Opinion
No. 334257
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DENNIS BRANDON ANDERSON, Defendant-Appellant.
UNPUBLISHED Washtenaw Circuit Court
LC No. 15-001100-FC Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
Defendant, Dennis Anderson, appeals as of right his jury convictions of armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.157a and MCL 750.529, carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him to prison terms of 150 months to 20 years each for the armed robbery and conspiracy convictions, and 40 to 60 months each for the CCW and felon-in-possession convictions, to be served concurrently, but consecutive to a two-year term of imprisonment for the felony-firearm conviction. Because there are no errors warranting relief, we affirm.
On appeal, the prosecutor has suggested that the trial court erred by ordering that Anderson's conspiracy to commit armed robbery conviction and his CCW conviction to be served consecutive to his felony-firearm conviction. The prosecutor suggests that the error was ministerial in nature, so we could simply remand for correction of the error. We conclude, however, that if there is an error with the consecutive sentencing, it is a sentencing error that would require a remand for resentencing. We are unprepared to order such relief on an issue that was neither preserved in the trial court nor raised as an issue on appeal. However, if Anderson is inclined, he may move for post-judgment relief before the trial court. See MCR 2.612(C).
I. BASIC FACTS
Anderson was convicted of robbing Ramesh Surisetty at Surisetty's home on April 2, 2015. Surisetty testified that he answered an advertisement on Craigslist to purchase an iPhone 6. After exchanging text messages, Surisetty met with a person at Surisetty's house. After the person showed Surisetty an iPhone and Surisetty paid for the phone, the person displayed a firearm and announced a robbery. The person took Surisetty's jewelry and another iPhone that belonged to Surisetty, and then left.
Surisetty identified Anderson as the robber, both in a photographic lineup before trial and at trial. The police discovered that Phillip Milian sold some of Surisetty's stolen jewelry at a pawnshop the day after the offense, and then learned that Anderson was one of Milian's associates. The police thereafter questioned Anderson, who confessed to robbing Surisetty. The defense theory at trial was that Milian and another person committed the offense, Anderson was not involved, and that he had falsely confessed to his participation in the offense to pay off a gambling debt that he owed to Milian.
II. ANDERSON'S PRIOR CONVICTIONS
A. STANDARD OF REVIEW
Anderson argues that the trial court erred by denying his lawyer's request on the first day of trial to suppress the nature of his prior convictions for second-degree child abuse and CCW, which were identified in the Information as the prior felony convictions that supported the charge of felon in possession of a firearm. Anderson's lawyer sought to compel the prosecution to stipulate to Anderson's prior conviction for unlawfully driving away an automobile (UDAA) to support the felon-in-possession charge. We review for an abuse of discretion a trial court's decision regarding the admission of evidence. People v Taylor, 252 Mich App 519, 521; 652 NW2d 526 (2002). An abuse of discretion occurs when the trial court chooses an outcome that is outside the range of principled outcomes. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).
B. ANALYSIS
The elements of felon in possession of a firearm are: (1) the defendant possessed a firearm, (2) the defendant had previously been convicted of a felony or a specified felony, and (3) the defendant had not regained eligibility to possess a firearm. People v Perkins, 473 Mich 626, 630 n 5; 703 NW2d 448 (2005). Therefore, MCL 750.224f requires evidence of a prior felony conviction to establish that the defendant is not eligible to possess a firearm. Courts have recognized that the introduction of evidence of the specific crime for which a defendant was convicted "generally carries a risk of unfair prejudice to the defendant." Old Chief v United States, 519 US 172, 185; 117 S Ct 644; 136 L Ed 2d 574 (1997); see also People v Swint, 225 Mich App 353, 378-379; 572 NW2d 666 (1997). Accordingly, when a defendant offers to stipulate that he is ineligible to possess a firearm and that the ineligibility is the result of a felony conviction, no other information is necessary to establish this element of the offense. People v Nimeth, 236 Mich App 616, 627; 601 NW2d 393 (1999). Absent such a stipulation, however, the prosecution is entitled to present evidence to prove that the defendant had a prior felony conviction. Id.
