People v. Moore

• Decision Date: 27 October 2022
• Docket Number: 352595
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DOMINIQUE MARTELL MOORE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DOMINIQUE MARTELL MOORE, Defendant-Appellant.

No. 352595

Court of Appeals of Michigan

October 27, 2022

UNPUBLISHED

Wayne Circuit Court LC No. 19-002274-01-FC

Before: RONAYNE KRAUSE, P.J., and JANSEN and MURRAY, JJ.

PER CURIAM.

Defendant appeals as of right his convictions, following a jury trial, of armed robbery, MCL 750.529, assault with intent to rob while armed (AWIRWA), MCL 750.89, unlawful imprisonment, MCL 750.349b, felon in possession of a firearm, MCL 750.224f(5), felon in possession of ammunition, MCL 750.224f(6), felonious assault, MCL 750.82, possession of a short-barreled shotgun, MCL 750.224b, and five counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 20 to 35 years each for the robbery and assault-with-intent-to-rob convictions, 5 to 15 years for the unlawful-imprisonment conviction, one to five years each for the felon-in-possession and possession-of-a-shotgun convictions, and one to four years for the felonious assault conviction, to be served consecutive to concurrent two-year terms of imprisonment for the felony-firearm convictions. We vacate defendant's convictions of AWIRWA and the accompanying felony-firearm conviction, which violate defendant's right to be free from double jeopardy. In all other respects, we affirm.

I. BASIC FACTS

Defendant's convictions arise from the February 2019 armed robbery of Tamara King in Detroit. King had been using a dating app called Skout.^[1] King met defendant, who was calling himself "Mario," on the site, and the two communicated for some time. Defendant and King both

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uploaded photographs of themselves to their respective profiles on the site. On February 7, 2019, the two exchanged phone numbers so they could communicate over the phone. King and defendant had conversations on the phone, and the two eventually met at King's house. When they first met in person, the two just sat on the couch, drank, smoked marijuana, and talked. King had no concerns about defendant at the time, and the two met again on February 10 at King's house. Defendant arrived sometime in the later evening and the two again sat, drank, smoked marijuana, and talked. Defendant left because he purportedly had to take a car seat to his sister.

Sometime after leaving, defendant called King back, saying that he wanted to return. King initially resisted because it was late, but she eventually relented. When defendant returned, he handed King a bag of chips that King had requested, and he then excused himself to use the bathroom. Several minutes later, defendant returned. King was not paying much attention before she heard the sound of a gun cocking, which made her look up. She then saw defendant wearing gloves and wielding a handgun.

Defendant asked King where the "stuff" or money was and led King around the house looking for items. When they reached King's bedroom, defendant took a Versace robe, some eyeglasses, a Rolex watch, and a white and gold diamond chain. Defendant also took the DVR box that was in King's bedroom because he noticed that there were cameras around the exterior of the house. The two went downstairs to the main level, and on the way out defendant had King grab a pair of Gucci shoes that were near the door. At gunpoint, defendant led King to a small, white car that was outside. With King in the car, defendant drove north down the street, turned left at the next street, and then stopped at the next street after that. At that point, defendant instructed King to reset her iPhone, which she did. Defendant then took the iPhone, let King out, and drove away.

Officer Timothy Nolan was the initial officer in charge. With King's consent, Officer Nolan obtained data from Skout that showed King's communication history. Officer Nolan found a series of messages with a person who had the same phone number that King had independently provided. After seeing that the number from Skout matched the number King had provided, Officer Nolan procured a search warrant for data from the cellphone carrier for that number, which permitted an analyst to create a map showing where the cellphone had been located. Officer Nolan performed a LEIN search for defendant, which revealed that "Mario" was an alias used by defendant. Officer Nolan created a photo array with defendant's photo for King to review. The array contained photos of six individuals, and King selected defendant's photo from the lineup.

