                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 29, 2018
               Plaintiff-Appellee,

v                                                                   No. 338289
                                                                    Genesee Circuit Court
DONTEZ MARTELL HOWARD,                                              LC No. 16-039451-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of first-degree criminal sexual conduct, MCL
750.520b (multiple variables) (“CSC-I”), and unarmed robbery, MCL 750.530. The trial court
sentenced defendant to 450 months to 60 years in prison for the CSC-I convictions and 10 to 15
years in prison for the unarmed robbery conviction.1 Defendant appeals by right; we affirm.

                                      I. IDENTIFICATION

        Defendant first argues on appeal that admission of evidence of defendant’s identification
the complainant (SW) made at the scene of his arrest at a bus terminal was erroneous. Defendant
claims that the identification was so unduly suggestive as to deny him due process because (1)
SW made the identification when defendant and codefendant were standing alone by a police
car, and (2) there was no need for an immediate identification because defendant could have
been arrested for resisting arrest. Defendant also claims that because of the suggestiveness of the
identification at the bus terminal, there was no independent basis for SW’s in-court identification
of him, and its admission into evidence was erroneous. We disagree. Defendant’s unpreserved
claims regarding the identifications are reviewed for plain error affecting his substantial rights.
People v McCray, 245 Mich App 631, 638; 630 NW2d 633 (2001).




1
   Defendant’s codefendant, Scott Devontae-Marquez Gill, pleaded guilty to CSC-I and a
sentence agreement of a minimum of 15 years in prison. In exchange, he agreed to testify
truthfully in defendant’s case.


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       “An identification procedure that is unnecessarily suggestive and conducive to irreparable
misidentification constitutes a denial of due process.” People v Williams, 244 Mich App 533,
542; 624 NW2d 575 (2001). To challenge an identification on due process grounds, a defendant
must establish 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. People v
Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993). To conduct this analysis, a court may
consider various factors, including:

       “[1] the opportunity of the witness to view the criminal at the time of the crime,
       [2] the witness’[s] degree of attention, [3] the accuracy of the witness’[s] prior
       description of the criminal, [4] the level of certainty demonstrated by the witness
       at the confrontation, and [5] the length of time between the crime and the
       confrontation.” [Id. at 306, quoting Neil v Biggers, 409 US 188, 199-200; 93 S Ct
       375; 34 L Ed 2d 401 (1972).]

In People v Winters, 225 Mich App 718, 727; 571 NW2d 764 (1997), this Court observed that
on-the-scene identifications promote fairness because they

       are reasonable, indeed indispensable, police practices because they permit the
       police to immediately decide whether there is a reasonable likelihood that the
       suspect is connected with the crime and subject to arrest, or merely an unfortunate
       victim of circumstance. Whatever the perceived problems of on-the-scene
       confrontations, it appears to us that prompt confrontations will, if anything,
       promote fairness by assuring greater reliability.

        When a court finds that an identification procedure was impermissibly suggestive,
evidence concerning the identification is inadmissible at trial but “in-court identification by the
same witness still may be allowed if an independent basis can be established that is untainted by
the suggestive pretrial procedure.” Kurylczyk, 443 Mich at 303. Courts should consider the
totality of the circumstances when determining whether an independent basis exists for the
admission of an in-court identification, including: (1) the witness’s prior knowledge of the
defendant, (2) the witness’s opportunity to observe the criminal during the crime (including
length of time of the observation, lighting, noise or other factors affecting sensory perception and
proximity to the alleged criminal act), (3) the length of time between the crime and the disputed
identification, (4) the witness’s level of certainty at the prior identification, (5) discrepancies
between the pretrial identification description and the defendant’s actual appearance, (6) any
prior proper identification or failure to identify the defendant, (7) any prior identification of
another as the culprit, (8) the mental state of the witness at the time of the crime (including
fatigue, nervous exhaustion, alcohol and drugs, and age and intelligence of the witness), and (9)
any special features of the defendant. People v Gray, 457 Mich 107, 115-116; 577 NW2d 92
(1998); People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977).

