                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 30, 2016
               Plaintiff-Appellee,

v                                                                    No. 325977
                                                                     Wayne Circuit Court
KENYAN ALFONSO BOOKER,                                               LC No. 14-006851-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions on five counts of armed robbery, MCL
750.529, possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b, and felon in possession of a firearm, MCL 750.224f. We affirm, but remand for
further sentencing proceedings consistent with this opinion.

        Defendant robbed five people at a gas station in Detroit. The five people were at the gas
station because their car got a flat tire while they were driving on Interstate 75. Defendant and
his accomplice were seen standing outside of the gas station store and they were dressed all in
black. Defendant was holding a gun to his side. As soon as defendant’s accomplice began
approaching them, the five people immediately got back into their car. Then defendant
approached, stood in front of the vehicle, pointed the gun at the windshield, and fired the gun.
The bullet hit the upper corner of the windshield and ricocheted off. Defendant then ordered two
of the people out of the vehicle and demanded they give him whatever they had in their
possession. After defendant took their possessions, an off-duty Detroit public school officer
appeared on the scene, identified himself as an officer, and told the assailants to “freeze.” The
assailants ran, and multiple shots were fired at them. The two assailants were seen getting into a
gray van. Later the police were notified of a nonfatal shooting; defendant was the victim who
had been treated and released from a hospital. He was located at a house and there was a gray
van parked in front of the house that belonged to defendant’s girlfriend. Later, when shown a
photographic lineup, the off-duty school officer identified defendant as the armed assailant, as
did two of the victims. Subsequently, defendant was convicted on all counts.

        On appeal, defendant argues that the trial court clearly erred in admitting evidence related
to the photographic identification of him as the armed robber by two of the victims because (1)
he was in custody at the time so a corporeal lineup should have been conducted, (2) he was not

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represented by counsel at the photographic lineup, and (3) the photographic lineup was unduly
suggestive. We disagree with all of defendant’s claims.

       An appellate court will not disturb a trial court’s ultimate determination in a Wade1
hearing unless it was clearly erroneous. People v McDade, 301 Mich App 343, 356; 836 NW2d
266 (2013). A trial court’s factual findings in a suppression hearing are also reviewed for clear
error. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). A finding is clearly
erroneous when this Court is left with a definite and firm conviction that the trial court made a
mistake. McDade, 301 Mich App at 356. Issues of law that arise in a suppression hearing are
reviewed de novo. Id.

        First, defendant claims that a corporal lineup should have been conducted because he was
in the custody of the Michigan Department of Corrections (MDOC) for a parole violation at the
time of the photographic lineup. Defendant is correct that, generally, identification of a suspect
by photograph should not be used when the suspect is in custody. People v Kurylczyk, 443 Mich
289, 298; 505 NW2d 528 (1993). However, for a corporeal lineup to be the preferred
identification procedure, the suspect must be in custody for the offense in which the lineup is
held. See People v Wyngaard, 151 Mich App 107, 113; 390 NW2d 694 (1986); People v
Metcalf, 65 Mich App 37, 46-47; 236 NW2d 573 (1975). Unless the suspect is in police custody
for the particular offense under investigation, a photographic lineup conducted as part of an
ongoing police investigation of an unsolved crime is merely a precustodial, investigatory
photographic lineup with respect to the offense at issue. See Kurylczyk, 443 Mich at 302. And,
here, because defendant was not in custody for the armed robberies being investigated at the time
the photographic lineup was conducted, he was not entitled to a corporeal lineup. Accordingly,
his claim on appeal in this regard is without merit.

