                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 12, 2016
               Plaintiff-Appellee,

v                                                                   No. 326755
                                                                    Oakland Circuit Court
WALLACE EDGAR MOORE,                                                LC No. 2014-252180-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals his jury convictions of armed robbery, MCL 750.529, and assault with
intent to do great bodily harm less than murder, MCL 750.84. The court sentenced defendant to
25 to 75 years’ imprisonment for each conviction. For the reasons provided below, we affirm.

        At trial, Larry Lamb testified that he was alone in the annex building of the Center Stage
homeless shelter in Pontiac on April 13, 2014, when defendant approached him from behind and
hit him multiple times with an aluminum baseball bat. Lamb also said that, after he was
incapacitated, defendant took $98 from his pocket. Though Lamb acknowledged that he did not
see defendant before the first blow, he was adamant that he saw defendant thereafter and was
certain defendant was the attacker. Three individuals testified that after the attack, Lamb told
them that defendant was the one who was responsible.

        On appeal, defendant claims that he was denied his constitutional right to a fair trial
because the testimony concerning Lamb’s out-of-court statements was hearsay and was not
properly admissible under any of the exceptions provided by the rules of evidence. We disagree.
Defendant never objected to the admission of the evidence and did not raise a due-process
concern at the trial court. Accordingly, we review this unpreserved claim for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).

        The Fourteenth Amendment to the United States Constitution provides, in relevant part,
that no State shall “deprive any person of life, liberty, or property, without due process of law.”
US Const, Am XIV. Thus, the question is whether the trial court plainly failed to conform to due
process of law and legal standards for a fair trial. We answer the question in the negative
because it is evident that the evidence at issue was properly admissible under the applicable rules
of evidence.
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        A statement that falls within the definition of hearsay may not be introduced at trial
unless it is deemed admissible under one of the exceptions to the general rule against hearsay.
MRE 802; People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013). “Hearsay” is defined as
“a statement, other than the one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” MRE 801(c). However, MRE
801(d) sets forth several types of out-of-court statements that are by definition not hearsay. We
agree with defendant that the statements at issue do not fall under the definition provided by
MRE 801(d)(1)(B)1 because there was no charge at trial of “recent fabrication or improper
influence or motive” on the part of Lamb.

        However, defendant fails to address MRE 801(d)(1)(C), which includes in its definition
of nonhearsay statements, those “of identification of a person made after perceiving the person.”
The rule does not make all such statements nonhearsay. The statements, which fall within the
rule, are those in which the statement’s declarant testifies at trial and is subject to cross-
examination. MRE 801(d)(1); People v Malone, 445 Mich 369, 375; 518 NW2d 418 (1994).

        Here, Amanda White, David Coleman, and Officer Daniel Vasquez each testified that
Lamb told them that “Gater” was the person he saw assault him. White and Coleman both had
personal knowledge that defendant was commonly known as “Gater” and referred to him by that
name at trial. Officer Vasquez also confirmed that “Gater” was one of defendant’s known
aliases. Thus, because the challenged statements were statements of identification made by a
declarant who testified at trial and was subject to cross-examination, defendant has failed to
show how it was plainly erroneous to have those statements admitted as substantive nonhearsay
under MRE 801(d)(1)(C). Accordingly, having failed to establish plain error, defendant is not
entitled to any relief.

        Furthermore, the admissibility of the statements was not affected by defense counsel’s
suggestion that Lamb did not have an opportunity to clearly perceive his attacker. Such concerns
go to the weight of the evidence, not its admissibility, and it was for the jury to decide how much
weight to give it. We note that the jury did not have to make this determination in a vacuum.
Instead, it had the benefit of the cross-examination of both (1) Lamb, the declarant, see MRE
801(d)(1) (requiring the declarant to have testified and be subject to cross-examination for the
declarant’s out-of-court statement of identification to be nonhearsay); Malone, 445 Mich at 381-
382, and (2) White, Coleman, and Officer Vasquez, who testified to the circumstances
surrounding Lamb’s identification, see Malone, 445 Mich at 385. Here, Lamb continuously
maintained during his direct and cross-examination testimony that he saw defendant. The jury’s
ultimate conviction of defendant demonstrates that it found Lamb’s identification, as well as the
circumstances surrounding his out-of-court statements, credible.

      Because the challenged statements by Lamb, which were offered by Officer Vasquez,
White, and Coleman, were admissible nonhearsay under MRE 801(d)(1)(C), defendant’s


1
  MRE 801(d)(1)(B) defines as nonhearsay, out-of-court statements that are “consistent with the
declarant’s testimony and is offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive.”


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contention that the statements were not admissible under any hearsay exception is a moot
argument.2 Regardless, assuming that the statements in question were hearsay, defendant has
failed to show how they would not fall under the excited utterance exception under MRE 803(2).

