                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 27, 2017
               Plaintiff-Appellee,

v                                                                  No. 330575
                                                                   Wayne Circuit Court
MICHAEL DARNELL SYKES,                                             LC No. 15-004016-01-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of three counts of kidnapping, MCL
750.349, eight counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, two
counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c, two counts of armed
robbery, MCL 750.529, three counts of felonious assault, MCL 750.82, and possession of a
firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant
to prison terms of 37½ to 70 years for each kidnapping and CSC-I conviction, 10 to 15 years for
each CSC-II conviction, 40 to 60 years for each robbery conviction, and two to four years for
each felonious assault conviction, those sentences to be served concurrently, but consecutive to a
two-year term of imprisonment for the felony-firearm conviction. We affirm.

                                       I. BASIC FACTS

       Defendant was convicted of feloniously assaulting, kidnapping, and sexually assaulting
three young women, JT, JA, and LR, on the night of March 28-29, 2015, while armed with a
gun. He was also convicted of robbing JT and LR. After the women stopped at a gas station, an
overweight black male wearing a black zippered ski mask got into their car and demanded their
property. Only the area from the bridge of his nose to the top of his eyebrows was visible. The
man was armed with a revolver. He robbed the women and then took them to various locations
where he sexually assaulted them. He eventually let them go. The women were shown
photographic arrays of possible suspects but did not identify anyone.




                                               -1-
        On the night of April 16, 2015, defendant was the backseat passenger of a car involved in
a police chase.1 He was found to be in possession of a black zippered ski mask. Defendant was
later included in two photographic arrays shown to two of the victims, who identified him as
their assailant. DNA evidence linked defendant to the sexual assaults.

                                 II. JUDICIAL MISCONDUCT

        Defendant first argues that he was denied a fair trial due to judicial misconduct. The
issue as presented actually involves additional issues of shackling and defendant’s right to be
present at trial. Defendant objected below to the trial judge’s conduct of speaking to the
complainants, so that aspect of this issue is preserved. However, defendant did not preserve the
issue whether this conduct violated defendant’s right to be present because defendant did not
object on that basis below and “an objection based on one ground is usually considered
insufficient to preserve an appellate attack based on a different ground.” People v Kimble, 470
Mich 305, 309; 684 NW2d 669 (2004). Defendant also failed to object to the other instances of
misconduct on which he relies, leaving those claims unpreserved as well. People v Metamora
Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). To the extent the issue is
preserved, “[t]he question whether judicial misconduct denied defendant a fair trial is a question
of constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162; 869
NW2d 233 (2015). The remaining unpreserved aspects of this issue are reviewed for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).

       A criminal defendant is entitled to expect a “neutral and detached magistrate of justice.”
People v Moore, 161 Mich App 615, 619; 411 NW2d 797 (1987). “A jury trial demands the fact
and appearance of judicial impartiality, neither of which should ever be compromised by
comments that unfairly belittle defense counsel.” People v Wigfall, 160 Mich App 765, 773; 408
NW2d 551 (1987). “A trial judge is presumed to be impartial and the party who asserts partiality
has a heavy burden of overcoming that presumption.” In re MKK, 286 Mich App 546, 566; 781
NW2d 132 (2009). As explained in Stevens, 498 Mich at 164:

               A trial judge’s conduct deprives a party of a fair trial if the 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. In evaluating the totality of the circumstances, the reviewing court should
       inquire into a variety of factors including, but not limited to, the nature of the trial
       judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
       conduct in the context of the length and complexity of the trial and issues therein,


1
  As a result of this incident, defendant was charged in a separate case (the “gun case”) with
carrying a concealed weapon (CCW), MCL 750.227, and resisting or obstructing a police officer,
MCL 750.81d.


                                                 -2-
       the extent to which the judge’s conduct was directed at one side more than the
       other, and the presence of any curative instructions, either at the time of an
       inappropriate occurrence or at the end of trial.

                             A. SPEAKING TO THE WITNESSES

        After the complainants had testified, but before the trial ended, the judge spoke to them.2
Defendant twice objected, expressing concern that the judge’s “behavior has changed” and the
judge “has been prejudice [sic] . . . .” Because there is nothing in the record to indicate that the
judge spoke to the complainants in the jury’s presence, such conduct could not have influenced
the jury in any way. Defendant argues instead that the judge’s conduct violated his right to be
present at trial.

