People v. Blevins

• Decision Date: 11 February 2016
• Docket Number: Docket No. 315774.
• Citation: 314 Mich.App. 339,886 N.W.2d 456
• Parties: PEOPLE v. BLEVINS.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 339

886 N.W.2d 456

PEOPLE

v.BLEVINS.

Docket No. 315774.

Court of Appeals of Michigan.

Submitted March 10, 2015, at Detroit.

Decided Feb. 11, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

Elizabeth L. Jacobs, Detroit, for defendant.

Before: RONAYNE KRAUSE, P.J., and K.F. KELLY and SHAPIRO, JJ.

RONAYNE KRAUSE

, P.J.

Defendant was convicted by a jury of five counts of assault with intent to do great bodily harm less than murder, MCL 750.84

, one count of second-degree murder, MCL 750.317, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him to five to ten years' imprisonment for each of his assault with intent to do great bodily harm less than murder convictions and to thirty to sixty years' imprisonment for the second-degree murder conviction, all to be served concurrently. The court also imposed a mandatory two-year felony-firearm sentence, to be served consecutively as provided by the felony-firearm statute. Defendant appeals his convictions and sentences. We affirm defendant's convictions, but vacate his sentences and remand for resentencing.

The victims in this case were part of a group of friends who went to downtown Detroit to celebrate the graduation of Carlos Spearman. The group consisted of Spearman, Courtney “Cortez” or “Tez” Smith, DeMario Drummond, Philip Knott, Raleigh Ross, Zachery Easterly, Raymond Malone, and Ron Banks. Some of the friends were football players at Wayne State University at the time. Spearman and a few of the others were drinking, but Smith was not drinking and served as the group's designated driver that evening. After being denied access to Club Envy because the bouncer deemed Spearman too intoxicated, the group headed to a Coney Island for him to sober up. On the way, the group encountered some men handing out fliers; one of the friends recalled that among the people handing out fliers was defendant's eventual codefendant, Quintin King.¹

Also on the way, Easterly decided to relieve himself in an alley in which Courtney's car was parked. Also parked there was another car, and while he was urinating, several people approached Easterly, one of whom expressed concern that Easterly was urinating on the person's car. The friends' recollections of how many people were in the approaching group varied, but several of them identified King, who proceeded to punch Easterly. Several of the friends also identified defendant as a member of the group.² The two groups had a brief physical struggle before separating approximately 12 feet from each other.

The two groups exchanged some words, and King said to Ross, “ ‘[W]e got a big fellow here. Here, got something for you.’ ” Then defendant flashed a gun he had in his pants at the group of friends. Defendant also commanded the group of friends to back up, which they obliged. Malone then heard King say to defendant, “ ‘Give me the Mag. Give me the Mag.’ ” Defendant then apparently passed the gun to King. Smith tried to neutralize the fight once the gun was shown. King then fired a shot into the pavement, and the group of friends fled, or attempted to flee, for safety. Spearman was shot in the leg, and Smith was fatally shot through his airway. Ten .45–caliber bullet casings were found at the scene.

During the ensuing homicide investigation, several of the friends were shown multiple photographic lineups, first including King, and later including defendant. In one of the latter arrays, Malone identified defendant as the “guy that handed [King] the gun.” Malone told the officer that defendant had said, “ ‘I advise y'all to step back.’ ” Malone told the officer that defendant then lifted up his shirt and flashed the gun. Malone did not see the gun being passed, but he assumed it happened because defendant showed the gun and King shot a gun that looked identical. Ross was shown a photographic array that included defendant and identified him in the photograph, but Ross did not see defendant do anything other than be a part of the group. Knott claimed to have spoken with police and looked at photographs, but the officer in charge of the case, Derryck Thomas, did not have a record of Knott being interviewed because Knott avoided being a part of the police investigation. There are no facts in evidence that the police acted improperly or suggestively with the photographic arrays, although defendant contends that it was improper to place him in the first spot on the photographic arrays that included him.

