                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       May 10, 2018
               Plaintiff-Appellee,

v                                                                      No. 335609
                                                                       Wayne Circuit Court
ERNEST MEQUEL GRAHAM,                                                  LC No. 15-008121-01-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions on five counts of armed robbery, MCL
750.529, possession of a firearm by a person convicted of a felony (felon in possession of a
firearm), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-
firearm) (third offense), MCL 750.227b. We affirm.

        In August 2015, defendant robbed at gunpoint five men in the parking lot of a Coney
Island restaurant in Detroit. Two of the victims later picked defendant out of a pretrial lineup
and were certain that defendant was the armed robber.

       Defendant argues that the trial court erred in failing to suppress the identification
evidence resulting from the pretrial lineup. He contends that the pretrial lineup was unduly
suggestive because he was the only man in his forties and was nine years older than the next
oldest man. We disagree.

       We review a trial court’s decision to admit identification evidence using the clear error
standard. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). Clear error is present
if we are “left with the definite and firm conviction that a mistake has been made.” Id.
Questions of law related to a motion to suppress are reviewed de novo. People v McDade, 301
Mich App 343, 356; 836 NW2d 266 (2013).

        An unduly suggestive identification is one that is so unreliable that it renders a trial
unfair, denying the defendant due process. People v Gray, 457 Mich 107, 122 n 18; 577 NW2d
92 (1998) (citation omitted). The 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.” Kurylczyk, 443 Mich at 302. Generally, “physical differences between a
suspect and other lineup participants do not, in and of themselves, constitute impermissible

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suggestiveness[.]” People v Benson, 180 Mich App 433, 438; 447 NW2d 755 (1989), rev’d in
part on other grounds 434 Mich 903 (1990). Physical differences amongst those in a lineup
       are significant only to the extent they are apparent to the witness and substantially
       distinguish defendant from the other participants in the line-up . . . . It is then that
       there exists a substantial likelihood that the differences among line-up
       participants, rather than recognition of defendant, was the basis of the witness’[s]
       identification. [People v James, 184 Mich App 457, 466; 458 NW2d 911 (1990),
       vacated on other grounds 437 Mich 988 (1991).]

        Defendant argues that the lineup was impermissibly suggestive because he was the oldest
man present. Defendant was 43 years old, whereas the other men in the lineup ranged from 20 to
34 years old.       However, physical differences do not alone constitute impermissible
suggestiveness. See Benson, 180 Mich App at 438. There is a line of cases from this Court
finding that a lineup is not unduly suggestive only because a defendant had a unique physical
feature that others in the array did not share.1 Following that line of cases, the lineup was not
unduly suggestive solely because defendant was the oldest individual therein.

        The other men in the lineup looked substantially similar to defendant. They were of
similar height, weight, and hair style. They were all the same race. The police even had
defendant change out of his “beater” into a t-shirt so that he would be dressed similarly to the
others. Based on the photographs of the men in the array, defendant did not look significantly
different than any of the other men. Additionally none of the victims testified that defendant
stood out because of any sort of physical difference. Rather, Jemelle Jones, one of the victims,
simply testified that some of the men in the lineup were of various heights and various skin
tones. Because physical differences are significant only to the extent that they are apparent to
witnesses and substantially distinguish a defendant from others in a lineup, the age difference in
this case is not significant. See James, 184 Mich App at 466. There is no substantial likelihood
that defendant’s age, rather than genuine recognition, caused victims Jemelle and Joseph Meeks
to identify defendant as the man who robbed them. See id.

       As the trial court noted, the variety of ages displayed at the lineup was reasonable. The
ages of the other men in the array ranged from 20 to mid-30s. While Deericka Paramore and
Jamal Jones had described the perpetrator as late 30s or early 40s, Meeks and Jemelle provided
no age range in their descriptions of the perpetrator. In light of the victims’ variety of
descriptions, having younger men at the lineup was acceptable.