        A criminal defendant has a due process right to be present during the proceedings
whenever his presence has a reasonably substantial relation to his opportunity to defend against
the charges. United States v Gagnon, 470 US 522, 526-527; 105 S Ct 1482; 84 L Ed 2d 486
(1985). This right is also statutorily protected by MCL 768.3, which provides that “[n]o person
indicted for a felony shall be tried unless personally present during the trial[.]” “A defendant has
a right to be present during . . . any . . . stage of trial where the defendant’s substantial rights
might be adversely affected.” People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984).
Specifically, “[a] defendant has a right to be present during the voir dire, selection of and
subsequent challenges to the jury, presentation of evidence, summation of counsel, instructions
to the jury, rendition of the verdict, imposition of sentence, and any other stage of trial where the
defendant’s substantial rights might be adversely affected.” Id. A defendant’s absence from a
part of the trial provides a basis for reversal of a conviction only if there is a reasonable
possibility that the defendant was prejudiced by his absence. People v Buie (On Remand), 298
Mich App 50, 59; 825 NW2d 361 (2012).

        Defendant’s absence during the judge’s conversation with the complainants did not
violate defendant’s right to be present at all critical stages of the criminal proceeding. Although
the conversation occurred in the course of the trial, it could not have affected the outcome of the
trial because the court was not sitting as the trier of fact and anything the complainants said was
not disclosed to the jury. In addition, the judge stated that he “did not discuss the case with them
in any manner” and that the conversation had not affected any of his rulings.3 Defendant



2
  Although the judge stated that he asked permission from counsel to speak to the witnesses, the
record does not indicate what answer, if any, was given. Accordingly, we cannot conclude that
this aspect of the issue has been waived.
3
  The judge stated that he expressed concern for the complainants’ welfare. He told them that
“regardless of what happens in this case, they should not let this define the rest of their” lives.
He expressed the “hope that they were in school and getting an education” and encouraged them
to “seriously consider going further in their education and getting something so they could take
care of themselves.”


                                                -3-
speculates that the conversation could have influenced the court at sentencing based on
comments the court made at sentencing. We disagree.

        Defendant asserts that, at sentencing, the judge “gave the counter-argument” to
defendant’s challenge to the scoring of offense variable (OV) 4. The judge was actually ruling
on an objection to the scoring of OV 4. He stated, “I know you know that . . . these young
people went under some psychological trauma as long as they were with this defendant. So ten
is a proper score.” The judge’s other remarks were based on the evidence at trial. He stated that
he had no sympathy for defendant, whom he described as “cold, cool, smart, and calculating.”
He then cited the complainants’ testimony that defendant ordered LR to attempt to commit a
robbery and the catastrophic consequences that could have resulted if the intended victims had
resisted. Although the judge did remark on “the life prospects” of the complainants, there is
nothing to suggest that he was influenced by anything the complainants said during their
previous conversation.

                          B. REMARKS TO DEFENSE COUNSEL

       Defendant contends that the judge made belittling remarks to defense counsel. In one
instance, counsel was conferring with defendant whether to have a particular witness produced.
The judge remarked, “Counsel, your client doesn’t know what the rules are. . . . I expect for you
to make the decisions.” This statement is not particularly offensive and could not have
influenced the jury against defendant because it occurred outside the presence of the jury.

        Another incident did occur in front of the jury. During cross-examination of a witness,
defense counsel asked to defer cross-examination until the witness could find and produce a
document. The court denied the request, stating, “There is no time, counsel. Keep moving.” It
can be inferred that the judge may have sounded annoyed, but expressions of annoyance do not
establish partiality. In re Hocking, 451 Mich 1, 13 n 16; 546 NW2d 234 (1996). The judge did
not belittle or demean counsel and this one isolated incident could not have created the
appearance of partiality against defendant.

        The other incident involved defendant’s decision to rest or present proofs. Outside the
presence of the jury, defense counsel refused to immediately say what she planned to do,
indicating that she needed to speak to defendant first. The judge was willing to give counsel
time to confer with defendant. She apparently did not want to do it in the courtroom, but she did
not ask for a recess. The judge called the jury out. Once the jury was in the courtroom, the
judge asked counsel what she planned to do. Again, she refused to say. Eventually, she asked
for “a little break.” The judge instructed the deputies to take defendant out and instructed
counsel to go with them. There was nothing overtly improper about the discussion that occurred
in the presence of the jury and defendant does not contend otherwise. Instead, he argues that the
fact that deputies escorted him out of the courtroom and took him to “lock up” was the
equivalent of shackling.

