People v. Person
| Decision Date | 04 November 2021 |
| Docket Number | 347907 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TREAVION LAWRENCE-KENYATTA PERSON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Ingham Circuit Court LC No. 18-000384-FC
Before: Jane E. Markey, P.J., and Jane M. Beckering and Mark T. Boonstra, JJ.
Defendant appeals by right his jury trial convictions of first-degree home invasion, MCL 750.110a(2); larceny of a firearm, MCL 750.357b; unlawful driving away of an automobile (UDAA), MCL 750.413; armed robbery, MCL 750.529; two counts of felon in possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of 22 to 48 years for his armed robbery conviction, 200 to 360 months for his first-degree home invasion conviction, 36 to 90 months for his larceny of a firearm conviction, 47 to 90 months for his UDAA conviction, and 36 to 90 months for each of his felon-in-possession convictions. Defendant also received the statutory two-year prison term for each of his felony-firearm convictions, to be served prior to the sentences for their predicate felonies. We affirm.
On October 14, 2017, defendant and two other men, all masked and armed with guns, broke into the home of the victim, Carnesha Flowers (Flowers), where she lived with her children. Flowers awoke with a gun pointed toward her face and her children around her bed, crying. The men forced Flowers at gunpoint to open her safe, which contained cash and her handgun, which were then taken by the intruders. The men also took televisions, jewelry, clothing, shoes, and Flowers's Chevy Tahoe. While in the house, one of the men, whom Flowers later identified as defendant, regularly removed his mask to speak. After the men left in Flowers's Tahoe, she called the police. Flowers told police that she could not identify the men, although she could recall defendant's face, who was then referred to as Suspect 2.
Three days later, Jamar Brown (Brown), the boyfriend of defendant's mother, called the police to report that his handgun had been stolen. Brown suspected that defendant had taken the gun and described defendant's clothing. The next day, October 18, 2017, Officer John David Lomakoski spoke briefly with defendant at his apartment, and then surveilled the residence while waiting for backup. Shortly thereafter, defendant left his apartment, wearing the exact clothing described by Brown, along with a red backpack, and crossed Saginaw Street. Officer Lomakoski reported to other officers via his radio that he had seen defendant cross the street against the signal, which caused the vehicles traveling the road to brake to avoid hitting him. Officer Lomakoski described defendant's actions as jaywalking. Michigan State Police Trooper Frederick Gibbs took the report, turned his patrol car around, drove directly up to defendant on the sidewalk, turned on the patrol car's emergency lights, exited the vehicle, announced that he was a police officer, and told defendant to stop; instead defendant ran. Trooper Gibbs gave chase, saw defendant try to discard his backpack, and tackled him. Defendant was arrested for resisting or obstructing a police officer. His backpack was searched incident to arrest and two guns were found, one belonging to Brown and one belonging to Flowers.
Defendant was charged in Case No. 17-000957-FH ("the Brown case") for the crimes arising out of his possession and theft of Brown's gun and his resisting or obstructing arrest. While defendant was in jail awaiting trial on those charges, Flowers participated in a photographic lineup with Lansing Police Detective Ellen Larson. Flowers identified defendant, stating that he looked like the person who had kept removing his mask. Subsequently, in the Brown case, defendant moved the trial court to suppress evidence of the guns found in his backpack, on the basis of an alleged unconstitutional search and seizure. The trial court denied the motion, determining that the arrest was lawful, which rendered the search incident to arrest constitutional.[1]
While the Brown case was pending, Flowers received a letter from Jermaine Blue (Blue), a federal inmate, who had spent time in jail with defendant in late 2017. Blue, who knew Flowers, stated that defendant had bragged while in jail about breaking into Flowers's home and robbing her. Flowers, having learned defendant's name from Blue, found defendant on Facebook and verified her belief that defendant was the person who had removed his mask during the home invasion. Blue testified at trial that defendant had admitted to home invasion and robbery.