        Second, defendant claims that he was entitled to have counsel present at the time of the
photographic lineup. However, again, defendant was not in custody for the armed robberies
being investigated at the time the photographic lineup was conducted as part of the police
investigation of the unsolved crimes. While defendant may have been a suspect, he had not been
arrested for the armed robberies and had not, at that point, been positively identified by any of
the eyewitnesses to the armed robberies. Adversarial judicial criminal proceedings had not been
initiated. See People v Hickman, 470 Mich 602, 611; 684 NW2d 267 (2004). As our Supreme
Court held in Kurylczyk, “[u]nder the circumstances, the appointment of counsel is neither
necessary nor feasible.” Kurylczyk, 443 Mich at 301-302. Simply stated, defendant was not in
custody, accused of committing the offenses being investigated, at the time of the photographic
lineup and “the right of counsel attaches with custody.” Id. at 302. Accordingly, defendant’s
argument on appeal in this regard is without merit.

       Third, defendant argues that the photographic array shown to the witnesses was unduly
suggestive and violated his right to due process under the Fourteenth Amendment. A
defendant’s right to due process is violated when the photographic identification procedure “was
so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of


1
    United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).


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misidentification.” Id. Defendant primarily argues that his photograph caused him to be singled
out because it was “stretched from a different sized photograph than all of the others and had a
large border around the picture that framed his face.” However, our Supreme Court rejected a
similar argument in Kurylczyk. In that case, the defendant argued that his photograph in a
photographic array was taken from a closer distance than that of the others in the array, leading
his photograph to appear larger than the others. Id. at 303. The Court held:

              [D]ifferences in the composition of photographs, in the physical
       characteristics of the individuals photographed, or in the clothing worn by a
       defendant and the others pictured in a photographic lineup have been found not to
       render a lineup impermissibly suggestive. [Id. at 304-305 (footnotes omitted).]

        Defendant also claims that the photograph used in the array did not reflect him
accurately; his mother and sister both testified that the photograph was an older picture of
defendant. Defendant further argues that the photograph used in the array was not consistent
with the description of the suspect provided by the eyewitnesses. But these challenges to the
photograph used in the array do not give rise to a conclusion that defendant’s photograph was
“suggestive.” The photograph used was “fairly representative of the defendant’s physical
features and thus sufficient to reasonably test the identification.” Id. at 304 (citation omitted).

        However, even if defendant’s photograph was suggestive as he claims, he has not shown
it “was so suggestive in light of the totality of the circumstances that it led to a substantial
likelihood of misidentification.” Id. at 302. When examining the totality of the circumstances, a
variety of factors are considered to determine the likelihood of misidentification. Id. at 306.
Those factors include: “the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the
criminal, the level of certainty demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation.” Id. (citation omitted).

        In this case, there is nothing in the record to suggest a substantial likelihood of
misidentification. The lower court record reveals that the two eyewitnesses who identified
defendant, and whose evidence defendant sought to exclude at the Wade hearing, were clear and
certain in their identifications of defendant as the armed robber. And these two witnesses had
ample time to see defendant when he stood in front of their vehicle, fired a bullet at their
windshield, ordered two of the people out of the vehicle, and then took their possessions at
gunpoint. In fact, one of the eyewitnesses testified that he looked directly at the armed assailant
so that he could identify him later. And the other eyewitness testified that defendant pointed his
gun directly at him. Further, the armed robbery occurred on March 16, 2014 and the
photographic lineup occurred shortly after, on March 27, 2014. Under these circumstances,
defendant’s contention that there was a substantial likelihood of misidentification is without
merit.

       Next, defendant argues that his trial counsel was ineffective for (1) failing to call an
expert to testify about the frailties of eyewitness identification testimony, and (2) presenting
inconsistent alibi testimony. We disagree. Because defendant did not move for a new trial or
request an evidentiary hearing in the trial court, this issue is not preserved and our review is


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limited to errors apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266
(2012).

        To establish ineffective assistance of counsel, a defendant must show that defense
counsel’s performance fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s error, the result of the proceeding would have been
different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012) (citation omitted).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). Further, this
Court will not substitute our judgment for that of counsel regarding matters of trial strategy, nor
will we assess counsel’s competence with the benefit of hindsight. People v Payne, 285 Mich
App 181, 190; 774 NW2d 714 (2009) (citation omitted).