       “Freedom from shackling is an important component of a fair trial.” People v Dixon, 217
Mich App 400, 404; 552 NW2d 663 (1996). Freedom from shackling is rooted in a defendant’s
due process rights. Deck v Missouri, 544 US 622, 626-628; 125 S Ct 2007; 161 L Ed 2d 953
(2005). But “[t]he right of a defendant to appear at trial without any physical restraints is not

                                               -4-
absolute.” People v Banks, 249 Mich App 247, 256; 642 NW2d 351 (2002). Restraints are
permitted “to prevent the escape of the defendant, to prevent the defendant from injuring others
in the courtroom, or to maintain an orderly trial.” Dixon, 217 Mich App at 404. A trial court
abuses its discretion when it requires a criminal defendant to be shackled without citing record
evidence justifying the use of shackles. People v Payne, 285 Mich App 181, 186-187; 774
NW2d 714 (2009). If the court orders the defendant to be shackled without adequate
justification and the shackles are visible to the jury, “the defendant need not demonstrate actual
prejudice to make out a due process violation.” Instead, the prosecution must prove that the error
did not affect the verdict. Deck, 544 US at 635. But if the shackles are not visible, the defendant
is not prejudiced by the error. People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008).

        Defendant was not shackled, visibly or otherwise. He asserts that the jury saw deputies
escorting him to the lock up, which he contends is the equivalent of visible shackling. Apart
from defendant’s failure to cite authority for this novel argument, there is nothing to show that
the jurors knew that defendant was being taken to a holding cell. The court reporter noted
parenthetically in the transcript that this is where defendant was going, but the judge stated only
that defendant was being taken “in the back.” Because the record shows only that deputies
escorted defendant out of the courtroom so he could confer with counsel “in the back,” we reject
defendant’s attempt to equate the matter with visible shackling.

        In sum, defendant has not demonstrated that the trial judge’s conduct pierced the veil of
judicial impartiality, and he has not shown that the other matters discussed as part of this issue
violated his right to due process or denied him a fair trial.

                               III. IDENTIFICATION EVIDENCE

        Defendant next argues that the trial court erred in admitting the complainants’
identification testimony and the photographic arrays in which they identified him. Defendant did
not preserve this issue by either moving to suppress the identification evidence before trial,
People v Solomon, 82 Mich App 502, 506; 266 NW2d 453 (1978), or by objecting to the
admission of the identification evidence at trial. People v McCray, 245 Mich App 631, 638; 630
NW2d 633 (2001). Therefore, we review this issue for plain error affecting defendant’s
substantial rights. Id. Defendant further argues, however, that defense counsel was ineffective
for not challenging the identification evidence in the trial court. Because defendant did not raise
the issue of ineffective assistance of counsel in a motion for a new trial or request for an
evidentiary hearing in the trial court, our review of that issue is limited to mistakes apparent from
the record. People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). To establish
ineffective assistance of counsel, defendant must “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.” People v Frazier,
478 Mich 231, 243; 733 NW2d 713 (2007).

       In People v Kevin Williams, 244 Mich App 533, 542-543; 624 NW2d 575 (2001), this
Court explained:

               An identification procedure that is unnecessarily suggestive and conducive
       to irreparable misidentification constitutes a denial of due process. In order to

                                                -5-
       challenge an identification on the basis of lack of due process, “a 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.” If the trial court finds the procedure was impermissibly
       suggestive, evidence concerning the identification is inadmissible at trial unless
       an independent basis for in-court identification can be established “that is
       untainted by the suggestive pretrial procedure.” [Citations omitted.]

         Defendant complains that the witnesses identified him after being shown multiple
photographic lineups, but the record shows that his photograph only appeared in two lineups, the
ones in which LR and JA identified him, and he has not shown that his photograph was singled
out in some way, rendering it so suggestive as to create a substantial likelihood of
misidentification. Instead, he argues that because the witnesses had seen news reports in which
he was featured, they must have based their identifications on that exposure rather than on their
ability to view the perpetrator during the offense. However, “the potential unreliability of a type
of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.”
Perry v New Hampshire, 565 US 228, 245; 132 S Ct 716; 181 L Ed 2d 694 (2012). Further,
“[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct,
warrant a due process rule requiring a trial court to screen such evidence for reliability before
allowing the jury to assess its creditworthiness.” Id. Because the fact that the witnesses’
exposure to news reports featuring defendant did not involve any state action, the fact that it may
have influenced their identification of defendant did not constitute a denial of due process.

