People v. Benn
Decision Date | 19 August 2021 |
Docket Number | 354634 |
Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY DERAY BENN, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-002207-01-FH
Before: Cavanagh, P.J., Murray, C.J., and Redford, JJ.
Defendant appeals as of right his bench trial convictions of felon in possession of a firearm, MCL 750.224f, felon in possession of ammunition, MCL 750.224f, carrying a concealed weapon, MCL 750.227, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. We affirm.
Defendant was arrested when a loaded gun was found in plain view next to his passenger seat during a traffic stop. Cocaine and heroin were also found under the passenger seat. On appeal defendant argues that (1) his trial counsel provided ineffective assistance by failing to file a motion to suppress the evidence seized from the car, (2) the evidence was not sufficient to bind him over for trial or to convict him, and (3) the prosecutor committed misconduct by inaccurately stating that the driver of the car would testify. We find no merit in any of these claims.
Defendant argues that defense counsel was ineffective because counsel did not file a motion to suppress the evidence found in the car in which defendant was a passenger, on the ground that its discovery resulted from an illegal search. We disagree.
A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. U.S. Const, Am VI; Const 1963, art 1, § 20. This "right to counsel encompasses the right to the effective assistance of counsel." People v Cline, 276 Mich.App. 634 637; 741 N.W.2d 563 (2007). The "effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Rodgers, 248 Mich.App. 702, 714; 645 N.W.2d 294 (2001). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) "that counsel's performance was deficient" and (2) "that counsel's deficient performance prejudiced the defense." People v Taylor, 275 Mich.App. 177, 186; 737 N.W.2d 790 (2007) (quotation marks and citation omitted). A counsel's performance is deficient if "it fell below an objective standard of professional reasonableness." People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007). The performance will be deemed to have prejudiced the defense if it is reasonably probable that, but for counsel's error, "the result of the proceeding would have been different." Id.
When, as in this case, there has been no evidentiary hearing to develop the issue, a claim of ineffective assistance of counsel is reviewed for errors apparent on the existing record. People v Unger, 278 Mich.App. 210, 253; 749 N.W.2d 272 (2008). The constitutional question whether an attorney provided ineffective assistance, depriving a defendant of the right to counsel, is reviewed de novo. Id. at 242.
Both the United States and Michigan Constitutions protect individuals from unreasonable searches and seizures. U.S. Const, Am IV; U.S. Const, Am XIV; Const 1963, art 1, § 11; People v Slaughter, 489 Mich. 302, 310-311; 803 N.W.2d 171 (2011). The lawfulness of a search or seizure depends on its reasonableness, and a warrantless search is unreasonable unless both probable cause and a circumstance establishing an exception to the warrant requirement exist. People v Snider, 239 Mich.App. 393, 406-407; 608 N.W.2d 502 (2000). The exclusionary rule generally bars the admission of evidence obtained during an unconstitutional search. People v Hawkins, 468 Mich. 488, 498-499; 668 N.W.2d 602 (2003).
A citizen may be briefly stopped for investigation if a police officer has a reasonable suspicion that criminal activity may be taking place. People v Oliver, 464 Mich. 184, 193; 627 N.W.2d 297 (2001). A brief investigatory stop may be necessary for public safety or to investigate possible criminal behavior. Terry v Ohio, 392 U.S. 1, 22; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968); People v Wallin, 172 Mich.App. 748, 750; 432 N.W.2d 427 (1988). An investigatory stop constitutes a seizure and requires specific and articulable facts demonstrating a reasonable suspicion that the person under investigation is committing, or has committed, a crime. People v Shankle, 227 Mich.App. 690, 693; 577 N.W.2d 471 (1998).
