PEOPLE OF MI V MANQUAVIS KING MURRELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 10, 2011
Plaintiff-Appellee,
v
No. 294576
Wayne Circuit Court
LC No. 09-014513-FC
MANQUAVIS KING MURRELL,
Defendant-Appellant.
Before: TALBOT, P.J., and SAWYER and M. J. KELLY, JJ.
PER CURIAM.
Manquavis Murrell asserts the ineffective assistance of counsel for failing to seek to
suppress his identification by the victim at the preliminary examination as the basis to challenge
his bench trial convictions for armed robbery1 and possession of a firearm during the commission
of a felony (felony-firearm).2 Murrell was sentenced to consecutive sentences of 51 months to
15 years’ imprisonment for the armed robbery conviction and two years’ imprisonment for the
felony-firearm conviction. We affirm.
Murrell asserts that because he was dressed in prison garb at the preliminary examination,
the circumstances of his identification by the victim at this hearing were rendered unduly
suggestive. He contends that he was denied the effective assistance of counsel because his
attorney did not seek to suppress this identification. Murrell never raised the issue of his
preliminary examination identification in the trial court. “Where issues concerning identification
procedures were not raised at trial, they will not be reviewed by this Court unless refusal to do so
would result in manifest injustice.”3
Manifest injustice would not result from our refusal to review this unpreserved issue.
Even when a pre-trial procedure is deemed to be unduly suggestive, in-court identification may
1
2
3
MCL 750.529.
MCL 750.227b(1).
People v Whitfield, 214 Mich App 348, 351; 543 NW2d 347 (1995).
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be permitted where the prosecutor demonstrates by clear and convincing evidence that an
independent basis exists for the identification.4 While an evidentiary hearing was not conducted
in this case to determine whether an independent basis existed for the victim’s identification of
Murrell, a review of the record shows that the victim identified Murrell through a photographic
line-up before the preliminary examination was conducted. The victim testified that she had the
opportunity to observe Murrell in close physical proximity at the time of the robbery. Despite
Murrell’s use of a bandana to cover portions of his face and hair, the victim indicated that certain
physical characteristics regarding his eyes and head shape were sufficiently unique to be readily
identifiable. When the pictures in the photographic lineup were covered in a manner similar to
the use of bandanas by the perpetrator, the victim readily identified Murrell. Although Murrell
was dressed in prison garb at the preliminary examination, there is sufficient evidence to
demonstrate that the victim’s identification was not based simply on his apparel, but rather on his
stature and mannerism, as she indicated “[w]hen he walked in the room, my stomach did a back
flip. I started sweating. I knew it was him.” There is no suggestion that the victim’s general
description of the perpetrator immediately following the robbery does not coincide with
Murrell’s physical characteristics. Even if we were to determine that the preliminary
examination identification was unduly suggestive because of Murrell being dressed in prison
garb, the record sufficiently demonstrates that an independent basis existed for the in-court
identification5 and, therefore, no manifest injustice results from our refusing to grant relief on
this issue.
Murrell next contends that he was denied the effective assistance of counsel as his
attorney did not attempt to suppress the unduly suggestive in-court identification. To establish
that counsel was ineffective, Murrell “must show that counsel's performance fell below an
objective standard of reasonableness, and that the representation so prejudiced the defendant as
to deprive him of a fair trial.”6 In order to demonstrate prejudice, Murrell must show that a
reasonable probability exists that, but for his counsel’s deficient performance, the result of the
proceeding would have been different.7 Because Murrell’s claim of ineffective assistance of
counsel is also not preserved for this Court’s review, his claim is considered based only on the
existing record.8
The victim testified that she had an opportunity to observe Murrell in close physical
proximity during the robbery. She accurately described him after the robbery and readily
identified him in a photographic lineup before the preliminary examination. As such, Murrell
has failed to demonstrate a reasonable probability that the outcome of the trial would have been
4
People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998).
5
People v Gray, 457 Mich 107, 115-117; 577 NW2d 92 (1998).
6
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
7
Id. at 314, quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674
(1984).
8
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
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different had counsel moved to suppress the preliminary examination identification. And, based
on the victim’s opportunity to observe the perpetrator and her consistent identification of
Murrell, we are not convinced that any motion by defense counsel seeking to suppress the incourt identification would have been successful. Because counsel is not deemed to be ineffective
for failing to make motions or raise objections that would be futile9, Murrell’s claim pertaining to
the effectiveness of counsel cannot be sustained.
Affirmed.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Michael J. Kelly
9
People v Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002).
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