        Defendant first argues that, because “the key evidence in this case was the identification
testimony,” it was incumbent on his attorney “to move for the appointment of an expert in
eyewitness identification.” Defendant refers to several studies in his brief which challenge the
utility of eyewitness identification testimony as allegedly unreliable, but he provides no
argument as to why the facts in his case required such expert testimony to present a substantial
defense. “An attorney’s decision whether to retain witnesses, including expert witnesses, is a
matter of trial strategy.” Id. And, again, counsel is presumed to employ effective trial strategy
unless defendant overcomes the heavy burden and proves otherwise. Id. Generally, an
attorney’s failure to call a particular witness constitutes ineffective assistance only when the
defendant has been deprived of a substantial defense. Id. (citation omitted). “A substantial
defense is one that might have made a difference in the outcome of the trial.” People v Chapo,
283 Mich App 360, 371; 770 NW2d 68 (2009) (citation omitted). Defendant has simply not
demonstrated that he was deprived of a substantial defense because his attorney did not seek the
appointment of an expert in eyewitness identification.

        Further, the record reveals that defense counsel extensively and effectively cross-
examined the three eyewitnesses, challenging their opportunity and ability to positively identify
defendant as the armed assailant. For example, defense counsel questioned one of the
eyewitnesses extensively about: inconsistencies between his trial testimony and his prior
statement to the police; whether he saw one of the assailants limping after the armed robbery; the
length of time that he was able to observe the armed assailant during the armed robbery and his
ability to “get a good look” at the assailants; and whether anyone in the group of friends had
consumed alcohol the evening of the armed robbery. Trial counsel also thoroughly cross-
examined the second eyewitness, questioning him about the group’s use of alcohol that evening,
the length of time of the armed robbery, the distance between him and the armed assailant, and
his subsequent description to police as to the ages of the assailants. Similarly, defense counsel
vigorously cross-examined the off-duty school officer about his identification of defendant at the
photographic lineup; the distance between him and the armed assailant during the armed
robbery; the amount of time he had to observe the assailants during the armed robbery; and the
inconsistencies between his trial testimony and preliminary examination testimony. In closing
argument, trial counsel spent a great amount of time challenging the witnesses’ description of the
assailants, their opportunity to view the assailants, and the age of the photograph used in the
photographic array. It is clear that defense counsel’s strategy was to challenge the reliability of
the identification of defendant as the armed assailant by the eyewitnesses. This Court does not

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substitute its judgment for that of defense counsel regarding matters of trial strategy, nor will it
assess counsel’s competence with the benefit of hindsight. Payne, 285 Mich App at 190. While
defense counsel could have presented expert testimony explaining the unreliability of eyewitness
identification to buttress the misidentification defense, the failure to do so did not render
counsel’s performance below an objective standard of reasonableness. See People v Cooper,
236 Mich App 643, 658; 601 NW2d 409 (1999).

        Defendant also argues that defense counsel’s performance was deficient because
inconsistent testimony from alibi witnesses was presented which undermined his explanation for
how he was shot. However, decisions concerning whether to call certain witnesses are presumed
to be matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
And, here, while the alibi witness testimony did conflict somewhat with regard to the time in
which each witness was with defendant, as defense counsel noted, the witness testimony was
consistent that defendant was on Carrie Street—not at the gas station—around the time of the
armed robbery, and defendant was shot while at Club Treasure, not at the gas station. Therefore,
defendant has failed to overcome the strong presumption that his attorney’s decision to present
the challenged alibi testimony was sound trial strategy even if it was not successful. See Payne,
285 Mich App at 190. But even if presenting the testimony of one or more of the alibi witnesses
was in error, considering the strength of the other evidence, defendant has failed to demonstrate a
reasonable probability exists that the result of the proceeding would have been different but for
the error. See Vaughn, 491 Mich at 669.