In this case, defendant argues that there was no evidence to demonstrate that the stop of the vehicle was based on a reasonable suspicion that defendant or the driver were involved in a crime. To evaluate whether an officer had reasonable suspicion to make an investigatory stop, the totality of the facts and circumstances is considered on a case-by-case basis. People v Horton, 283 Mich.App. 105, 109; 767 N.W.2d 672 (2009). A reasonable suspicion" 'entails something more than an inchoate or unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.'" People v Rizzo, 243 Mich.App. 151, 156; 622 N.W.2d 319 (2000), quoting People v Champion, 452 Mich. 92, 98; 549 N.W.2d 849 (1996). Overly technical reviews of the police officer's assessment are unwarranted, and deference should be afforded to the police officer's experience and the known patterns of certain types of lawbreakers. Id.
In this case, Redford Township Police Officer Edward French testified that he stopped the vehicle that defendant was in because the Detroit Police Department "needed assistance in stopping a homicide suspect car," thus articulating a particular suspicion of illegal activity. As defendant notes, there was no description of the suspect or of the evidence of a homicide. However, French testified that he was informed by the Detroit Police that a person in the subject vehicle was suspected of homicide. Officer French thus had precise information about a vehicle with a homicide suspect from other police officers who were apparently familiar with the homicide investigation. An investigative stop may be based on information supplied to the officer by another person, depending on the nature of the information. People v Tooks, 403 Mich. 568, 576; 271 N.W.2d 503 (1978). Officer French could reasonably have deemed reliable the information from another officer concerning a homicide suspect being in the vehicle. Considering the totality of the experiences, the evidence supported that Officer French had a reasonable suspicion that an occupant of the vehicle was involved in a crime, and his stop of the vehicle was justified to investigate his suspicion.
Officer French testified that, following the stop of the vehicle and detention of its occupants, he observed part of a gun with an extended ammunition magazine protruding from an area between the passenger seat and the passenger-side door. The plain-view exception to the warrant requirement allows a police officer to seize items in plain view if the officer is lawfully in the position to have that view and the evidence is obviously incriminatory. People v Antwine, 293 Mich.App. 192, 201; 809 N.W.2d 439 (2011). Defendant does not dispute that the weapon and ammunition were in plain view.
For these reasons, a motion to suppress would have been futile, and thus, defense counsel did not fail to provide effective assistance for having declined to bring one. See People v Fike, 228 Mich.App. 178, 182; 577 N.W.2d 903 (1998).
Defendant argues that the evidence at trial was insufficient to establish that he possessed the gun and ammunition beyond a reasonable doubt. We disagree. This Court reviews de novo a challenge to the sufficiency of the evidence to support a conviction. People v Ericksen, 288 Mich.App. 192, 195; 793 N.W.2d 120 (2010). A trial court's findings of fact in a bench trial are reviewed for clear error. See MCR 2.613(C); People v Gistover, 189 Mich.App. 44, 46; 472 N.W.2d 27 (1991). "A finding is clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made." Id.
Due process requires that evidence of every element of a crime be proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton, 407 Mich. 354, 366; 285 N.W.2d 284 (1979), citing In re Winship, 397 U.S. 358, 364; 90 S.Ct. 1068; 25 L.Ed.2d 368 (1970). To determine if the prosecutor produced evidence sufficient to support a conviction, the appellate court considers "the evidence in the light most favorable to the prosecutor" to ascertain" 'whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" People v Tennyson, 487 Mich. 730, 735; 790 N.W.2d 354 (2010), quoting People v Hardiman, 466 Mich. 417, 429; 646 N.W.2d 158 (2002). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn, are considered to determine whether the evidence was sufficient to sustain the defendant's conviction. Hardiman, 466 Mich. at 429.
At trial, three police officers testified that, after the driver of the vehicle had been detained, defendant was alone in the vehicle and took some time before he began to comply with orders to surrender himself. Two of the officers testified that defendant was moving in the vehicle before he cooperated with the police. After defendant was detained, Officer French approached the vehicle and observed part of a gun with an extended ammunition magazine protruding from an area between the passenger seat and the passenger-side door. Another officer seized the gun, magazine, and 16 bullets.
Defendant argues specifically that there was no evidence that the gun and ammunition belonged to him. However, possession of a firearm includes actual or constructive possession. People v...
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