                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 19, 2016
              Plaintiff-Appellee,

v                                                                  No. 324672
                                                                   Wayne Circuit Court
DARRELL MILES WALKER,                                              LC No. 14-006199-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 325195
                                                                   Wayne Circuit Court
LAFAYETTE DESHAWN UPSHAW,                                          LC No. 14-006199-FC

              Defendant-Appellant.


Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

        In Docket No. 324672, defendant Darrell Miles Walker appeals as of right his jury trial
conviction of armed robbery, MCL 750.529. The trial court sentenced Walker as a fourth
habitual offender, MCL 769.12, to 25 to 50 years’ imprisonment for the conviction. In Docket
No. 325195, defendant Lafayette Deshawn Upshaw appeals as of right his jury trial convictions
of armed robbery, carrying a dangerous weapon with unlawful intent, MCL 750.226, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The
trial court sentenced Upshaw to 18 to 40 years’ imprisonment for the armed robbery conviction,
1 to 5 years’ imprisonment for the dangerous weapon conviction, and 2 years’ imprisonment for
the felony-firearm conviction. We affirm.

                                          I. FACTS

       This case stems from the armed robbery of a gas station. In that business establishment,
the cashier’s work station was enclosed by a wall that had bullet proof glass built into it and a
door, which the cashier could utilize to access the customer area of the gas station. Walker

                                               -1-
entered the gas station around 3:30 a.m. on May 28, 2014, and asked the cashier for help locating
the coffee machine. The cashier testified that Walker was behaving strangely and that he did not
go straight to the coffee machine when she pointed to its location; instead, Walker circled around
some coolers and then made his way to the coffee machine. According to the cashier, Walker
then just stood at the coffee machine, so the cashier opened her access door, stepped out into the
customer area, and asked Walker if he needed assistance. Walker stood there silently, and the
cashier explained to him how to use the coffee machine. She then went back to her work station,
closing and locking the access door behind her.

        The cashier testified that two women were also in the gas station at the time and that one
of them came up to the counter, as Walker remained at the coffee machine. The cashier next
heard a man’s voice demanding money. The man, later identified as Upshaw, robbed the female
customer, who proceeded to run and hide behind some shelving. Upshaw then turned his
attention to the cashier, yelling at her to give him the money from the cash register, but she did
not comply. During the next few moments, Upshaw discharged his firearm six times in the
direction of the cashier and the enclosure and tried to knock and kick open the access door. The
cashier was shielded by the bullet proof glass, and Upshaw was unsuccessful in his attempt to
break into the cashier’s work station. The cashier noticed that during this intense altercation,
Walker remained standing at the coffee machine. She further observed that when Upshaw
pointed his gun in Walker’s general direction, Walker did not run. The cashier testified that
Walker shouted at her to open the access door, indicating that the cashier should do so in order to
simply end the situation and get Upshaw out of the gas station. The cashier, however, stood her
ground and did not comply. Upshaw gave up and ran out of the gas station. Walker then ran up
to the counter, told the cashier that she needed to call the police, and then fled in the same
direction as the shooter.

        A few hours later, Walker and Upshaw were arrested in the process of committing a
home invasion at a residence in Detroit. The pair were caught as they exited separate windows
of the house. Walker and Upshaw had attempted to steal several items of jewelry. The cashier
later identified both Walker and Upshaw in separate photographic lineups, indicating that Walker
had been the man standing at the coffee machine and that Upshaw had been the person who
brandished and discharged the firearm in the gas station. The gas station’s surveillance cameras
produced footage of the armed robbery, which was displayed to the jury. Defendants were
charged with the armed robbery and related crimes, but were not charged in these proceedings
with the home invasion offense. Evidence of defendants’ participation in the home invasion,
however, was presented at trial. At the trial, Walker’s defense was that he had merely been
present at the gas station during the armed robbery and thus was not guilty as an aider and
abettor, while Upshaw’s defense challenged the evidence placing him at the gas station during
the armed robbery.

                                    I. DOCKET NO. 324672

         On appeal, Walker first argues that the evidence was insufficient to support his armed
robbery conviction on an aiding and abetting theory, given that he was merely present at the gas
station when the robbery occurred. Because we find the issues interrelated, we will also address,
in the context of the sufficiency argument, Walker’s second argument on appeal, which is that
the trial court erred under MRE 401-403 by failing to exclude evidence of Walker’s participation
in the home invasion.
                                                -2-
        We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial
– in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of the crime. People v Carines,
460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable
theory of innocence, but need only prove the elements of the crime in the face of whatever
contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v
Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        “Every person concerned in the commission of an offense, whether he directly commits
the act constituting the offense or procures, counsels, aids, or abets in its commission may
hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly
committed such offense.” MCL 767.39. “The phrase ‘aids or abets’ is used to describe any type
of assistance given to the perpetrator of a crime by words or deeds that are intended to
encourage, support, or incite the commission of that crime.” People v Moore, 470 Mich 56, 63;
679 NW2d 41 (2004) (citation omitted). To show that a defendant engaged in aiding or abetting
the commission of a crime, the prosecution must establish the following elements:

              “(1) the crime charged was committed by the defendant or some other
       person, (2) the defendant performed acts or gave encouragement that assisted the
       commission of the crime, and (3) the defendant intended the commission of the
       crime or had knowledge that the principal intended its commission at the time he
       gave aid and encouragement.” [Carines, 460 Mich at 757 (citation omitted); see
       also People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006).]