       SW had met defendant, albeit briefly, on the evening before the crimes at the bus
terminal. According to both SW and codefendant, SW also had ample opportunity to view
defendant at the time of the crime, early the next morning. The record demonstrates that they
walked together from a party store to an area near the river on the University of Michigan
campus in Flint. During that walk, SW thought that she was forming friendships with both

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defendant and codefendant, and she was able to observe them without any duress. Defendant
then knocked SW to the ground, dragged her to a tunnel under the river’s bridge, and sexually
assaulted her for more than 10 minutes, giving SW additional time to observe defendant, albeit
under much more stress.

        Because defendant did not object to the identification at trial, there was no evidentiary
hearing regarding the accuracy of SW’s description of defendant. But, based on defendant’s
arrest photograph, the prosecutor argued in closing argument that the description was accurate.
SW reported to the 9-1-1 operator that defendant was black, bald, and had facial hair. According
to the prosecutor in closing, that description accurately described defendant’s characteristics.
Moreover, SW reported that defendant wore a black hoodie with a red shirt underneath, black
pants, and tan boots. The arresting officer testified that defendant was wearing a navy blue
hoodie, dark pants, and tan boots. According to the prosecutor’s description of the arrest
photograph, defendant also wore a red shirt underneath.

        In the afternoon following the crime, SW and her grandfather returned to the bus
terminal, where she had originally met defendant and codefendant. When she again saw the men
there, the police were called. SW testified that she was sure that the men she saw at the bus
terminal were “the same guys from the night before.” The identification was made around 1:00
p.m., approximately 12 hours after the sexual assault and robbery earlier that morning. Given
SW’s relatively lengthy opportunity to observe defendant, her accurate description, and the short
period between the crimes and identification, we agree there was no likelihood of
misidentification despite any suggestiveness involved with identifying defendant with
codefendant in front of the police car. Although defendant suggests that he could have been
arrested and brought to the police station for a corporeal lineup, the identification at the scene of
the arrest promoted fairness to defendant and ensured greater reliability. Winters, 225 Mich App
at 727. Accordingly, the identification at the bus terminal was not impermissibly suggestive, and
defendant cannot establish plain error from its admission into evidence at trial. 2

         We also find that even if evidence of SW’s identification of defendant before and at trial
had not been admitted, there was substantial evidence that he was the perpetrator. Codefendant
testified that he and defendant were the men who robbed and raped SW. Defendant’s DNA was
recovered from a condom wrapper left at the scene. Codefendant also identified himself,
defendant, and SW on the surveillance footage captured before the crime, and the surveillance
footage after the crime showed codefendant and defendant going to a nearby dorm, where
codefendant’s girlfriend, Adams, lived. Adams recalled that codefendant had called her and



2
  Given our conclusion that the identification at the arrest was not impermissibly suggestive, we
need not address defendant’s claim that because it was impermissibly suggestive, there was no
independent basis for SW’s in-court identification of defendant. Regardless, we note that all but
one of the factors—SW’s mental state (including a learning disability and emotional upset from
the assault and robbery)—indicate that she had an independent, untainted basis for the in-court
identification. Moreover, even SW’s mental state did not preclude her from making an accurate
description of defendant to authorities.


                                                -3-
urgently requested that she come to the door to let them in. When they came inside, they carried
SW’s purse and jacket; Adams later found SW’s identification in codefendant’s pants. Then,
codefendant and defendant took showers, which Adams testified was unusual. The next day,
when Adams received a crime alert about the robbery and rape, defendant was joking because
the email “described him as a 30-year-old.” Also, defendant called his wife and asked her to put
money in his prisoner account if he were arrested. From this evidence, the jury could infer that
defendant was one of the perpetrators. Therefore, any error resulting from SW’s identifications
of defendant did not affect his substantial rights.

        Defendant alternatively argues that defense counsel was ineffective for failing to move to
suppress SW’s identifications. We disagree. We review defendant’s unpreserved argument for
errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342
(2004); People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).

        The United States and Michigan constitutions guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. “Whether a person
has been denied effective assistance of counsel is a mixed question of fact and constitutional
law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To establish ineffective
assistance of counsel, a defendant must show: (1) that counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms, and (2) that there is a
reasonable probability that, but for counsel’s deficient performance, the result of the proceedings
would have been different. Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 US at 694. “Counsel is not ineffective for failing to make a futile objection.”
People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).

