            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 19, 2019
               Plaintiff-Appellee,

v                                                                    No. 344143
                                                                     Macomb Circuit Court
JOHN EARL PIERCE,                                                    LC No. 2017-004528-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of armed robbery, MCL 750.529, and the trial court
sentenced him as a fourth habitual offender to 25 to 40 years’ imprisonment. Defendant
contends that the victim’s in-court identification was “tainted” by an overly suggestive pretrial
identification procedure, that the court should have declared a mistrial based on a police officer’s
reference to defendant’s “booking” photo from an unrelated case, and that he is entitled to
resentencing without a habitual offender enhancement as the prosecutor did not properly serve
notice. We discern no error and affirm.

                                       I. BACKGROUND

       A man wearing a black face mask, black leather jacket, and black hood robbed at
gunpoint the office at a Public Storage facility at approximately 4:50 p.m. on October 30, 2017.
The manager, Ashley McGee, testified that the robber had “bright blue” eyes and was
approximately 5’9. Investigating officers found a security camera at a nearby business that
captured the Public Storage parking lot. Around the time of the robbery, a silver sedan pulled
up, a man exited from the passenger side door, and walked toward the office. Four minutes later,
the man ran back to the car, entered, and the car sped away. The man depicted in the footage
was not wearing the mask, but his face was not clear either. McGee indicated that the man in the
footage was dressed like the man who robbed her.

       The investigating officer disseminated still shots of the man and the silver vehicle from
the security footage. Another officer recognized the man and vehicle from a traffic stop five
days before the robbery and was able to identify the individual by name as defendant. From


                                                -1-
there, the investigating officer tracked down the vehicle owner, Gail Wodarski, who confirmed
that her cousin (defendant) and his girlfriend, Misty Burgess, were using her vehicle both at the
time of the traffic stop and the robbery. Wordarski identified her vehicle in the security footage
as it was missing the bumper and had replacement rims. She also identified the man in the
footage as defendant as she recognized his walk and clothing.

        After his arrest, defendant expressed desire to stop Burgess’s prosecution. Defendant
indicated that “he had picked up a hooker” that day and the hooker was “driving the car,” not
Burgess.

                              II. IDENTIFICATION PROCEDURE

        Defendant first argues that the trial court should have suppressed McGee’s in-court
identification of him. The in-court identification was tainted by unduly suggestive pretrial
identification procedures, defendant asserts, and McGee’s identification lacked an independent
basis. Defendant further contends that his trial counsel was ineffective for failing to move to
suppress the identification.

       On the day of defendant’s and Burgess’s preliminary examinations, the prosecutor met
with McGee at the courthouse. After instructing McGee about preliminary examination
procedures, the prosecutor asked McGee to describe the clothing worn by the robber. The
prosecutor then showed McGee a still shot from the security footage. McGee indicated that the
man in the photo was wearing clothes similar to the robber’s but that the person’s face in the
photo was too unclear to identify. The prosecutor did not conduct a photographic lineup or show
McGee any other photos. McGee later noted that the officer did not identify the person in the
photograph as defendant.

        McGee was present in the courtroom gallery while a group of criminal defendants waited
in the jury box for their matters to be heard. McGee observed defendant sitting at the defense
table with his attorney and heard him waive his preliminary examination. McGee was then
aware that defendant was the accused in her robbery—she knew the names of the two suspects
and heard defendant’s name announced in court. McGee remained in the courtroom after
deputies directed defendant to a seat in the first row of the jury box. McGee then testified at
Burgess’s preliminary examination. McGee was required to “walk[] past [defendant] to sit down
on the stand,” looked “[q]uickly” at defendant’s face, and recognized him as the robber. McGee
did not comment on her recognition of defendant at the time. Four months later, McGee
identified defendant as the robber at his trial. McGee asserted that defendant’s “bluish” eyes
gave him away, and she disagreed with defendant’s contradictory description of his eyes as
hazel.

        Our review of defendant’s challenge to the identification procedure is limited to plain
error affecting defendant’s substantial rights as he failed to object below. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). “Whether a defendant has been denied the effective
assistance of counsel is a mixed question of fact and constitutional law. Generally, a trial court’s
findings of fact, if any, are reviewed for clear error, and questions of law are reviewed de novo.”
People v Solloway, 316 Mich App 174, 187-188; 891 NW2d 255 (2016). Because no factual


                                                -2-
record was created in regard to defendant’s claims of ineffective assistance of counsel, our
review is limited to mistakes apparent on the record. Id.