Allante Mosley,³ who was in jail for charges unrelated to the instant case, approached officers because he claimed to have information about a homicide. Officer Thomas and an ATF agent spoke with Mosley and concluded that he just wanted help with his current charges. They remarked that Mosley looked like King, to the point of being possible brothers or mistaken for each other. There was never a deal reached between Mosley and the prosecution. Officer Thomas saw no value in adding Mosley to a lineup with King. However, Dequan Todd, who was also in jail awaiting unrelated charges of which he was eventually acquitted, shared a cell with Mosley for a month, during which time Mosley allegedly openly claimed in the jail ward that he was responsible for “ ‘the Wayne State murder.’ ” Todd later shared a cell with King and informed King of Mosley's comments. King's lawyer mentioned Todd's potential testimony to defendant's lawyer; however, defendant's lawyer decided that this information did not seem credible and never contacted Todd. However, after defendant was convicted, defendant moved for a new trial, asserting, inter alia, that Todd provided newly discovered evidence. The trial court denied the motion.

Defendant first argues that his identification by four witnesses was the product of impermissibly suggestive pretrial procedures that led to an irreparable misidentification. In particular, he argues that the photographic arrays were improper and that an expert witness should have been presented on the topic of eyewitness identification. Defendant argues that eyewitness identification is the least reliable kind of evidence in a criminal conviction, stating that there have been 250 exonerations based on DNA, 76% of which involved misidentification as a factor. Defendant relies on a recent New Jersey Supreme Court holding that discussed problems with identification testimony and a standard for how to judge the reliability of identification testimony. State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011)

. He also argues that his in-court identification was highly unreliable and likely the product of false memories; for example, he argues, Knott identified him because he was one of the “ ‘only brothers sitting at the table,’ ” and this occurred almost two years after the incident. He argues that there was no independent basis for his identification other than unduly suggestive procedures before trial. See People v. McElhaney, 215 Mich.App. 269, 286–288, 545 N.W.2d 18 (1996)

.

A trial court's decision to admit identification evidence will not be reversed unless it is clearly erroneous. Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. People v. McDade, 301 Mich.App. 343, 356, 836 N.W.2d 266 (2013)

. Erroneously admitted identification testimony warrants reversal only when the error is not harmless beyond a reasonable doubt. People v. Hampton, 138 Mich.App. 235, 239, 361 N.W.2d 3 (1984). A photographic identification procedure can be so suggestive as to deprive the defendant of due process. People v. Gray, 457 Mich. 107, 111, 577 N.W.2d 92 (1998). The fairness of an identification procedure is evaluated in light of the totality of the circumstances. People v. Lee, 391 Mich. 618, 626, 218 N.W.2d 655 (1974).

Defendant is of course correct in asserting that “identification was the key issue in this case,” so we agree that the propriety thereof is highly significant. We are aware that the state of New Jersey has expounded on the scientific evidence tending to show that eyewitness testimony is inherently unreliable. See Henderson, 208 N.J. at 248–283, 27 A.3d 872

. However, that case is not binding on this Court. See People v. Jamieson, 436 Mich. 61, 86, 461 N.W.2d 884 (1990) (opinion by BRICKLEY, J.). More importantly, irrespective of whether eyewitness testimony is unreliable in general, it requires a highly tenuous leap of logic to extrapolate that defendant's identification in particular must be wrong. Furthermore, because fairness is assessed on the basis of a totality of the circumstances, it is also relevant whether defendant had a meaningful opportunity to argue to the jury why the witnesses should not be believed.

We note that Michigan is not unfamiliar with the concept that human memory and perception are fallible. The standard jury instruction, which the trial court properly gave to the jury, clearly requires the jury to evaluate how reliable any witness's identification might have been. Defendant had ample opportunity to argue why the specific witnesses against him should have been deemed unreliable, including why he believed Knott's identification must be guesswork. We perceive no reason why placing defendant's photograph first in a lineup is inherently suggestive, and in a random assortment the first slot is no less likely than any other. Defendant contends that the lineups were not “double blind,”⁴ so the officers conducting the lineup might have subtly or unconsciously suggested a “correct” choice to the witnesses, but this conclusion is pure speculation. The fact that not all witnesses presented identical testimony or even identified defendant is simply normal. Any infirmities either were or could have...