        As we concluded above, defendant has not established error related to SW’s
identifications of him. Therefore, any objection or motion to suppress the identifications on the
same bases would have been futile, and defense counsel’s performance did not fall below an
objective standard of reasonableness under prevailing professional norms. Id. Moreover,
defendant cannot establish that, but for the failure to move to suppress, or object to the
identifications, the result of the proceedings would have been different. Defendant is not entitled
to a new trial on the basis of ineffective assistance of counsel.

                             II. PRIOR ROBBERY CONVICTION

        Defendant next claims that his due process rights were violated when defense counsel
elicited evidence—on direct examination of defendant—that he had a prior armed robbery
conviction. “A defendant will not be heard to introduce and use evidence to sustain his theory at
trial and then argue on appeal that the evidence was prejudicial and denied him a fair trial.”
People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001). Defendant may not benefit
from an alleged error to which he contributed by plan or through negligence. People v
Witherspoon, 257 Mich App 329, 333; 670 NW2d 434 (2003). To hold otherwise would allow
defendant to harbor error as an appellate parachute. People v Fetterley, 229 Mich App 511, 520;
583 NW2d 199 (1998).


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        At trial, defendant explained on direct examination that he ran from the police at the bus
terminal because he was on parole for armed robbery and had been selling marijuana. On
redirect examination, defendant also explained that he had violated parole by removing his tether
and that violation—not the emailed crime alert—explained the request that Adams overheard for
money to be put on his account if he were arrested. In light of defendant’s strategic use of the
information about his prior conviction and parole, we conclude that defendant’s argument on
appeal that it denied him a fair trial is without merit. Witherspoon, 257 Mich App at 333;
Fetterley, 229 Mich App at 520.

       Defendant also claims that defense counsel was ineffective for eliciting this testimony
about his prior conviction. We disagree.

        As just discussed, defendant through trial counsel, solicited testimony concerning his
prior conviction and parole status for strategic trial purposes. This Court presumes that counsel
provided defendant with effective assistance of counsel. People v Lane, 308 Mich App 38, 68;
862 NW2d 446 (2014). Furthermore, counsel’s presumptively strategic trial decisions, such as
calling witnesses, questioning them, and presentation of evidence or arguments, will not be
second-guessed on appeal. People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).
In light of defendant’s strategic use of information regarding his prior conviction and his parole
status, his argument on appeal that he was denied the effective assistance of counsel lacks merit.
Id.; Witherspoon, 257 Mich App at 333; Fetterley, 229 Mich App at 520.

                          III. DEFENDANT’S STANDARD 4 BRIEF

       Defendant raises additional issues in a supplemental brief, filed in propria persona
pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4.

                                 A. JUDICIAL MISCONDUCT

        In a Standard 4 brief on appeal, defendant argues that the trial court’s characterization of
SW as the victim during voir dire and in certain instructions amounted to judicial bias and
invaded the province of the jury. We disagree. Defendant’s unpreserved claim is reviewed for
plain error affecting his substantial rights. McCray, 245 Mich App at 638.

       A defendant has the right to a fair and impartial trial under both the United States and
Michigan constitutions. See US Const, Am VI; Const 1963, art 1, § 20. “A trial judge’s conduct
deprives a party of a fair trial if the conduct pierces the veil of judicial impartiality.” People v
Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015).

       A party that challenges a judge for bias must overcome a heavy presumption of
       judicial impartiality. Where a judge forms opinions during the course of the trial
       process on the basis of facts introduced or events that occur during the
       proceedings, such opinions do not constitute bias or partiality unless there is a
       deep-seated favoritism or antagonism such that the exercise of fair judgment is
       impossible. Comments critical of or hostile to counsel or the parties are ordinarily
       not supportive of finding bias or partiality. [People v Wells, 238 Mich App 383,
       391; 605 NW2d 374 (1999) (citations omitted).]


                                                -5-
As our Supreme Court stated in Stevens, 498 Mich at 170-171 (citations omitted):

       A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
       pierces the veil of judicial impartiality. . . . A judge’s conduct pierces this veil
       and violates the constitutional guarantee of a fair trial when, considering the
       totality of the circumstances, it is reasonably likely that the judge's conduct
       improperly influenced the jury by creating the appearance of advocacy or
       partiality against a party.