        “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). “The fairness of an identification procedure is evaluated in light of
the total circumstances to determine whether the procedure was so impermissibly suggestive that
it led to a substantial likelihood of misidentification.” People v Hornsby, 251 Mich App 462,
466; 650 NW2d 700 (2002), superseded by statute in part on other grounds as stated in People v
Rodriguez, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 338914); slip op at 3.

       When examining the totality of the circumstances, relevant factors include: the
       opportunity for the witness to view the criminal at the time of the crime, the
       witness’[s] degree of attention, the accuracy of a prior description, the witness’[s]
       level of certainty at the pretrial identification procedure, and the length of time
       between the crime and the confrontation. [People v Colon, 233 Mich App 295,
       304-305; 591 NW2d 692 (1998).]

         “Most eyewitness identifications involve some element of suggestion. Indeed, all in-
court identifications do.” Perry v New Hampshire, 565 US 228, 244; 132 S Ct 716; 181 L Ed 2d
694 (2012). However, “[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. at 245. “[A]n improper
suggestion often arises when the witness . . . either is told or believes that the police have
apprehended the right person,” or “when the witness is shown only one person or a group in
which one person is singled out in some way”; in those instances, the witness “is tempted to
presume that he is the person.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998)
(cleaned up).1 “Showing a witness a single photograph is considered to be one of the most
suggestive photographic identification procedures.” People v Woolfolk, 304 Mich App 450, 457;
848 NW2d 169 (2014).

        “The fact that the prior confrontation occurred during the preliminary examination, as
opposed to a pretrial lineup or showup, does not necessarily mean that it cannot be considered
unduly suggestive.” Colon, 233 Mich App at 304. However, “[s]imply because an identification
procedure is suggestive does not mean it is necessarily constitutionally defective.” Id. If the
pretrial identification procedure was not unduly suggestive, “no independent basis for the
identification need be established.” People v Syakovich, 182 Mich App 85, 89; 452 NW2d 211
(1989). If the pretrial identification procedure was impermissibly suggestive, an “in-court
identification by the same witness still may be allowed if an independent basis for in-court
identification can be established that is untainted by the suggestive pretrial procedure.” People v


1
  This opinion uses the parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


                                                -3-
Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). This Court weighs the following factors
when determining whether there is an independent basis for the admission of an in-court
identification:

       (1) prior relationship with or knowledge of the defendant; (2) opportunity to
       observe the offense, including length of time, lighting, and proximity to the
       criminal act; (3) length of time between the offense and the disputed
       identification; (4) accuracy of description compared to the defendant’s actual
       appearance; (5) previous proper identification or failure to identify the defendant;
       (6) any prelineup identification lineup of another person as the perpetrator; (7) the
       nature of the offense and the victim’s age, intelligence, and psychological state;
       and (8) any idiosyncratic or special features of the defendant. [People v Davis,
       241 Mich App 697, 702-703; 617 NW2d 381 (2000).]

        It was not unduly suggestive for the prosecutor to show McGee a still photograph from
the security camera footage on the day of the preliminary examination. The prosecutor did not
inform McGee that the photograph was of defendant and provided no details about the source of
the image. McGee testified that she could not see the individual’s face in the photograph, only
his clothing. The clothing of the photographed individual appeared to be the clothing worn by
the robber. Because of the lack of clarity of the image, McGee asserted that she did not identify
defendant using that photograph. As such, McGee’s viewing of the photograph either was not
truly a pretrial identification procedure or was not so unduly suggestive as to lead to a substantial
likelihood of misidentification.

        McGee’s observation of defendant while she testified at Burgess’s preliminary
examination also was not unduly suggestive. McGee did not openly identify defendant at that
time and her viewing of defendant was merely incidental to providing testimony at Burgess’s
hearing. McGee’s required presence during that hearing was not part of a pretrial identification
procedure. Again, “[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.” Perry, 565 US at 245
(emphasis added). There was no improper state conduct that tainted McGee’s identification of
defendant at Burgess’s preliminary exam.

