People v. Hornsby

• Decision Date: 10 September 2002
• Docket Number: Docket No. 227945.
• Citation: 650 N.W.2d 700,251 Mich. App. 462
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Q. HORNSBY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

650 N.W.2d 700

251 Mich. App. 462

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Q. HORNSBY, Defendant-Appellant.

Docket No. 227945.

Court of Appeals of Michigan.

Submitted March 6, 2002, at Detroit.

Decided May 24, 2002, at 9:05 a.m.

Released for Publication September 10, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Timothy J. Cassady, Chief, Appeals, Research, and Training, for the people.

State Appellate Defender (by Gail Rodwan), for the defendant on appeal.

Before: HOOD, P.J., and GAGE and MURRAY, JJ.

GAGE, J.

Following a jury trial, defendant was convicted of armed robbery, M.C.L. § 750.529, carrying a concealed weapon (CCW), M.C.L. § 750.227, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court sentenced defendant as a third-offense habitual offender, M.C.L. § 769.11, to enhanced sentences of thirty to fifty years' imprisonment for the armed robbery conviction and to a concurrent term of five to ten years' imprisonment for the CCW conviction and sentenced him to a consecutive term of five years' imprisonment for the felony-firearm conviction, defendant's second conviction for that offense. Defendant appeals as of right. We affirm defendant's convictions and his sentences for armed robbery and felony-firearm, but vacate the CCW sentence and remand for partial resentencing.

I

Defendant's convictions stem from his June 7, 1999, robbery of an Arbor drugstore in Grand Blanc Township. Defendant entered the store shortly before closing time and placed some items in a handheld shopping basket. He approached a cashier and asked to speak to the store manager, ostensibly to obtain help in locating items he wished to purchase. An employee directed defendant to the shift supervisor, and she and defendant went to locate the items sought by defendant. As they stood alone in an aisle of the store, defendant produced a handgun and threatened to shoot the supervisor and the other store employees unless the supervisor took him to the store safe. The two then went into the manager's office, where defendant forced the supervisor to open the safe and place money in a manila envelope. Defendant then left the store after again threatening to shoot the supervisor and the other employees if she did not remain in the office for five minutes after his departure. The police ultimately apprehended defendant through the use of fingerprint analysis on a package of light bulbs found in the shopping basket that defendant left inside the store office.

II

Defendant first contends that the trial court erred in permitting the shift supervisor and another employee to give identification testimony at his trial. According to defendant, both witnesses attended a pretrial custodial lineup that was impermissibly suggestive because of the physical differences between defendant and the other lineup participants and because the witnesses had no independent basis from which to identify him at trial.

This Court will not reverse a trial court's decision to admit identification evidence unless it finds the decision clearly erroneous. Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. People v. Williams, 244 Mich.App. 533, 537, 624 N.W.2d 575 (2001). A lineup can be so suggestive and conducive to irreparable misidentification that it denies an accused due process of law. People v. Anderson, 389 Mich. 155, 169, 205 N.W.2d 461 (1973). 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. Kurylczyk, 443 Mich. 289, 306, 311-312, 505 N.W.2d 528 (Griffin, J.), 318 (Boyle, J.); 443 Mich. 289, 505 N.W.2d 528 (1993). Physical differences among the lineup participants do not necessarily render the procedure defective and are significant only to the extent that they are apparent to the witness and substantially distinguish the defendant from the other lineup participants. Kurylczyk, supra at 312, 505 N.W.2d 528 (Griffin, J.), 318 (Boyle, J.). Physical differences generally relate only to the weight of an identification and not to its admissibility. People v. Sawyer, 222 Mich.App. 1, 3, 564 N.W.2d 62 (1997). In this case, we find nothing in either the lineup procedure or the lineup itself to support defendant's assertion of impermissible suggestiveness. We first note that the photographic evidence provided to this Court reveals no discrepancy among the physical characteristics of the lineup participants so readily apparent as to form a basis for the exclusion of the identification testimony. Although the lineup participants did not exactly mirror each other in height and weight, we find nothing significantly distinguishing defendant from the other participants when the participants are viewed as a group. We also note that the witnesses' testimony during the suppression hearing supports the prosecutor's claim that neither witness singled out defendant because of the fact that his physical characteristics differed markedly from those of the other participants.

