. However, defense counsel testified that he
had seen defendant’s fraternal twin before trial, and felt that they were too dissimilar to present
defendant’s twin to support the argument that the complainants were mistaken as to the robbers’
identity. The trial court determined:
Counsel further testified that with regard to the defendant’s twin brother, he made
a strategic decision not to present further witnesses. He testified that he believed
the two were significantly different in appearance. The mother confirmed that
they are fraternal. On cross-examination, counsel testified that he thought it was
better to let the jury reach their own conclusion as to whether defendant could
have been mistaken for the twin, rather than to show them the twin for
comparison. This Court finds that sound trial strategy, its success or failure being
irrelevant, will not be second-guessed.
Decisions regarding whether to call or question witnesses are presumed to be matters of trial
strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). The record does not
demonstrate that defense counsel’s performance was unreasonable, and his judgment in not
calling defendant’s twin to testify will not be substituted with the judgment of this Court. Id. at
77.
Defendant next argues that his trial counsel was ineffective because he failed to introduce
evidence that defendant was mistakenly identified in the Park robbery. However, defense
counsel testified that the armed robbery charges in the Park case were still pending against
defendant during the instant case, and that in any event he did not want to introduce evidence
that defendant was a suspect in a different armed robbery case. The trial court determined:
Counsel addressed the issue of defendant having been misidentified in another
armed robbery in the same area. That case was not dismissed until after the
instant case returned the guilty verdict. Prior to that, it was not confirmed that
defendant’s case would be dismissed as counsel was still negotiating with the
prosecutor and there may have been some inaccuracies in the documentation he
had received on the matter. Counsel did not want to present to the jury another
armed robbery where defendant was the suspect. Once again, counsel acted
within the wide range of constitutionally competent representation.
Decisions regarding what evidence to present is presumed to be a matter of trial strategy, and we
will not substitute our judgment for that of defense counsel regarding such matters. Rockey,
supra at 76. The record does not demonstrate that defense counsel’s performance was
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unreasonable, and his judgment in not presenting evidence that defendant was misidentified in a
different armed robbery case will not be substituted with the judgment of this Court. Id. at 77.
Defendant next argues that trial counsel was ineffective for failing to properly investigate
whether two of the complainants were shown a picture of defendant in a photographic lineup and
failed to identify defendant. Defense counsel admitted that he was unaware that a photographic
lineup had been conducted, and that when he questioned the complainants about a photographic
lineup, he was merely “fishing” for answers to discredit their in-court identification of defendant.
Officer Jackson testified that after searching the photograph database, the only photograph of
defendant he discovered was taken on April 27, 2001 for the investigation in the instant case.
Jackson’s testimony indicates that defendant’s picture was not in the photographic lineup shown
to the complainants, and thus explains their inability to identify defendant as one of the robbers.
The trial court determined:
Counsel was not aware of mugshots having been used until he asked the question
in open court without knowing what the answer would be. Further, he testified
that nothing in the discovery materials notified him that the complainants had
viewed mugshots prior to the line up. The officer in charge testified that the only
mugshot of defendant that he was able to obtain after investigating the same is the
one that was taken April 25, 2002, after defendant was arraigned on the instant
case. Therefore, this Court finds that had counsel investigated mugshots, he
would [not] have found one taken subsequent to the time when the complainants
were alleged to have viewed them. In light of the positive live line up and
courtroom identifications by all three complainants, this line of defense would
have had marginal impact at best. Hence, defendant has not demonstrated that
counsel’s failure to investigate was such that it significantly prejudiced
defendant’s position.
“When making a claim of defense counsel’s unpreparedness, a defendant is required to show
prejudice resulting from this alleged lack of preparation.” People v Caballero, 184 Mich App
636, 640; 459 NW2d 80 (1990). Defendant failed to present evidence that an investigation
would have revealed any information to benefit defendant, and Officer Jackson’s efforts revealed
that a picture of defendant was not likely shown to the complainants during the photographic
lineup. After reviewing the trial transcript and the record from the Ginther hearing, we conclude
that defendant has not met his burden of overcoming the presumption that his trial counsel
provided effective assistance. Id. at 642.
Finally, defendant contends that OV 13, concerning continuing pattern of criminal
behavior, was incorrectly scored at twenty-five points. MCL 777.43. A score of twenty-five
points requires a determination that “[t]he offense was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person.” MCL 777.43(1)(b). MCL 777.43(2)(a)
provides that “[f]or determining the appropriate points under this variable, all crimes within a 5year period, including the sentencing offense, shall be counted regardless of whether the offense
resulted in a conviction.”
Contrary to defendant’s assertion that a continuing pattern of criminal behavior is not
established by concurrently robbing three people, this Court has held that OV 13 was
appropriately scored at twenty-five points where the defendant was convicted of four concurrent
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felonies. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). Further,
defendant’s criminal history indicates that he had been charged with three additional armed
robberies, as well as assault and homicide within a five year period. While defendant argues that
he had not been convicted of a number of those offenses, MCL 777.43(2)(a) clearly indicates
that such offenses may be scored “regardless of whether the offense resulted in a conviction.”
We conclude that the trial court did not abuse its discretion in scoring twenty-five points for OV
13.
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Hilda R. Gage
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