Anderson has not identified any support for his argument that the trial court was required to limit the specific convictions the prosecutor could use to prove that he had been previously convicted of a felony. Indeed, because the requirements for restoration of the right to possess a firearm differ depending on the type of prior felony conviction, see MCL 750.224f(1) and (2), the predicate felony is itself relevant to determining whether the prosecution has satisfied its burden of proving the elements of felon in possession of a firearm. See People v Perkins, 262 Mich App 267, 270-271; 686 NW2d 237 (2004), aff'd 473 Mich 626 (2005), abrogated on other grounds People v Smith-Anthony, 494 Mich 669; 873 NW2d 415 (2013) (discussing burden of proof in connection to a specified felony). Moreover, given that Anderson's lawyer did not offer to stipulate that Anderson had a prior felony conviction, the trial court did not abuse its discretion by permitting the prosecutor to introduce evidence of the prior convictions listed in the original Information, and by denying the defense request to compel the prosecutor to stipulate to a different conviction.
III. ADMISSION OF FACEBOOK STATEMENTS
A. STANDARD OF REVIEW
Anderson next argues that the trial court erred when it allowed the prosecutor to introduce Facebook statements made by Milian's ex-girlfriend to the effect that someone named "Denny" was involved in committing the charged robbery with Milian. Anderson argues that the statements were inadmissible hearsay, irrelevant, unduly prejudicial, and that their admission violated his constitutional right of confrontation. Again, a trial court's decision to admit evidence is reviewed for an abused of discretion. Taylor, 252 Mich App at 521.
B. ANALYSIS
Hearsay is defined as "an unsworn, out-of-court statement that is offered to establish the truth of the matter asserted." People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007); MRE 801(c). Hearsay is generally inadmissible unless the statement falls under one of the exceptions recognized by the rules of evidence. Id. However, a statement that is offered to show the effect that it had on the listener, not for the truth of the matter asserted, does not constitute hearsay under MRE 801(c). People v Fisher, 449 Mich 441, 449-450; 537 NW2d 577 (1995). Such a nonhearsay use of a prior statement is admissible when the effect on the hearer or reader is relevant. Id. at 449. The prosecutor explicitly stated that the statements were not being offered to prove the truth of the matters asserted. Rather, they were introduced to explain why the police began investigating Anderson as a suspect. Accordingly, because the statements were not offered for their truth, they were not hearsay.
The statements were also relevant because, regardless of whether they were facially true, they explained how the police came to question Anderson, rather than choosing him at random, and how this in turn led to his later confession. The statements were also relevant to show a connection between Anderson and Milian, who was connected to the crime through the pawn shop evidence.
We also reject Anderson's argument that the evidence should have been excluded under MRE 403 because it was unduly prejudicial. All relevant evidence is inherently prejudicial to some extent, and it is only unfairly prejudicial evidence that may warrant exclusion. People v Pickens, 446 Mich 298, 336-337; 521 NW2d 797 (1994). " 'This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock.' " Fisher, 449 Mich at 452 (citation omitted). Because a principal issue at trial was the identity of the perpetrator, evidence explaining why the police focused their investigation on Anderson cannot be characterized as "interjecting considerations extraneous" to the prosecution.
Finally, because the Facebook posts were not admitted for their truth, admission of the statements did not violate Anderson's right of confrontation protected by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012). The Confrontation Clause only applies to "statements used as substantive evidence." Nunley, 491 Mich at 697 (quotation marks and citation omitted). The Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v Washington, 541 US 36, 59 n 9; 124 S Ct 1354; 158 LEd2d 177 (2004).
IV. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
Anderson asserts that the prosecutor committed misconduct by introducing a video recording from the pawn shop, which depicted Milian and another African-American male selling Surisetty's stolen jewelry. Anderson acknowledges that this claim was not preserved with an appropriate objection in the trial court; therefore, our review is limited to plain error affecting his substantial rights. People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011).
B. ANALYSIS
Contrary to what Anderson asserts, the pawn shop video was not introduced by the prosecutor, but rather was played at the insistence of his defense lawyer. Anderson cannot now complain that admission of the video was error. See People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000). In addition, the admission of this evidence did not affect Anderson's substantial rights. The investigating police officer unequivocally and repeatedly stated that Anderson was not depicted in the video and that he was not present during Milian's sale of the jewelry. Anderson's lawyer's decision to show the video supported an apparent strategy of blaming the robbery on Milian and the other man in the video. This unpreserved issue does not warrant appellate relief.