Furthermore, defendant points to nothing in the lineup procedure itself tending to show that the conduct of the lineup was impermissibly suggestive. Neither eyewitness was promised before the lineup that the person who robbed the store would be present in the lineup. Moreover, defendant was represented by counsel during the lineup selection procedure, and counsel had the opportunity to examine the participants before the lineup and assist with their placements within the lineup. Counsel explained that he deliberately placed the participants in their positions in the lineup to minimize the differences in their heights. Counsel did not object to the individuals used in the lineup and explicitly stated during the suppression hearing that he found the participants' height and weight differences to be minor.

We find no error in the trial court's decision that the lineup procedure was proper, and conclude that the trial court correctly allowed the prosecutor to present both the challenged pretrial and in-court identification testimony of the eyewitnesses.

III

Defendant also argues that the trial court erred in scoring fifty points for offense variable 7 (OV 7) when calculating the legislative sentencing guidelines for armed robbery on the basis of "terrorism" in defendant's actions toward the shift manager during the robbery. A sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score. People v. Leversee, 243 Mich.App. 337, 349, 622 N.W.2d 325 (2000); People v. Derbeck, 202 Mich. App. 443, 449, 509 N.W.2d 534 (1993). "Scoring decisions for which there is any evidence in support will be upheld." People v. Elliott, 215 Mich.App. 259, 260, 544 N.W.2d 748 (1996).

We find that the trial court did not abuse its discretion in scoring OV 7 as fifty points. Under M.C.L. § 777.37, the trial court must score OV 7 as fifty points if the court finds evidence of "terrorism," which M.C.L. § 777.37(2)(a) defines as "conduct designed to substantially increase the fear and anxiety a victim suffers during the offense." The testimony of the shift supervisor, whom defendant held at gunpoint in the manager's office while he forced her to transfer money from the store safe into a manila envelope, supported the scoring decision. The shift supervisor testified that when defendant first pulled out his gun he threatened that if she did not give him what he wanted he would shoot her and everybody else in the store. Throughout the robbery, defendant held the gun, and at one point the supervisor heard the gun click as if being cocked when someone began turning the knob of the closed manager's office door. The supervisor also stated that once she had given defendant the money, defendant told her to wait five threats, refusing to leave the office even after another employee advised her that defendant had gone. Defendant did more than simply produce a weapon and demand money. Defendant's actions in cocking the weapon and repeatedly threatening the life of the shift supervisor and the other employees supported the court's finding that he deliberately engaged in "conduct designed to substantially increase the fear and anxiety a victim suffers during the offense." People v. Johnson, 202 Mich.App. 281, 289, 508 N.W.2d 509 (1993). Consequently, we find no error in the trial court's scoring decision.

IV

Defendant next asserts that the trial court erred in sentencing him as a third-offense habitual offender under M.C.L. § 769.11. Defendant reasons that although the prosecutor timely filed a notice to seek sentence enhancement in accordance with M.C.L. § 769.13, a later, untimely amendment of the notice to correct the prior felonies enumerated therein should have foreclosed sentence enhancement under the statute. Defendant's argument involving the meaning of M.C.L. § 769.13 raises an issue of statutory interpretation that we review de novo. People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998).

On September 15, 1999, the prosecutor filed a notice that it intended to seek enhancement of defendant's sentence in this case under M.C.L. § 769.11. According to the notice, defendant's prior convictions of attempted resisting and obstructing in 1995 and armed robbery in 1996 supported the enhancement. The prosecutor mailed a copy of the notice to defendant on the same day, and the prosecutor also maintained that defendant received another copy of the notice at his arraignment on September 20, 1999. On October 15, 1999, the prosecutor filed an amendment to this notice that replaced the incorrect, underlying armed robbery conviction with a 1992 resisting and...