                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 29, 2017
               Plaintiff-Appellee,

v                                                                  No. 329358
                                                                   Calhoun Circuit Court
CHRISTOPHER MICHAEL TAYLOR,                                        LC No. 2014-003393-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

         Following a trial, a jury convicted defendant, Christopher Michael Taylor, of one count
of first-degree premeditated murder, MCL 750.316(1)(a), two counts of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b, and one count of felon in
possession of a firearm, MCL 750.224f. The trial court sentenced defendant as a fourth habitual
offender, MCL 769.12, to two years’ imprisonment for each felony-firearm conviction, to be
served consecutively to concurrent prison terms of life without the possibility of parole for the
first-degree murder conviction and 76 months to 300 months for the felon in possession of a
firearm conviction. Defendant appeals his convictions by right. We affirm.

                                     I. PERTINENT FACTS

        In the early morning hours of November 9, 2014, Xavier Embry was fatally shot as he sat
in his car near 263 Parkway in Battle Creek. Two eyewitnesses testified at trial to what they
saw. John Obyrne testified that his home was approximately 30 to 40 feet from where Embry
was shot. He said that he woke up at approximately 3:20 a.m., and went to his enclosed front
porch to smoke a cigarette. While on the porch smoking, he saw a man walk up to a parked
white car, stand at an angle to the door, and reach an object that he held in his hand inside the
vehicle. Obyrne then witnessed two “[t]wo loud pops and two flashes . . . inside the vehicle” that
were consistent with gunshots. Afterward, he watched the man “walk[] back around the back
side of the vehicle” and flee the scene through the yard of a nearby home. Obyrne said he was
“positive” that the man was wearing “a sweat jacket-type of hoodie” that “had camo arms.”
Meosha Brown, who also witnessed the shooting as she sat in a nearby vehicle, provided
testimony consistent with Obyrne’s testimony. Although Brown could not tell the gender or race
of the person who approached the white car prior to the sound of gunshots, she did see that the



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person had on “some Army fatigues print.” Obyrne telephoned the police. When they arrived,
he told them where he had last seen the suspect.

        Officer Kevin Farnham, a canine handler with the Battle Creek Police Department
(BCPD), testified that, starting from where Obyrne told police he had last seen the suspect, he
along with BCPD Officer Mikael Ziegler and Bruiser, Farnham’s tracking-dog, tracked the
suspect to a house on 213 Howland. There, they found defendant sitting alone on the porch,
wearing a jacket with camouflage on the sleeves. Obyrne testified that approximately 10
minutes after the shooting, police took him to a house and showed him defendant, who was
standing in the front yard of the house with officers behind and on either side of him, wearing the
same clothing as the man he had seen approach Embry’s car. He confirmed to the police that
defendant was the man he had seen shoot into the white car. Obyrne also made an in-court
identification of defendant as the shooter.

        BCPD Officer Jordan Barrons was dispatched to 213 Howland to secure the scene and
look for evidence. He testified that he found a nine-millimeter Taurus handgun in the backyard
of the house. Detective Todd Rathjen, a BCPD lab specialist and latent fingerprint identification
and comparison expert, testified that a fully identifiable latent fingerprint found on the gun’s
magazine matched that of defendant’s left index finger. Firearms and tool marks expert Jeffrey
Amley testified that the undamaged bullet removed from Embry’s body and a spent shell casing
recovered from Embry’s car came from the gun recovered at 213 Howland. BCPD Detective
Scott Eager, an expert in extracting information from mobile devices, testified that a photograph
of a handgun found on defendant’s cell phone was consistent with the gun found at 213
Howland.

                                          II. ANALYSIS

                                A. EXCULPATORY EVIDENCE

        Defendant first contends that his trial counsel rendered constitutionally ineffective
assistance by failing to present exculpatory evidence that would have shown that he did not shoot
Embry. BCPD Officer Ziegler testified that, before becoming unresponsive, Embry told him that
“someone had come out of the woods and shot him,” and that “he didn’t know who it was.”
Defendant contends that his trial counsel was constitutionally ineffective for failing to present
evidence that he and Embry had known each other for a long time and regularly socialized
together. Defendant contends that such evidence would have been “powerful evidence of
[defendant’s] innocence” and that there is a reasonable probability that, had counsel presented
said evidence, the outcome of the trial would have been different.