        Defendant also argues that LR’s identification should have been suppressed because
during the photographic lineup at which she identified defendant, “she was told by the observing
officer ‘the person you point [sic] out is in custody.’ ” An identification procedure can be unduly
suggestive when, for example, a police officer tells the witness that the defendant had been
arrested for the offense and shows her a photograph of the defendant. “The display of the single
photograph, combined with the statement that this was the man the police had arrested for the
[crime], was highly suggestive.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).

         Defendant has taken LR’s testimony out of context. LR testified that she picked
defendant out of a photographic lineup. On cross-examination, she admitted that she was “led to
believe that they had finally caught the perpetrator[.]” She explained that “when I pointed him
out – when we were leaving, he said the person that you pointed out is in custody.” Obviously,
this situation is far different from that in Gray in that LR was shown an array of six photographs,
not one, and nobody said anything about defendant having been arrested until after she identified
him as her assailant. Thus, defendant has not shown that the photographic lineup was unduly
suggestive. Moreover, even if the officer’s statement somehow tainted LR’s subsequent in-court
identification, defendant has not shown that the admission of LR’s in-court identification
affected his substantial rights. An error affects the defendant’s substantial rights when it affects
the outcome of the case. Carines, 460 Mich at 763. Given that all three witnesses testified that
the masked gunman had vaginal intercourse with LR in the abandoned house, that a used
condom containing fresh semen was recovered from the house the same day, and that the DNA
developed from that semen matched defendant’s DNA profile, there is no reasonable likelihood
that, had LR not been allowed to identify defendant as her assailant, the outcome of the trial
would have been different.
                                                -6-
        Because defendant has not shown plain error in the admission of the identification
evidence, his related claim of ineffective assistance of counsel must also fail. Because defendant
has not shown that the identification evidence was inadmissible, there is no basis to conclude that
a motion to suppress would have been successful. “[D]efense counsel is not ineffective for
failing to pursue a futile motion.” People v Brown, 279 Mich App 116, 142; 755 NW2d 664
(2008).

                           IV. DEFENDANT’S STANDARD 4 BRIEF

       Defendant presents additional arguments in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. The arguments are difficult to
discern and present no basis for relief.

        Defendant argues that a Fourth Amendment violation occurred when he was taken into
custody following the car chase, and that violation tainted all evidence recovered in connection
with this case such that it should have been suppressed. Defendant also raises a related claim of
ineffective assistance of counsel. Because neither issue was raised below, we review defendant’s
substantive claim for plain error affecting defendant’s substantial rights, Carines, 460 Mich at
763-764, and we review defendant’s ineffective assistance of counsel claim for mistakes
apparent from the record. Lane, 308 Mich App at 68.

        “The Fourth Amendment of the United States Constitution and its counterpart in the
Michigan Constitution guarantee the right of persons to be secure against unreasonable searches
and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). “An
investigatory stop, which is limited to a brief and nonintrusive detention, constitutes a Fourth
Amendment seizure.” People v Jones, 260 Mich App 424, 429; 678 NW2d 627 (2004). A
police officer may briefly stop and detain a person to investigate possible criminal activity if he
has a reasonable suspicion based on specific and articulable facts that the person detained has
committed or is committing a crime. People v Shankle, 227 Mich App 690, 693; 577 NW2d 471
(1998). The trial testimony in this case and the preliminary examination testimony in the gun
case indicate that the vehicle in which defendant was riding was targeted for a traffic stop
because it was speeding and because it matched the description of a vehicle wanted in
connection with some robberies. Defendant does not appear to challenge the validity of the
investigatory stop itself. His arguments are instead focused on the scope and duration of the
detention.