V. EVIDENCE OF ANDERSON'S CRIMINAL HISTORY
A. STANDARD OF REVIEW
Anderson next argues that he was denied a fair trial due to repeated references to his prior criminal history and incarceration. However, the record shows that Anderson's lawyer expressly approved of the introduction of Anderson's profile from the Michigan Department of Corrections' Offender Tracking Information System (OTIS) website, and that it was Anderson's lawyer who elicited the evidence of the jail calls between Anderson and Milian. By affirmatively approving or eliciting this evidence, Anderson's lawyer waived any claim of error related to the introduction of the evidence. People v Vaughn, 491 Mich 642, 663; 821 NW2d 288 (2012). Furthermore, the remaining claims related to this issue were not preserved with an appropriate objection at trial. Therefore, Anderson must establish a plain error affecting his substantial rights. Danto, 294 Mich App at 605.
B. ANALYSIS
First, contrary to what Anderson's suggests on appeal, the investigating police officer did not testify that the sheriff's department was investigating Anderson in connection with his possible involvement in another crime. Viewed in context, the officer's testimony indicated that the other investigation involved Milian, not Anderson. Thus, the testimony did not affect Anderson's substantial rights.
Next, although a prospective juror indicated that she knew Anderson from her employment at the county jail, she did not provide any detail stating when she had contact with him at the jail. Further, that prospective juror did not serve on the jury. To the extent that the prospective juror's response may have implied that Anderson had been a jail inmate, the jury was already aware that Anderson had a prior felony conviction, which would explain why he would have been incarcerated. Moreover, Anderson's lawyer stipulated to the use of Anderson's OTIS profile as an exhibit, as well as the testimony regarding the 2014 jail calls between Anderson and Milian. This was part of the defense strategy of showing Anderson's association with Milian and how Milian had forced or coerced Anderson into confessing to a crime he did not commit. In addition, the trial court protected Anderson's substantial rights by instructing the jury that it was not to consider any of Anderson's prior criminal history as evidence that he committed the instant offenses, with the exception of the crime of felon in possession of a firearm. "Jurors are presumed to follow their instructions, and it is presumed that instructions cure most errors." People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).
VI. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Anderson next argues that the evidence at trial was insufficient to establish his identity as the person who robbed Surisetty. A challenge to the sufficiency of the evidence is reviewed de novo. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). This Court must review the evidence in a light most favorable to the prosecution and determine whether the jury could have found each element of the charged crimes proved beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of [a] crime." People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
B. ANALYSIS
Identity is an essential element in a criminal prosecution, People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976), and the prosecution must prove the identity of the defendant as the perpetrator of a charged offense beyond a reasonable doubt. People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967). Positive identification by a witness or circumstantial evidence and reasonable inferences arising from it may be sufficient to support a conviction of a crime. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). The credibility of identification testimony is for the trier of fact to resolve and this Court will not resolve it anew. Id.
The prosecutor presented evidence that Anderson confessed to committing the robbery. Although Anderson claimed that he confessed only because he was threatened by Milian, the credibility of the explanation was for the jury to decide. Moreover, the investigating police officer testified that, during the confession, Anderson revealed special knowledge of the crime that only the actual robber would know, such as the fact that the Surisetty's daughter was home and that the stolen necklaces had pendants attached to them. Anderson's knowledge of these details enhanced the reliability of his confession. Further, Surisetty positively identified Anderson as the man who robbed him. Although Anderson argues that the jury should not have believed the Surisetty's identification, the credibility of that testimony was for the jury to determine. Id. Other evidence linking Anderson to the robbery included the fact that the Surisetty's cell phone was found in a dumpster near Anderson's home. Viewed in the light most favorable to the prosecution, the evidence was sufficient to establish Anderson's identity as the person who robbed Surisetty at gunpoint.
VII. SPEEDY TRIAL AND THE 180-DAY RULE
A. STANDARD OF REVIEW
Anderson next argues that the trial court erred when it failed to dismiss this case for violation of his constitutional right to a speedy trial and violation of the statutory 180-day rule. With respect to Anderson's speedy trial claim, the determination of whether he was denied a speedy trial is a mixed question of fact and law. People v Waclawski, 286 Mich App 634, 664; 780 NW2d 321 (2009). The trial court's "factual findings are reviewed for clear error, while the constitutional issue is a question of law subject to review de novo." Id.
B. ANALYSIS
1. 180-DAY RULE
Although Anderson was a parolee at the time of the offenses, he was not held within a state penal institution pending trial, but rather was confined in the county jail. Therefore, the 180-day rule was not applicable in this case. People v McLaughlin, 258 Mich App 635, 643-644; 672 NW2d 860 (2003).