      Finally, in his supplemental brief, defendant argues that he is entitled to a remand under
People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), because the sentencing court
engaged in impermissible judicial fact-finding in scoring offense variables (OVs) 1, 2, and 9.
We agree that remand is required.

       Defendant did not raise this challenge in the trial court therefore our review is for plain
error affecting substantial rights. See id. at 392. As explained by our Supreme Court in
Lockridge:

               To make a threshold showing of plain error that could require
       resentencing, a defendant must demonstrate that his or her OV level was
       calculated using facts beyond those found by the jury or admitted by the
       defendant and that a corresponding reduction in the defendant’s OV score to
       account for the error would change the applicable guidelines minimum sentence
       range. If a defendant makes that threshold showing and was not sentenced to an
       upward departure sentence, he or she is entitled to a remand for [sic] the trial
       court for that court to determine whether plain error occurred, i.e., whether the
       court would have imposed the same sentence absent the unconstitutional
       constraint on its discretion. If the trial court determines that it would not have
       imposed the same sentence but for the constraint, it must resentence the
       defendant. [Id. at 399.]

       First, defendant argues the scoring of 25 points for OV 1, aggravated use of a weapon,
was impermissibly based on facts not found by the jury or admitted by him. We agree. MCL
777.31(1)(a) provides that OV 1 should be scored at 25 points when a firearm was discharged at

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or toward a human being. Defendant was convicted of armed robbery, felony-firearm, and felon
in possession of a firearm. None of these offenses required the jury to find that defendant
discharged a firearm at or toward any of the victims. And defendant did not admit to discharging
a firearm at or toward any of the victims. Thus, defendant’s total OV score should be reduced by
25 points.

       Second, defendant argues that the scoring of five points for OV 2, lethal potential of the
weapon possessed, was impermissibly based on facts not found by the jury or admitted by him.
We disagree. MCL 777.32(1)(d) provides that OV 2 should be scored at 5 points if the offender
possessed or used a pistol, rifle, or shotgun. Defendant was convicted of armed robbery, felony-
firearm, and felon in possession of a firearm; thus, the jury necessarily found that defendant
possessed a firearm and the scoring of 5 points was proper.

       Third, defendant argues that the scoring of ten points for OV 9, number of victims, was
impermissibly based on facts not found by the jury or admitted by him. We disagree. MCL
777.39(1)(c) provides that OV 9 should be scored at 10 points if two to nine victims were placed
in danger. Defendant was convicted of five counts of armed robbery; thus, the jury verdict
necessarily established the factual basis to assess ten points for OV 9.

        Defendant’s total OV score was 65 points, which corresponds with level IV. Defendant’s
prior record variable (PRV) score was 82 points, which corresponds with level F. Because of the
third-habitual enhancement, the applicable guidelines minimum sentencing range was 171-427
months. MCL 777.62. But the sentencing court engaged in judicial fact-finding with regard to
OV 1, thus, defendant’s OV score should be reduced by 25 points. The resulting OV score is 40
points, which corresponds with level III and changes the applicable guidelines minimum
sentence range from 171-427 months to 135-337 months. See MCL 777.62; Lockridge, 498
Mich at 399. Accordingly, defendant is entitled to a “Crosby remand.”2 That is, this matter must
be remanded to the sentencing court for determination whether the court would have imposed a
materially different sentence under the sentencing procedure described in Lockridge. Id. at 397.
If the sentencing court determines that it would have imposed the same sentence, the court may
reaffirm the original sentence. Id. However, if the sentencing court determines that it would not
have imposed the same sentence, it shall resentence defendant. Id.

      Affirmed, but remanded for further sentencing proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                           /s/ Michael J. Kelly
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Kirsten Frank Kelly



2
  The Lockridge Court referred to such remands as “Crosby remands” after the procedures set
forth in United States v Crosby, 397 F3d 103 (CA 2, 2005). Lockridge, 498 Mich at 395-397.


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