The Court in Stevens identified five, non-exhaustive steps for a reviewing court to consider in its
fact-specific analysis: (1) “the nature or type of judicial conduct itself,” (2) “the tone and
demeanor the trial judge displayed in front of the jury,” (3) “the scope of judicial intervention
within the context of the length and complexity of the trial, or any given issue therein,” (4) “the
extent to which a judge's comments or questions were directed at one side more than the other,”
and (5) the presence or absence of a curative instruction. Id. at 172, 174, 176-177.

        The trial court’s references to SW as the victim do not evidence deep-seated favoritism or
antagonism. As the prosecutor argues, when the trial court read from the information, the court
attributed its contents—including any references to the victim—to the prosecutor. To the extent
that the trial court otherwise referred to SW as the victim, defendant cannot establish plain error
affecting his substantial rights. By definition, SW was, in fact, a victim. A “victim” is “a person
who suffers from a destructive or injurious action or agency.” Random House Webster’s College
Dictionary (2001). Moreover, relevant to criminal sexual conduct cases, the term “victim”
“means the person alleging to have been subjected to criminal sexual conduct.” MCL
750.520a(s). Defendant did not dispute that SW was robbed or sexually assaulted and was,
therefore, a victim. He only claimed that codefendant, not defendant, was the perpetrator.
Nothing in the record demonstrates that the judge’s demeanor or tone suggested any partiality,
and defendant did not object to note any inappropriateness. See Stevens, 498 Mich at 176.
Moreover, the trial court did not intervene during the course of trial to identify SW as a victim
but instead made the references while conducting voir dire and giving jury instructions.
Defendant does not argue that the trial court made additional comments or asked questions that
were directed at one side more than the other. Id. at 176-177.

        Moreover, the trial court instructed the jury that defendant was presumed to be innocent.
The jurors were instructed that the trial court’s comments and instructions were not evidence.
The trial court also instructed the jury, “So if you believe I have an opinion about how you
should decide the case, you must pay no attention to that opinion. You are the only judges of the
facts, and you should decide the case based on the evidence.” The jurors are presumed to have
followed the trial court’s instructions. People v Meissner, 294 Mich App 438, 457; 812 NW2d
37 (2011). Defendant cannot establish plain error affecting his substantial rights based on the
trial court’s characterization of SW as a victim.

                                   B. RIGHT TO COUNSEL

       Defendant’s last claim in his Standard 4 brief on appeal is that he was constructively
denied representation under United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657
(1984), because defense counsel failed to interview the prosecution’s witnesses. We disagree.

                                                -6-
Our review of defendant’s unpreserved claim is limited to errors apparent from the record.
Matuszak, 263 Mich App at 48; Wilson, 242 Mich App at 352.

               Most claims of ineffective assistance of counsel are analyzed under the
       test developed in Strickland . . . . Under this test, counsel is presumed effective,
       and the defendant has the burden to show both that counsel’s performance fell
       below objective standards of reasonableness, and that it is reasonably probable
       that the results of the proceeding would have been different had it not been for
       counsel’s error. But in Cronic . . . , the United States Supreme Court identified
       three rare situations in which the attorney’s performance is so deficient that
       prejudice is presumed. [People v Frazier, 478 Mich 231, 243; 733 NW2d 713
       (2007) (citations omitted).]

“One of these situations involves the complete denial of counsel, such as where the accused is
denied counsel at a ‘critical stage’ of the proceedings.” Id. The other two situations are when
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” and
“where counsel is called upon to render assistance under circumstances where competent counsel
very likely could not.” Id. at 243 n 10 (quotation marks and citation omitted).

        A defendant raising a claim of ineffective assistance of counsel bears the burden of
proving the factual predicate of his or her claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999). To support his claim in his Standard 4 brief on appeal, defendant relies only on two
proposed, unsigned affidavits by defense counsel and codefendant. There is no evidence in the
trial court record regarding defense counsel’s preparation for this case. Because defendant has
not provided any evidence establishing that defense counsel failed to interview or investigate the
prosecution’s witnesses, defendant’s claim necessarily fails. Id. Moreover, even if we were to
consider defendant’s claim under Cronic, we would conclude that the record does not establish
that defense counsel entirely failed to subject the prosecution’s case to meaningful adversarial
testing. On the contrary, defense counsel extensively cross-examined the witnesses at trial,
conducted voir dire of the experts, and called defendant to testify in his case-in-chief. He also
made a thorough closing argument, attacking the prosecutor’s case.

       We affirm.

                                                            /s/ Michael J. Kelly
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey




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