        “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). A
trial court’s findings of fact are reviewed for clear error, while questions of constitutional law are
reviewed de novo. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). Given the
absence of a Ginther hearing, our review is limited to errors apparent on the record. People v




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Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008). However, the trial court record has been
expanded by the Court’s admission pursuant to MCR 7.216(4)1 of three affidavits that defendant
submitted with a motion to this Court to remand the matter for a Ginther hearing. The affidavits
are from Shawn Patterson, Marie Taylor, and Christina Taylor, respectively, defendant’s cousin,
sister, and mother. All three affiants averred that defendant and Embry had known each other for
years, and stated, “[i]n late 2014, when Mr. Embry was killed, he and Mr. Taylor still had regular
contact, and would socialize together at parties.”

       The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const, Am VI; Const 1963, art 1, § 20, entails the right to effective assistance of counsel. People
v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). To establish ineffective assistance of
counsel, a defendant must show that “(1) counsel’s performance fell below an objective standard
of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich at
51. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. Vaughn, 491 Mich at 670.

        Defendant’s argument on appeal assumes that Embry saw the person who shot him, and
that, having seen his face, concluded that he did not know his assailant. This assumption finds
no support in the record. On the contrary, Obyrne testified that the shooter approached Embry’s
car from the rear, stood at an angle to the car, and reached the hand holding the gun into the car.
Testimony from the medical examiner established that one of the fatal bullets entered Embry’s
body “a little bit posterior on the [left] shoulder” and “came forward through the lung,” while the
other bullet entered “right on the back of the shoulder.” The testimony of Obyrne and the
medical examiner support the notion that the gunman positioned himself slightly behind Embry,
making it unlikely that Embry saw the gunman’s face. Embry’s own words confirm that he did
not see the gunman. Embry said that “someone” came out of the woods and he did not know
who “it” was. Embry statement indicates that he did not see the shooter well enough to detect
whether the perpetrator was male or female. Further, there is no indication that defendant or any
of the affiants informed defendant’s trial counsel of defendant’s acquaintance with Embry and
that the affiants would have been willing to testify to it at trial to exonerate defendant. Certainly,
trial counsel “ ‘has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.’ ” People v Grant, 470 Mich 477, 485; 684
NW2d 686 (2004), quoting Strickland v Washington, 466 US 668, 691; 104 S Ct 2052, 2066; 80
L Ed 674 (1984). However, as the phrase “assistance of counsel” suggests, one might
reasonably expect defendant to have participated in his own defense and to have mentioned his
long acquaintance with the man the prosecutor accused him of shooting. In light of these factors,
we cannot conclude that trial counsel rendered constitutionally ineffective assistance by failing to
call defendant’s relatives to testify to his acquaintance with Embry.




1
  MCR 7.216(4) allows the Court “in its discretion, and on terms it deems just [to] permit
amendments, corrections, or additions to the transcript or record.” Here, the Court admitted the
affidavits in lieu of granting defendant’s motion for remand for a Ginther hearing.


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        Moreover, were we to assume that defense counsel’s performance “fell below an
objective standard of professional reasonableness,” defendant cannot demonstrate that, but for
counsel’s alleged error, the outcome of the trial would have been different. The police had
substantial evidence linking defendant to the crime, including: (1) Obyrne’s eyewitness
testimony; (2) testimony from two police officers that their canine track led from where the
shooter was last seen to defendant’s location; (3) testimony from these two officers that
defendant was found wearing clothing similar to the clothing both Obyrne and Brown observed
the shooter wearing; and (4) testimony from several police officers and experts linking the
recovered gun to defendant and to the murder. Thus, even if defense counsel had called
defendant’s cousin, sister, and mother to testify to defendant’s acquaintance with Embry, we
cannot say that there is a reasonable probability that the outcome of the trial would have been
different. Trakhtenberg, 493 Mich at 51. Consequently, he has not overcome his heavy burden
of proving that defense counsel rendered constitutionally ineffective assistance. Vaughn, 491
Mich at 670.