2. SPEEDY TRIAL
The parties agree that the delay between Anderson's arrest and trial was 207 days. Because the delay was under 18 months, Anderson had the burden of showing that he was prejudiced by the delay. Waclawski, 286 Mich App at 665. A defendant can experience two types of prejudice while awaiting trial. People v Williams, 475 Mich 245, 264; 716 NW2d 208 (2006). Prejudice to the person results when pretrial incarceration deprives an accused of many civil liberties, and prejudice to the defense occurs when the defense might be prejudiced by the delay. Id. The latter prejudice is the more crucial in assessing a speedy trial claim. Id. A general allegation of prejudice caused by delay, such as the unspecified loss of evidence or memory, or financial burden, is insufficient to establish that a defendant was denied his right to a speedy trial. People v Gilmore, 222 Mich App 442, 462; 564 NW2d 158 (1997). Anxiety alone is insufficient to establish a violation of the right to a speedy trial. Id. at 461-462. Here, Anderson alleges only a generalized, unspecified inability to gather evidence in his favor and "the natural loss of the recollection of events," and he asserts that he suffered from anxiety and depression. These unspecific allegations are insufficient to warrant relief. Accordingly, he has not established that his right to a speedy trial was violated.
VIII. DEFENDANT'S STANDARD 4 BRIEF
A. STANDARD OF REVIEW
In a pro se supplemental brief, filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, Anderson argues that a new trial is required because he was denied the effective assistance of a lawyer. "A claim of ineffective assistance of counsel should be raised by a motion for a new trial or an evidentiary hearing." People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). Because Anderson did not raise his claims in a motion for a new trial or request for an evidentiary hearing below, our review of this issue is limited to errors apparent from the record. Id. Whether a person has been denied the effective assistance of a lawyer is a mixed question of fact and constitutional law. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
B. ANALYSIS
To establish that his trial lawyer provided ineffective assistance, a defendant must show that: (1) his lawyer's representation fell below an objective standard of reasonableness; and (2) but for his lawyer's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Vaughn, 491 Mich at 670. This Court presumes that a defendant's lawyer rendered effective assistance and exercised reasonable professional judgment in all significant decisions. Id. at 670. The defendant must "overcome the strong presumption that [his lawyer's] performance was born from a sound trial strategy." People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). "Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim." People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
Anderson argues that his lawyer was ineffective for not moving to exclude his confession on the basis that it was involuntary. A confession is admissible if the totality of the circumstances indicates that it was freely and voluntarily given. People v Shipley, 256 Mich App 367, 373-374; 662 NW2d 856 (2003). To evaluate voluntariness, courts examine a variety of factors, including the accused's age, education, intelligence, and prior experience with police. Id. at 373. Courts also evaluate the accused's injuries, if any, health, level of intoxication, and use of drugs when making the statement. Id. at 373-374. Courts then evaluate the police's conduct, including whether the police provided the accused with information about his constitutional rights, including his Miranda rights. Id. Then, courts consider "the repeated and prolonged nature of the questioning," "the length of the detention of the accused before he gave the statement in question," and "whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession . . . ." Id. (quotations and citations omitted). Finally, courts consider whether the police deprived the accused of food, sleep, or medical attention, promised the accused leniency, physically abused the accused, threatened the accused with abuse. Id. at 374. Police misrepresentation of evidence does not "make an otherwise voluntary statement involuntary." People v Givans, 227 Mich App 113, 122-123; 575 NW2d 84 (1997).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). --------
Anderson does not explain why his confession should be deemed involuntary. His interview lasted approximately two hours, which does not support a finding of prolonged interrogation. Anderson does not assert that his personal circumstances, such as his age, intoxication, or intelligence, rendered him vulnerable. Nor does he assert that he was denied sleep, food, or medicine, or that he was physically or mentally abused. Although Anderson asserts that he was coerced or manipulated, he has not identified any factual support for these claims, and has not identified any other evidence supporting his claim that his confession was involuntary. Accordingly, he cannot establish that his lawyer was ineffective in this regard.
Anderson also faults his lawyer for not challenging both the photographic array and Surisetty's in-court identification. An identification procedure violates a defendant's right to due process when it is "unnecessarily suggestive and conducive to irreparable misidentification." People v Williams, 244 Mich App 533, 542, 624 NW2d 575 (2001). "In order to challenge an identification on the basis of lack of due process, 'a defendant must show that the pretrial identification procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification.' " Id., quoting People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993) (opinion by GRIFFIN, J). Anderson claims that the photographic array was tainted, but he does not explain how it was tainted. In addition, Anderson argues that his lawyer was absent from the photographic showup, but absent unusual circumstances not present here, the presence of a defendant's lawyer is not necessary when a photographic lineup is conducted unless the defendant was in custody at that time and charged. Kurylczyk, 443 Mich at 302. Consequently, Anderson has not provided any basis for concluding that it was objectively unreasonable for his lawyer not to raise this issue or to show that there is a reasonable probability that a motion to suppress Surisetty's pretrial and in-court identifications would have been successful.