An arrest team thereafter showed up at defendant's home, which had a white car parked outside, and arrested him. Defendant was arrested and placed in a police scout car. A police officer, without providing any Miranda^[2] warnings, asked defendant if there were any guns in the house. Defendant indicated there was a shotgun in a closet. Defendant's live-in girlfriend consented to a search of the premises, and the police found a sawed-off shotgun and two magazines for a Glock handgun in a front closet. Officers also recovered a Versace robe. At trial, King

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positively identified the robe as hers, and she noted distinguishing characteristics and stains from both makeup and bodily fluids on the robe.

At trial, the prosecution introduced evidence of defendant's cell-phone usage and celltower data. The data showed, among other things, that defendant's phone made calls to King's 910 number on the night of February 10 and 11 at 7:26 p.m., 7:27 p.m., 8:29 p.m., 9:44 p.m., 11:55 p.m., and 12:06 a.m.

The jury convicted defendant as previously described, but it acquitted him of Counts 11 and 14, which were felony-firearm counts related to the felon-in-possession and possession-of-a-shotgun charges, respectively.

II. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he is entitled to a new trial because trial counsel was ineffective. We disagree.

Defendants have the guaranteed right to the effective assistance of counsel. Strickland v Washington, 466 U.S. 668, 686; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); People v Aceval, 282 Mich.App. 379, 386; 764 N.W.2d 285 (2009). Effective assistance of counsel is presumed, and the defendant has the burden of proving otherwise. People v LeBlanc, 465 Mich. 575, 578; 640 N.W.2d 246 (2002). Generally, to establish a claim of ineffective assistance, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different." People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). However, such performance must be measured without the benefit of hindsight. People v LaVearn, 448 Mich. 207, 216; 528 N.W.2d 721 (1995).

A. FACIAL-RECOGNITION SOFTWARE

Defendant first argues that trial counsel was ineffective by failing to challenge the validity of the facial-recognition software. Defendant generally argues that facial-recognition software has been shown to be less reliable when the subject has dark skin, like defendant. While that may be true, the facial recognition software was only used to put a name to the photographs retrieved from Skout for investigatory purposes. Evidence of the facial recognition software was therefore only presented as background to how Officer Nolan ended up including a photograph of defendant in the lineup that he showed to King. Even if the facial recognition software is inherently unreliable, Officer Nolan testified that he did not suggest to King that the person who robbed her was included in the array; rather, he only asked her whether she recognized any of the people in the photos. King's selection of defendant's photograph from the array had, in short, absolutely nothing to do with the methodology used by the police to obtain that photograph. Therefore, any unreliability in the facial recognition software cannot have prevented defendant from obtaining a fair trial. See Lisenba v California, 314 U.S. 219, 236-237; 62 S.Ct. 280; 86 L.Ed. 166 (1941). The jury still would have heard King's identification of defendant as the perpetrator at trial and heard her previous identification of defendant in the photo lineup, and it still would have heard the evidence linking defendant's cell phone number to the calls that were made to King's phone on the night of the offense. Challenging the facial recognition software would have gained defendant nothing in this

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case,^[3] and counsel cannot be ineffective for failing to undertake a futile gesture. People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010).

B. PHOTO ARRAY

Defendant also argues that trial counsel was ineffective by withdrawing a motion for a Wade^[4] hearing and otherwise failing to challenge King's identification of defendant in the photo lineup. In his Standard 4 brief,^[5] defendant also challenges the admissibility of the photo array. For brevity, we will address both arguments at once.

The purpose of a Wade hearing is to inquire into whether a witness who identified a defendant at an unacceptably suggestive or otherwise improper lineup (or similar pretrial identification procedure) had some permissible independent basis to identify the defendant in the courtroom, and thereby to determine whether the identification must be excluded as evidence. See People v Kachar, 400 Mich. 78, 91-97; 252 N.W.2d 807 (1977). A Wade hearing may also be used to inquire directly into the propriety of the lineup. See People v Kurylczyk, 443 Mich. 289, 302303; 505 N.W.2d 528 (1993); see also People v Fordham, 132 Mich.App. 70, 76; 346 N.W.2d 899 (1984), reversed on other grounds 419 Mich. 874 (1984). Our Supreme Court has explained that:

Generally, the photo spread is not suggestive as long as it contains some photographs

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