        Pursuant to MRE 803(2), “a statement will not be excluded by the hearsay rule if it is ‘[a]
statement relating to a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition.’ ” People v Barrett, 480 Mich 125, 131; 747
NW2d 797 (2008), quoting MRE 803(2). The policy for admitting excited utterances is that,
because of the stress of the startling event, the declarant will not engage in conscious reflection
before making a statement, and therefore lacks the capacity to fabricate. People v Walker, 265
Mich App 530, 534; 697 NW2d 159 (2005), vacated in part on other grounds by 477 Mich 856
(2006). Accordingly, passage of time between the event and the statement is an important factor,
but it is not dispositive. Id. “Physical factors, such as shock, unconsciousness, or pain, may
prolong the period in which the risk of fabrication is reduced to an acceptable minimum.”
People v Smith, 456 Mich 543, 552; 581 NW2d 654 (1998) (quotation marks and citation
omitted).

       When Lamb told Officer Vasquez, White, and Coleman that defendant was the person he
saw attack him, the record shows that he was still under the stress of having been brutally beaten
with an aluminum baseball bat. Lamb testified that he was incapacitated by the attack, and said,
“I don’t even know how I got out the building, really, after I was damaged.” White found Lamb
outside the annex and immediately took him to the Center Stage kitchen area and called the
police. While she was still on the phone with the 911 operator, Coleman came into the kitchen
and saw Lamb lying on the floor with blood everywhere. As Coleman picked up Lamb’s teeth
from the floor, he observed that Lamb could hardly talk. However, when White continued to ask
him what happened, Lamb indicated that defendant was the person who attacked him. Officer
Vasquez testified that when he arrived, Lamb was still bleeding profusely and was hard to
understand, though he was “coherent.” Lamb’s injuries were so severe that he was placed in a
medically-induced coma to avoid the risk of bleeding in his brain. There can be little doubt that
Lamb was suffering extreme pain when he identified defendant as his attacker.

        Admittedly, it is unclear from the record exactly how much time passed between the
assault and Lamb’s out-of-court statements. However, it can be inferred that the assault took
place sometime after Coleman last saw defendant on the premises around midnight.
Additionally, White testified that several homeless people started lining up about an hour before
she was done cleaning, purportedly based on defendant’s direction. Lamb identified defendant
as his attacker shortly after White initiated the 911 call at 2:58 a.m. Thus, at most, two to three
hours may have elapsed between the startling event and Lamb’s statements of identification. In
light of the physical shock and incapacitation Lamb was suffering, the possible three-hour



2
  Hearsay exceptions are primarily covered in MRE 803 and 804. Those rules cover statements
that are hearsay but nonetheless are admissible because they are inherently reliable. As already
discussed, the statements at issue are, by definition, not hearsay and therefore these hearsay
exceptions simply do not apply.


                                                -3-
interval between the assault and his statements does not preclude their admission under the
excited utterance exception. See, e.g., id. at 552-553 (finding continuing stress after an interval
of over nine hours); Walker, 265 Mich App at 534-535 (finding sufficient indicia of continued
stress after a delay in excess of two hours). Therefore, even if the challenged statements were
hearsay, defendant has failed to show how their admission was plainly erroneous under MRE
803(2).

        Defendant also argues that he was denied the effective assistance of counsel because
defense counsel did not object when the prosecutor elicited testimony regarding Lamb’s out-of-
court statements from Officer Vasquez, White, and Coleman. Ineffective assistance of counsel
claims present a mixed question of fact and constitutional law. People v Jordan, 275 Mich App
659, 667; 739 NW2d 706 (2007). Findings of fact are generally reviewed for clear error, and
rulings on questions of constitutional law are reviewed de novo. Id. However, when the
defendant’s ineffective assistance of counsel claim was not preserved at the trial court level, as
was the case here, this Court’s review is limited to errors that are apparent from the record on
appeal. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).

       To establish a claim of ineffective assistance of counsel, the defendant must show that (1)
counsel’s representation at the proceeding “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 proceeding would have been different. People v Vaughn, 491 Mich 642, 670;
821 NW2d 288 (2012), citing Strickland v Washington, 466 US 668, 688-694; 104 S Ct 2052; 80
L Ed 2d 674 (1984).

        Here, as already discussed, the challenged testimony did not constitute inadmissible
hearsay. Rather, it was not hearsay as a prior statement of identification pursuant to MRE
801(d)(1)(C). Accordingly, any objection to the testimony on hearsay grounds would have been
futile, and “[f]ailing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120, 125 (2010).

       Affirmed.



                                                            /s/ Michael J. Riordan
                                                            /s/ Henry William Saad
                                                            /s/ Michael J. Kelly




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