        Even if this was a pretrial identification procedure and was unduly suggestive, McGee’s
in-court identification would still be admissible because it was supported by a sufficient
independent basis. McGee observed the robber for approximately two minutes within arm’s
reach in the daylight. Although defendant had noticeable tattoos on his hands that McGee did
not describe, McGee testified that she only really looked at the robber’s eyes. McGee described
the robber’s eyes as “bright blue,” but noted that defendant’s eyes were only “bluish.”
Moreover, defendant is 6’2 while McGee described the robber as 5’9. McGee stated at trial that
she was not confident about her initial assessment of the robber’s height and described that he
was a “taller” man. Six months elapsed between the robbery and the identification and McGee
did not know defendant personally. These facts alone do not invalidate McGee’s independent
basis for identifying defendant as she had ample opportunity to view the perpetrator during the
robbery. Ultimately, where a witness does not identify a defendant in a pretrial lineup, the
witness’s in-court identification of a defendant is “a credibility issue that [is] properly before the

                                                 -4-
jury to determine.” People v Barclay, 208 Mich App 670, 676; 528 NW2d 842 (1995). The
discrepancies noted by defendant do not diminish the validity of the independent basis
supporting McGee’s identification of defendant. Rather, they pertain to the reliability of the
identification. As observed by the United States Supreme Court, “the jury, not the judge,
traditionally determines the reliability of evidence.” Perry, 565 US at 245.

        Defense counsel was not ineffective for failing to move to suppress McGee’s in-court
identification. As the identification was admissible and not tainted by unduly suggestive pretrial
identification procedures, any objection would have been unsupportable. “Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

                                 III. MOTION FOR MISTRIAL

        Defendant next contends that the trial court erred when it denied his motion for a mistrial.
During trial, Detective Gregory Booton testified that he obtained a copy of security camera
footage from the time of the robbery, showing a man exit the passenger side of a silver
automobile and running back to the vehicle approximately four minutes later. Detective Booton
described that he “disseminated” still shots from the recording and that Sergeant Ahmad Haidar
identified the man in the photographs as defendant and the automobile as one that he had
previously stopped. Detective Booton then found a photograph of defendant to compare with the
photograph of the man in the security footage. During trial, the prosecutor asked Detective
Booton “what date” the photograph was taken, and the detective replied that it was a “booking
photo” of defendant “from September 13, 2016.”

        Defense counsel moved to strike the word “booking” and also asked for a jury instruction
to disregard the reference. The trial court granted the motion and instructed the jury accordingly.
Defense counsel subsequently moved for a mistrial based on the prosecution’s “solicitation of an
extraordinarily prejudicial statement” that included the word “booking.” The court denied the
motion because it did “not believe that” the use of the word “booking” was “so unduly
prejudicial that a mistrial [was] warranted.” Defendant maintains that a curative instruction was
insufficient to remedy the prejudice.

       “The trial court’s grant or denial of a mistrial will not be reversed on appeal in the
absence of an abuse of discretion. A mistrial should be granted only for an irregularity that is
prejudicial to the rights of the defendant, and impairs his ability to get a fair trial.” People v
Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995) (cleaned up). “A trial court should
only grant a mistrial when the prejudicial effect of the error cannot be removed in any other
way.” People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008).

       At the outset, defendant argues that the trial court should have excluded Detective
Booton’s reference to the “booking” photograph, as it constituted inadmissible other-acts
evidence under MRE 404(b)(1). However, the court did exclude the evidence by granting
defendant’s motion to strike. We can grant no further relief.

       Defendant also takes issue with Detective Booton’s testimony that he spoke with
defendant “at a police station for hours on matters not related to the case at hand,” and that

                                                -5-
Detective Booton discussed “his lengthy conversation with [defendant] at a police station”
during trial. However, defendant conflates the testimony of Detective Booton with the testimony
of Sergeant Haidar, who testified that he encountered defendant in October 2018, during a
“traffic stop,” and that he subsequently spoke with defendant for approximately two or three
hours “[a]t the 12th Precinct.” Defendant does not specifically address why Sergeant Haidar’s
testimony would be inadmissible, or how Sergeant Haidar’s testimony required the trial court to
grant a mistrial. A party “may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.” People v Henry, 315 Mich App 130, 148; 889
NW2d 1 (2016) (cleaned up). This challenge is therefore abandoned.

        Defendant asserts that the trial court erred when it denied his mistrial motion because the
curative instruction did not cure the prejudice caused by the “booking” remark and may have
amplified the prejudice. However, “[j]urors are presumed to follow instructions, and instructions
are presumed to cure most errors.” People v Petri, 279 Mich App 407, 414; 760 NW2d 882
(2008). Moreover, as a general rule, “an unresponsive, volunteered answer to a proper question
is not grounds for the granting of a mistrial.” Haywood, 209 Mich App at 228. Detective
Booton’s isolated stray remark, in and of itself, did not warrant a mistrial.