We also reject Anderson's claims that his lawyer was ineffective for deciding not to challenge the jury venire on the basis that it was exposed to information identifying Anderson as a jail inmate, or for introducing the jail calls and call log between Anderson and Milian. The defense strategy was to argue that Milian, whom Anderson met in jail, coerced Anderson into falsely confessing to the robbery. Anderson's lawyer used the jail calls to establish that their communications did not involve any discussions about a planned robbery. On this record, Anderson has not overcome the presumption of reasonable trial strategy. The fact that his lawyer's strategy may not have worked does not constitute ineffective assistance. People v Stewart, 219 Mich App 38, 42; 555 NW2d 715 (1996). In addition, given Anderson's choice of defense, the jury would have received the same underlying information through his testimony. Moreover, considering the defense strategy, Anderson cannot show a reasonable probability that, but for the introduction of the potential juror's statements or the call records, the outcome of trial would have been different.
The record also does not support Anderson's argument that it was objectively unreasonable for his lawyer to play the pawn shop video and to question the investigating officer about it. As discussed earlier, Anderson's lawyer used the video to argue that the African-American man depicted in the video with Milian was not Anderson, and to thus support the defense argument that this unidentified man was the actual robber. The questioning of the officer fell squarely within this strategy, as did the decision to play the video.
Next, Anderson asserts that his lawyer failed to impeach witnesses at trial, failed to challenge perjured testimony, and "failed to make other strategic decisions at trial." Similarly, he argues that his lawyer failed to meet with him enough to adequately prepare for trial. However, Anderson has not established any factual support for these conclusory assertions. See Carbin, 463 Mich at 600. The record discloses that his lawyer was aware of the issues and evidence at trial and effectively cross-examined witnesses. In particular, his lawyer highlighted evidence that the Surisetty's description of the robber's height did not match Anderson's height, that Surisetty expressed some uncertainty with his initial identification of Anderson as the robber, and that Anderson was not the man with Milian when Milian sold the Surisetty's jewelry. Because the record does not support Anderson's claim that his lawyer was unprepared for trial, Anderson's related argument that his lawyer was ineffective for not adequately meeting with Anderson before trial also fails. See People v Payne, 285 Mich App 181, 189; 774 NW2d 714, 721 (2009).
Anderson also argues that his lawyer was ineffective for not negotiating a satisfactory plea agreement, but he provides no factual support for a finding that the prosecution was willing to make a plea offer or that he reasonably would have accepted a particular offer had one been proffered.
Anderson's argument that his lawyer was ineffective for failing to assert Anderson's right to a speedy trial is belied by the fact that his lawyer did so move. Moreover, as previously explained, Anderson has not shown he was entitled to relief due to a speedy trial violation.
Finally, Anderson argues that his lawyer was ineffective for not moving in limine to compel the prosecution to use "a general felony or unlawfully driving away an automobile" instead of Anderson's CCW and second-degree child abuse convictions to prove the felon-in-possession charge. Anderson's lawyer made a late motion in this respect, but the trial court denied it because it was untimely. To the extent that his lawyer erred by not timely raising this issue, Anderson cannot show that there is a reasonable probability that the outcome of the trial would have been different had his lawyer stipulated to the fact of a prior felony. The prosecutor presented strong evidence of Anderson's guilt, including Anderson's confession to the crime that was supported by his knowledge of details that only the actual robber would have known. In addition, Surisetty identified Anderson as the robber, and other direct and circumstantial evidence linked him to the robbery and later sale of the stolen jewelry. In addition, while Anderson focuses on the fact that one juror wrote a note to the trial court expressing concern at his ability to remain objective once he learned about Anderson's prior child abuse conviction, the juror stated on the record that he could decide the case on the facts presented and did not ultimately participate in deliberations. Finally, the trial court also instructed the jurors that they were not to use the fact of Anderson's prior convictions for anything other than resolving the felon-in-possession charge, which further weighs against a finding of prejudice. See Mahone, 294 Mich App at 212.
For the foregoing reasons, we reject Anderson's claims that he was denied the effective assistance of a lawyer at trial.
Affirmed.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra