                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 20, 2018
              Plaintiff-Appellee,

v                                                                 No. 335449
                                                                  Macomb Circuit Court
MACK JOHNSON HOWELL,                                              LC No. 2015-003353-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

       A jury convicted defendant of armed robbery, MCL 750.529, for a late-night holdup at a
convenience store. On appeal, defendant challenges the admission of the victim’s identification
of him from a photographic lineup. We discern no error and affirm.

                                      I. BACKGROUND

        In the early morning hours of April 3, 2014, a masked bandit robbed a 7-Eleven store in
Eastpointe. Roselyn Gaston was working alone when the man entered, garbed all in black. He
had “a box over his hand,” which he claimed covered a gun. The man demanded that Gaston
relinquish the cash in the register.

        Gaston testified that she could see the “area of [the robber’s] eyes.” When his mask
shifted, Gaston was also able to see part of the robber’s nose. Gaston described the robber as a
dark-skinned black male. The robber was “a few inches” taller than Gaston, who stood at five
feet, four inches. Gaston described that he had a medium build and was around 180 pounds.
The robber touched the cash register till when Gaston removed it from the drawer, but officers
were unable to secure usable fingerprints. The robber dropped the box that had been covering
his hand, but officers were also unable to gather usable identifying evidence from that item.

       The store manager reviewed footage from exterior security cameras. He noticed a man
“hiding himself” near “the dumpster and wall.” Following the robbery, a police dog alerted to a
paper bag containing a beer can near the area in question. Five months later, DNA on the can
was matched to defendant. A straw also found inside the bag, however, carried DNA from an
unidentified female.



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       After the DNA analysis was completed, a detective presented a photographic array to
Gaston. Gaston first “pick[ed] out one incorrect person.” Gaston testified that the detective
queried, “Are you sure of that person?” Gaston indicated that she was not certain “and then
proceeded to take my hands and put my hands over the face so that I could see just the eyes and
what I had seen and picked out number one”: defendant. Gaston claimed she focused “on what I
had seen back when the robbery had happened” and was able to identify defendant by
“remembering the eyes because that was something that I could never forget.” “One eye
look[ed] a little lower than the other.” Gaston “was 100 percent sure” about her identification.

        Eastpointe police detective Matthew Hambright testified that he arranged the
photographic lineup after DNA collected near the scene was matched to defendant. Hambright
uncovered information that defendant was 5½ feet tall and had weighed between 140 and 205
pounds over the years. Hambright described that Gaston quickly identified an individual in the
lineup, asserting, “I think that’s him.” Hambright asked, “Are you sure?,” which he claimed “is
something I say anytime anybody identifies somebody.” Gaston indicated that she was not
actually certain and Hambright instructed her to “review all the photographs” and “[t]ake some
time with it.” Gaston then “took her hands and covered the top and bottom of” her first pick’s
face before declaring that he was not the robber. After repeating this process with the other
photographs in the lineup, Gaston identified defendant. Gaston told Hambright that she was “a
hundred percent” certain.

       Defendant’s fiancée and her daughter provided an alibi for defendant on the night in
question. Defendant also presented an expert to testify regarding the weakness of Gaston’s
eyewitness identification. The jury rejected these defenses and convicted defendant as charged.

                                          II. ANALYSIS

        Defendant now contends that the admission of this evidence denied him a fair trial. As
defendant failed to request an evidentiary hearing to consider the suggestiveness of the
photographic lineup or otherwise object to the admission of this evidence, his challenge is
unpreserved. People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). Generally,
we would review the trial court’s ruling on a motion to suppress, as well as its underlying factual
findings, for clear error. People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013).
However, we review unpreserved challenges for plain error affecting the defendant’s substantial
rights and grant relief only when the defendant is actually innocent or where the alleged error
seriously affected the fairness, integrity, or public reputation of the judicial proceedings. People
v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).

        Photographic identification procedures violate a defendant’s due process rights when they
are so “impermissibly suggestive” as to “give[] rise to a substantial likelihood of
misidentification.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998). “The fairness of
an identification procedure is evaluated in light of the total circumstances. . . .” People v
Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002). Defendant contends that the lineup in
this case was impermissibly suggestive because the pictures should have been cropped to show
only that portion of the face observed by Gaston during the robbery. Defendant further contends
that Detective Hambright tainted the identification by implying to Gaston that she initially


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selected the wrong individual. These errors were highly prejudicial, defendant argues, given the
weak basis for Gaston’s identification.

         A photographic array is not deemed suggestive if “it contains some photographs that are
fairly representative of the defendant’s physical features and thus sufficient to reasonably test the
identification.” People v Kurylczyk, 443 Mich 289, 304; 505 NW2d 528 (1993) (quotations
omitted). Defendant has never claimed that the photographs used in the array were so dissimilar
as to render the lineup impermissibly suggestive. Instead, defendant contends that the police
should have cropped the photos and showed Gaston only the area around the array members’
eyes, as this was all she saw of the robber. Defendant has provided absolutely no legal support
requiring the use of photoshopped images in an array. In any event, Gaston independently
created this effect by using her hands to limit her view of the men’s faces in the photographs.
There is no record indication that Gaston was prejudicially swayed by seeing the entire face of
the individuals in the lineup.

        Defendant further contends that Gaston’s identification was influenced by Detective
Hambright’s commentary during the lineup. Specifically, defendant asserts that Hambright
suggested to Gaston that her first selection was “incorrect” by inquiring whether she was certain
of her choice. As noted by our Supreme Court in People v Anderson, 389 Mich 155, 216; 205
NW2d 461 (1973):

               Suggestion may be implanted deliberately by over-zealous investigators,
       by a hint, impressive manner, gesture, tone of voice, facial expression or in other
       ways. The rare case of intentional suggestion, however, is not our concern here
       but rather we are concerned with the probability of innocent suggestive influences
       from a host of sources. It would serve no useful purpose here and there is not
       sufficient space to catalog the many forms of subtle, unintentional suggestive
       influences. . . . The importance of the existence of so many possible forms of
       unintentional suggestion lies in the fact that we are peculiarly susceptible to it and
       the fact that it is an unconscious process so that we are unable to detect its
       influence while it operates.

       We discern no improper influence on Hambright’s part. At the lineup’s onset, Hambright
read Gaston a standardized disclaimer:

              You’ll be asked to look at a group of photographs. The fact that the
       photographs are shown to you should not influence your judgment. You should
       not conclude or guess that the photographs contain the picture of the person who
       committed the crime. You are not obliged t[o] identify anyone. It is just as
       important to free innocent persons from suspicion as to identify guilty parties.

Hambright did not suggest otherwise during the lineup. Although Hambright asked Gaston if
she was certain of her selection after she identified the person in position 5, he asked the same
question after Gaston reconsidered and identified defendant. Accordingly, defendant’s claim
that the lineup procedure employed in this case was impermissibly suggestive and therefore
constitutionally defective is without merit.


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       Defendant devotes a significant portion of his appellate argument to describing that
Gaston’s identification of defendant “could not be weaker and less reliable.” Defendant
emphasizes that Gaston had no “independent basis” for identifying defendant during the lineup
that was not conducted until five months after Gaston’s brief encounter with the ski-mask-clad
robber. Defendant also notes that Gaston’s description of the robber’s height and weight evolved
over time as her memory was tested and that she first identified another individual in the
photographic array. However, whether an eyewitness has an independent basis for identifying a
suspect only comes into play if the identification procedure is deemed impermissibly suggestive.
See Gray, 457 Mich at 115; People v Kachar, 400 Mich 78, 95-97; 252 NW2d 807 (1977);
People v Colon, 233 Mich App 295, 304-305; 591 NW2d 692 (1998). Under these
circumstances, defendant’s challenges go to the credibility of Gaston’s identification, not its
admissibility. “The credibility of identification testimony is a question for the trier of fact,”
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000), not a preliminary consideration
for admissibility. Accordingly, the court did not err in admitting Gaston’s identification of
defendant.

         In the alternative, defendant contends that his trial counsel was ineffective for failing to
object or move for the preclusion of Gaston’s identification. Because defendant failed to raise
this issue in the trial court and this Court denied his motion to remand for an evidentiary hearing,
People v Howell, unpublished order of the Court of Appeals, entered March 9, 2017 (Docket No.
335449), our review is limited to errors apparent on the existing record. See People v Horn, 279
Mich App 31, 37-38; 755 NW2d 212 (2008).

        “[I]t has long been recognized that the right to counsel is the right to the effective
assistance of counsel.” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657
(1984), quoting McMann v Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763
(1970). In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984),
the United States Supreme Court held that a convicted defendant’s claim of ineffective assistance
of counsel includes two components: “First, the defendant must show that counsel’s performance
was deficient. . . . Second, the defendant must show that the deficient performance prejudiced
the defense.” To establish the first component, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. People v Solomonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to
the prejudice aspect, the defendant must demonstrate a reasonable probability that but for
counsel’s errors the result of the proceedings would have differed. Id. at 663-664. The
defendant must overcome the strong presumptions that his “counsel’s conduct falls within the
wide range of professional assistance,” and that his counsel’s actions represented “sound trial
strategy.” Strickland, 466 US at 689 (quotation marks and citation omitted).

        As noted, the identification procedure used in this matter was not impermissibly
suggestive and therefore was admissible at trial. Counsel cannot be faulted for failing to bring a
futile motion to exclude this evidence. People v Buie, 298 Mich App 50, 66; 825 NW2d 361,
372 (2012). And defense counsel vigorously attacked the strength and credibility of Gaston’s
identification of defendant. Counsel presented an expert witness to explain how the passage of
time and Gaston’s brief limited view of the robber while under severe emotional strain reduced
the likelihood that Gaston could identify the perpetrator. Counsel also emphasized these points


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on cross-examination of Gaston. This was sound strategy. Accordingly, defendant cannot
establish that he is entitled to a new trial.

      We affirm.



                                                    /s/ Elizabeth L. Gleicher
                                                    /s/ Stephen L. Borrello
                                                    /s/ Brock A. Swartzle




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