        Defendant also relies upon People v Page, 41 Mich App 99, 101-102; 199 NW2d 669
(1972), in which this Court held that a law enforcement officer’s unresponsive testimony that the
defendant was associated with narcotics trafficking provided a sufficient basis to declare a
mistrial because police officers normally command the respect of the jury, the remark was
unresponsive and irrelevant, the association of the defendant with drug traffic was inflammatory,
and there was a “less than strong case against the defendant.” Unlike in Page, there was
overwhelming evidence of defendant’s guilt in this case. The prosecution provided the jury with
a detailed outline of the investigatory steps that led to defendant’s identification as the robber.
Moreover, two days after his arrest, defendant essentially admitted his guilt to Detective Booton
while providing an alibi for Burgess.

                               IV. SENTENCE ENHANCEMENT

       Finally, defendant contends that he is entitled to resentencing without a habitual offender
enhancement as the prosecution failed to properly notify him of its intent to seek enhancement.
Defendant failed to preserve his challenge by raising it below and our review is limited to plain
error. Carines, 460 Mich at 763-764.

       MCL 769.13 provides, in relevant part:

       (1) In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under section 10, 11, or 12 of this chapter,
       by filing a written notice of his or her intent to do so within 21 days after the
       defendant’s arraignment on the information charging the underlying offense or, if
       arraignment is waived, within 21 days after the filing of the information charging
       the underlying offense.




                                                -6-
       (2) A notice of intent to seek an enhanced sentence filed under subsection (1)
       shall list the prior conviction or convictions that will or may be relied upon for
       purposes of sentence enhancement. The notice shall be filed with the court and
       served upon the defendant or his or her attorney within the time provided in
       subsection (1). The notice may be personally served upon the defendant or his or
       her attorney at the arraignment on the information charging the underlying
       offense, or may be served in the manner provided by law or court rule for service
       of written pleadings. The prosecuting attorney shall file a written proof of service
       with the clerk of the court.

Additionally, MCR 6.112(F) provides:

       A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list
       the prior convictions that may be relied upon for purposes of sentence
       enhancement. The notice must be filed within 21 days after the defendant’s
       arraignment on the information charging the underlying offense or, if arraignment
       is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the
       filing of the information charging the underlying offense.

        “Unambiguous language in a statute or court rule is enforced as written.” People v Head,
323 Mich App 526, 542; 917 NW2d 752 (2018). However, “[t]he purpose of the notice
requirement is to provide the accused with notice, at an early stage in the proceedings, of the
potential consequences should the accused be convicted of the underlying offense.” Id. at 543
(cleaned up). “The failure to file a proof of service of the notice of intent to enhance the
defendant’s sentence may be harmless if the defendant received the notice of the prosecutor’s
intent to seek an enhanced sentence and the defendant was not prejudiced in his ability to
respond to the habitual offender notification.” Id. at 543-544.2

        In December 2017, the prosecution filed a notice of intent to enhance defendant’s
sentence as a fourth habitual offender, but did not file a proof of service. Nonetheless, during
defendant’s January 2018 arraignment, defense counsel acknowledged “receipt of the [felony]
information and the witness list.” The trial court then asked defense counsel if he and the
prosecutor had spoken “about a potential resolution,” and the prosecutor replied, “Yes, but we
will probably not reach one. It’s a 25-year mandatory.” In other words, the prosecutor explained
that a plea agreement was unlikely given defendant’s mandatory minimum sentence, as a fourth
habitual offender pursuant to MCL 769.12, of 25 years’ imprisonment. During defendant’s
May 2018 sentencing hearing, defense counsel acknowledged that the trial court was required to
impose a mandatory minimum sentence of 25 years’ imprisonment because the prosecution “had


2
  Defendant acknowledges that Head is binding precedent pursuant to MCR 7.215(J)(1), but
argues that Head was wrongly decided. Defendant relies on the Michigan Supreme Court’s
order to hear arguments on an application for leave to appeal regarding whether the harmless
error test applies to violations of MCL 769.13’s notice requirements. The Supreme Court
subsequently denied leave in that case. People v Straughter, ___ Mich ___; 930 NW2d 384
(2019). The subject legal proposition in Head therefore remains good law.


                                               -7-
enhanced” defendant’s sentence “for crimes against a person” and this was defendant’s fourth
offense. Additionally, defendant asked the trial court to not “exceed the 25 years.”

         Even though the prosecution failed to file a proof of service, defendant was apprised of
the prosecutor’s intent to enhance his sentence as early as his arraignment. Therefore, the failure
to file a proof of service was harmless error.

       We affirm.



                                                            /s/ Christopher M. Murray
                                                            /s/ David H. Sawyer
                                                            /s/ Elizabeth L. Gleicher




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