1
  See People v Holmes, 132 Mich App 730, 746; 349 NW2d 230 (1984) (finding that the lineup
was not impermissibly suggestive when the defendant was the heaviest and second tallest of
array); People v Horton, 98 Mich App 62, 67-68; 296 NW2d 184 (1980) (finding that the lineup
was not impermissibly suggestive when there were age and height differences between the
defendant and the others, and the defendant was the only individual with facial scarring); People
v Hughes, 24 Mich App 223, 225; 180 NW2d 66 (1970) (finding that the lineup was not
impermissibly suggestive when the defendant was the only individual with both a mustache and
a goatee).


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        Defendant also notes that, whereas there is normally video or photographic evidence of
the lineup, there is neither in this case. Two cameras at the police station were inoperable at the
time. However, while the lack of photographic evidence may lend to some vague suspicion,
there is no evidence of police misconduct at the lineup. All of the victims were asked various
questions about police misconduct, i.e., whether the police told them to choose a certain person.
None of the victims reported any questionable conduct. Accordingly, the trial court did not
clearly err in failing to suppress the identification evidence resulting from the pretrial lineup.

        Next, defendant argues that his trial counsel was ineffective because, though he
interviewed multiple potential alibi witnesses, he chose not to call any to testify at trial. We
disagree. Because defendant did not move in the trial court for a new trial or an evidentiary
hearing, our review is for errors apparent on the record. See People v Nix, 301 Mich App 195,
207; 836 NW2d 224 (2013).

        To establish a claim of ineffective assistance of counsel, a defendant must show both that
his counsel’s performance was objectively unreasonable in light of prevailing professional
norms, and that defendant was prejudiced as a result of his counsel’s inadequate performance.
People v Walker, 497 Mich 894, 895; 855 NW2d 744 (2014), citing People v Carbin, 463 Mich
590, 599-600; 623 NW2d 884 (2001). A defendant is prejudiced if there is a reasonable
probability that, but for his counsel’s performance, the proceedings would have rendered a
different result. People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014).

        The defendant bears a heavy burden to show that the assistance afforded him was
ineffective. People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012). Part of this burden
is establishing a factual predicate for the claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999). And the defendant must overcome a strong presumption that counsel’s actions were
based on reasonable trial strategy. People v Cline, 276 Mich App 634, 637; 741 NW2d 563
(2007). “We will not substitute our judgment for that of counsel on matters of trial strategy, nor
will we use the benefit of hindsight when assessing counsel’s competence.” People v Unger,
278 Mich App 210, 242-243; 749 NW2d 272 (2008).

        In this case, defendant has failed to establish that his trial counsel’s performance fell
below an objective standard of reasonableness. According to the lower court record, defense
counsel did not call any alibi witnesses and defendant’s mother was unwilling to speak with the
officer-in-charge. Defendant’s mother’s unwillingness to speak to the officer-in-charge supports
defense counsel’s choice not to call her to testify. And there is no insight from the lower court
record as to why counsel chose not to call other witnesses. Whether to call a witness to testify is
presumed to be a matter of trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d
308 (2004). There are many reasons why defense counsel may have chosen not to call
defendant’s “potential” alibi witnesses and there is no evidence in the trial court record to
overcome the strong presumption that defense counsel’s actions were the result of sound trial
strategy. See Cline, 276 Mich App at 637.

        Further, based on the evidence in the trial court record, defendant cannot establish that he
was prejudiced by defense counsel’s actions. Failing to call a witness constitutes ineffective
assistance of counsel only if it deprived the defendant of a substantial defense. Dixon, 263 Mich
App at 398. A substantial defense is one that might have changed the trial outcome. In re Ayres,

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239 Mich App 8, 22; 608 NW2d 132 (1999). Even had defense counsel called one or more alibi
witnesses, there is no evidence to suggest that the testimony they offered would be enough to
overcome the evidence against defendant, including the eyewitness identifications, the
connection between the minivan in which defendant was a passenger and multiple armed
robberies, and defendant’s attempted flight from the police. See People v Goodin, 257 Mich
App 425, 432; 668 NW2d 392 (2003).

       Affirmed.



                                                         /s/ Mark J. Cavanagh
                                                         /s/ Cynthia Diane Stephens
                                                         /s/ Brock A. Swartzle




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