In March 2018, defendant was charged in the present case. After a preliminary examination, during which Flowers identified defendant again, defendant was bound over on all of the charges of which he was eventually convicted (except for armed robbery, which had not yet been charged). Once in the circuit court, the prosecution moved to join the Brown case and the present case for trial. The trial court granted the motion over defendant's objection, and held, alternatively, that evidence from the Brown case relevant to the present case would be admissible even if the cases were not joined.
During the pretrial proceedings, defendant moved the trial court to suppress Flower's identification, both pretrial and during trial, arguing that the photographic lineup was unduly suggestive and that an independent basis for the identification was lacking. The trial court denied the motion. The prosecution then moved for leave to amend the felony information to add a charge of armed robbery, which the trial court granted over defendant's objections.
Shortly before trial was to commence in January 2019, the prosecution disclosed evidence to the defense that a federal court in an unrelated case, United States v Demyers, opinion of the United States District Court for the Western District of Michigan, issued June 6, 2017 (Case No. 1:17:CR:61), had discounted Officer Lomakoski's testimony, finding that Officer Lomakoski did not have a reasonable suspicion to search the defendant in that case, and had granted the defendant's motion to suppress. Defendant then renewed his motion to suppress evidence of the guns found in his backpack, arguing that Officer Lomakoski had likely lied about seeing defendant cross against the signal and impede traffic. After reviewing Officer Lomakoski's preliminary examination testimony from the Brown case, watching Trooper Gibbs's patrol car dashcam video, considering the federal court decision, and hearing the parties' arguments, the trial court again denied the motion.
On the first day of trial, the trial court ordered the Brown case and the present case severed. Defendant was then tried on and convicted of the charges as already noted. During the sentencing hearing, the trial court noted that it had granted the prosecution's motion to enter a nolle prosequi regarding the charges in the Brown case. Defendant was sentenced as described. This appeal followed.
During the pendency of this appeal, this Court denied two motions by defendant for a remand to the trial court to hold an evidentiary hearing regarding the various issues defendant had raised on appeal. People v Person, unpublished order of the Court of Appeals, entered December 29, 2020 (Docket No. 347907); People v Person, unpublished order of the Court of Appeals, entered August 3, 2021 (Docket No. 347907). These motions were denied "without prejudice to a case call panel of this Court determining that remand is necessary once the case is submitted on a session calendar."
Defendant argues that the trial court should have granted his motion to suppress evidence of the guns found in his backpack because the search and seizure were unconstitutional. Alternatively, defendant argues that the trial court abused its discretion by denying his request for an evidentiary hearing. We disagree.
We review for clear error a trial court's factual findings on a motion to suppress. People v Hrlic, 277 Mich.App. 260, 262-263; 744 N.W.2d 221 (2007). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v Blevins, 314 Mich.App. 339, 348-349; 886 N.W.2d 456 (2016). We review de novo the trial court's ultimate ruling on the motion to suppress. People v Williams, 472 Mich. 308, 313; 696 N.W.2d 636 (2005).
We review for an abuse of discretion a trial court's decision to grant or deny a request for an evidentiary hearing. People v Unger, 278 Mich.App. 210, 216-217; 749 N.W.2d 272 (2008). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Id. at 217.
"Both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures." People v Pagano, __ Mich. __, __; __ N.W.2d __ (2021) (Docket No 159981); slip op at 4, citing U.S. Const, Am IV; Const 1963, art 1, § 11. "The lawfulness of a search or seizure depends on its reasonableness." People v Moorman, 331 Mich.App. 481, 485; 952 N.W.2d 597 (2020) (quotation marks and citation omitted). "In general, a 'seizure' occurs for Fourth Amendment purposes when a reasonable person would have believed that he or she was not free to leave." People v Anthony, 327 Mich.App. 24, 33; 932 N.W.2d 202 (2019), citing United States v Mendenhall, 446 U.S. 544, 554; 100 S.Ct. 1870; 64 L.Ed.2d 497 (1980). "A search occurs under the ...
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