        “A traffic stop is reasonable as long as the driver is detained only for the purpose of
allowing an officer to ask reasonable questions concerning the violation of law and its context
for a reasonable period.” People v Williams, 472 Mich 308, 315; 696 NW2d 636 (2005)
(footnote omitted). “Authority for the seizure . . . ends when tasks tied to the [reason for the
stop] are – or reasonably should have been – completed.” Rodriguez v United States, ___ US
___; 135 S Ct 1609, 1614; 191 L Ed 2d 492 (2015). “Once the purpose of the traffic stop is
completed, a motorist cannot be further detained unless something that occurred during the stop”
creates reasonable suspicion of further criminal activity. United States v Hill, 195 F3d 258, 264
(CA 6, 1999). In other words, if a new set of circumstances presents itself, “an officer is justified
in extending the detention long enough to resolve the suspicion raised.” Williams, 472 Mich at
315 (footnote omitted).

                                                -7-
        Defendant contends that the duration of the stop was unreasonable because the police
learned that the vehicle was not wanted in connection with the robberies. According to
defendant, Sergeant Jackson determined that the car was registered to the driver’s boyfriend and
had not been reported stolen. Defendant further asserts that Jackson “has testified that the [car]
is not the vehicle he was looking for. He identified this fact at the scene before leaving. His
officers checked the license plates before a tow truck was leaving to come remove the now
abandoned [car] and that’s when Sergeant Jackson identified that car was not the vehicle he was
looking for, which did dispell [sic] his initial suspicion.” Defendant has not offered record
citations for his assertions and we were not able to find any such testimony in the transcripts
from defendant’s preliminary examination or trial. Because defendant has failed to establish the
factual predicate for his claim, he has not shown plain error.

         Defendant also argues that the evidence was insufficient to establish probable cause to
arrest him for CCW and for resisting or obstructing a police officer. Defendant apparently does
not dispute that the police had reasonable suspicion for initiating the traffic stop. “A police
officer may order occupants to get out of a vehicle, pending the completion of a traffic stop,
without violating the Fourth Amendment’s proscription against unreasonable searches and
seizures.” People v Chapo, 283 Mich App 360, 368; 770 NW2d 68 (2009). Officer Taylor
testified in the gun case that he had to forcibly remove the front seat passenger from the car
because he refused commands. When Taylor looked up, he saw defendant fighting with Officer
Cleaves. Officer Cleaves did not testify at the preliminary examination in the gun case and,
while both he and Taylor testified at trial in this case, neither mentioned defendant’s fight with
Cleaves. From this, defendant concludes that Taylor must have lied about defendant resisting or
obstructing Cleaves, and thus the police lacked probable cause to arrest him for that offense.4
The officers’ failure to mention the details of defendant’s arrest for charges unrelated to this case
does not compel the conclusion that the officers previously lied about those details. Indeed, it is
more likely that the officers did not testify to the details regarding defendant’s conduct at the
scene because it was not relevant to any issue at trial in this case. Because defendant’s claim is
based on pure, unsupported speculation, he has failed to show plain error.

       And because defendant has not shown a plain Fourth Amendment violation, he has not
shown that there was a valid basis on which to move to suppress the evidence. Because any
motion to suppress would have been futile, defense counsel was not ineffective for failing to
pursue such a motion. Brown, 279 Mich App at 142.

        Defendant’s second claim of ineffective assistance of counsel is that counsel failed to
investigate what Cleaves knew about the traffic stop and discover that defendant did not resist or
obstruct him during the stop. This, too, is based on defendant’s assumption that Taylor lied
about defendant resisting or obstructing Cleaves during the traffic stop because Cleaves did not
give similar testimony at defendant’s trial in this case. Apart from the fact that there is nothing
in the record to indicate that counsel did not investigate Cleaves, there is nothing in the record to


4
 Defendant contends for other reasons that the police lacked probable cause to arrest him for
CCW. We do not find it necessary to address that issue.


                                                -8-
suggest that Cleaves either lied or would have recalled the circumstances of defendant’s arrest
differently than Taylor. Again, the omission at trial of the details of defendant’s arrest can be
attributed to the fact that they were not relevant to a fact at issue in this case. It does not compel
the conclusion that defendant did not resist or obstruct the officer during his arrest.

        Defendant also states that “[t]he search warrant/affidavits are invalid because they were
not issued by and review [sic] by an examining magistrate.” Defendant does not further explain
the basis for this statement. The search warrant affidavits and search warrant documents
attached to defendant’s Standard 4 brief plainly indicate that they were reviewed and issued by
an identified Wayne Circuit Court judge. There is no basis for concluding that the documents
were not properly issued.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Deborah A. Servitto
                                                              /s/ Michael J. Riordan




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