                                     B. IDENTIFICATION

       Defendant also contends that his due-process right was violated, and his trial counsel
rendered constitutionally ineffective assistance by failing to object to, and move for suppression
of, Obyrne’s in-court identification of defendant as the gunman. Defendant asserts that Obyrne
based his in-court identification on the unduly suggestive on-scene identification of defendant on
the night of the shooting, and that Obyrne did not have an independent basis for identification.
We disagree.

         To 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.’ ” People v Williams,
244 Mich App 533, 542; 624 NW2d 575 (2001), quoting People v Kurylczyk, 443 Mich 289,
302; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.). An on-scene identification that occurs
shortly after a crime “to obtain reliability in the apprehension of suspects” is not necessarily
improper. People v Libbett, 251 Mich App 353, 362; 650 NW2d 407 (2002). “Prompt, on-the-
scene identifications 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.’
” Id. at 359, quoting People v Winters, 225 Mich App 718, 728; 571 NW2d 764 (1997). “[O]ne
of the main benefits of prompt on-the-scene identifications,” the Court explained, “is to obtain
reliability in the apprehension of suspects, which insures both that the police have the actual
perpetrator and that any improvidently detained individual can be immediately released.”
Libbett, 251 Mich App at 362.2



2
  In the context of considering the constitutional right to counsel, Winters explained, “[t]he
concerns associated with . . . a stationhouse lineup are simply absent where the police promptly
apprehend a suspect and return him to the scene of the crime for identification by the victim.”
Winters, 225 Mich App at 725.


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         In this case, having Obyrne identify defendant at the scene was consistent with the police
need “to obtain reliability in the apprehension of suspects.” Id. Obyrne saw the gunman’s face
and noticed the distinctive clothing he was wearing. Additionally, he told police where he had
last seen the gunman, which allowed police to track the gunman to a house, where they found
defendant sitting on the house’s porch. Because Obyrne had seen the perpetrator commit the
crime just 10 minutes earlier, the perpetrator’s appearance was still fresh in Obyrne’s mind.
Identification of defendant as the man he had seen shoot Embry confirmed the reliability of the
results of the tracking procedure and, thus, the police’s apprehension of defendant. It is true that
police were standing around defendant; but this is not incongruous behavior, considering that
they had just detained defendant, nor is there any indication that police were acting for reasons
other than to determine whether defendant had committed the crime or was just an unfortunate
victim of circumstance. See id. at 363. Furthermore, evidence linking the gun recovered from
the backyard of the house where defendant was found to both defendant and Embry confirms the
reliability of Obyrne’s identification of defendant as the man he had seen shoot Embry. In light
of the totality of the circumstances, we cannot say that the on-scene identification “led to a
substantial likelihood of misidentification.” Williams, 244 Mich App at 542. Therefore, we find
no violation of defendant’s right to due process.

        Because we conclude that the on-the-scene identification was not improper, we also
conclude that defense counsel did not render constitutionally ineffective assistance by failing to
object to Obyrne’s in-court identification of defendant on the basis that it had been tainted by the
on-the-scene identification. Counsel is not ineffective for failing “to advocate a meritless
position.” People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005) (quotation marks and
citation omitted).

                                       III. CONCLUSION

        We conclude that defendant has not met his heavy burden to prove that his trial counsel
rendered constitutionally ineffective assistance. Defendant bases his contention that testimony
from his relatives about his acquaintance with Embry would have exonerated him on an
assumption not supported by the record. Further, even if his relatives had testified, substantial
evidence linked him to the gun used to murder Embry; therefore, there is no reasonable
likelihood that, but for counsel’s alleged deficient performance, the outcome of the proceedings
would have been different. Obyrne’s on-the-scene identification of defendant as the shooter did
not violate defendant’s right to due process because it happened soon after the incident and for a
proper purpose.

       Affirmed.



                                                             /s/ Michael J. Talbot
                                                             /s/ Jane M. Beckering
                                                             /s/ Michael J. Kelly




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