       However, “[m]ere presence, even with knowledge that an offense is about to be
committed or is being committed, is not enough to make a person an aider or abettor; nor is mere
mental approval, passive acquiescence or consent sufficient.” People v Turner, 125 Mich App 8,
11; 336 NW2d 217 (1983); see also People v Norris, 236 Mich App 411, 419-420; 600 NW2d
658 (1999).

        In the instant case, the evidence was sufficient to show that Walker was not merely
present in the gas station at the time of the armed robbery but that he aided or abetted in the
robbery. Walker’s odd behavior in the gas station before and during the robbery, described
above, his lack of a normal reaction to the robbery, his attempt to convince the cashier to open
the access door, and his quick departure upon Upshaw’s exit from the gas station, all suggested
that Walker played a role in the armed robbery and was not merely present at the scene. The
evidence that removes any lingering doubt on the issue is Walker and Upshaw’s joint
participation in the home invasion a few short hours later. This evidence revealed that a
relationship existed between the two men, rendering any conduct by Walker at the gas station
                                               -3-
that arguably may have outwardly appeared innocent, damning and inculpatory. Taking into
consideration the evidence of Walker’s conduct at the gas station in conjunction with the home
invasion evidence, there existed sufficient circumstantial evidence that Walker encouraged,
supported, and assisted in the armed robbery, i.e., that he aided and abetted Upshaw in the
robbery. Reasonable inferences arising from the evidence include that Walker was “casing” or
surveilling the gas station, that he was attempting to distract the cashier, that his conduct had
been designed to lure the cashier from her work station and open the access door, which did
briefly occur, that he was there to help contain or address any unexpected interference with the
robbery, and/or that he was there to assist in completion of the robbery if Upshaw needed
assistance. Indeed, Walker’s attempt to convince the cashier to open the access door, in and of
itself, was evidence of him providing aid and assistance to Upshaw, as had Walker been
successful in essentially tricking the cashier into opening the door, Upshaw in all likelihood
would have been able to empty the cash register. In sum, the evidence, when viewed in a light
most favorable to the prosecution, with all conflicting evidence being resolved in favor of the
prosecution, was more than sufficient to support Walker’s conviction for armed robbery under an
aiding and abetting theory.1

        Next, in light of the importance of the evidence of the home invasion in showing a
relationship between Walker and Upshaw, said evidence was relevant, as it made it more
probable that Walker had aided and abetted Upshaw relative to the armed robbery – a disputed
fact that was of consequence to the determination of the armed robbery charge. MRE 401.
Moreover, the probative value of the home invasion evidence, which was high, was not
substantially outweighed by the danger of unfair prejudice. MRE 403.2 Accordingly, the
evidence concerning the home invasion was admissible. MRE 402. We note that Walker does
not argue that MRE 404(b) barred admission of the evidence and that, had he made the
argument, it would fail, because the evidence was not admitted to show Walker’s character or his
propensity to engage in criminal activity. People v Jackson, 498 Mich 246, 258-259; 869 NW2d


1
  In a brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4,
defendant also presents a sufficiency argument regarding the armed robbery conviction,
effectively raising the same issues that we have just rejected. Defendant further maintains that
counsel was ineffective for failing to move for a directed verdict on the armed robbery charge
because of the insufficiency of the evidence; however, counsel is not ineffective for failing to
raise a meritless or futile motion. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010).
2
  Although all relevant evidence is prejudicial to some extent, People v Murphy (On Remand),
282 Mich App 571, 582-583; 766 NW2d 303 (2009), evidence may be considered unfairly
prejudicial only if the evidence injects “considerations extraneous to the merits of the lawsuit,
e.g., the jury’s bias, sympathy, anger, or shock.” People v Pickens, 446 Mich 298, 337; 521
NW2d 797 (1994) (citation and quotation marks omitted). Unfair prejudice exists when there is
a probability that the evidence, which is minimally damaging in logic, will be weighed by the
jurors substantially out of proportion to its logically damaging effect, or when it would be
inequitable to allow the prosecution to utilize the evidence. Murphy, 282 Mich App at 583.
Here, there is no indication that the evidence injected considerations extraneous to the merits of
the case, or that the jury gave it undue or preemptive weight.

                                               -4-
253 (2015). Rather, the home invasion evidence was introduced for the proper purpose of
showing the existence of a connection or relationship between Walker and Upshaw.3 The trial
court did not abuse its discretion or otherwise err in admitting the evidence of the home invasion.
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

        Walker finally contends, in his standard 4 brief, that the trial court deprived him of a fair
trial by failing to properly instruct the jury on prior inconsistent statements used to impeach
witnesses. The trial court rejected Walker’s request to instruct the jury pursuant to M Crim JI
4.5, which addresses prior inconsistent statements made by witnesses and directs jurors to only
consider such statements with respect to deciding whether a witness testified truthfully in court
and not as substantive evidence. On appeal, defendant fails to actually identify any prior
inconsistent statements made by the cashier or any other witness used for impeachment, nor can
we locate any. The trial court is not required to give a requested instruction when it is
unsupported by the evidence or record. People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995).
Accordingly, the trial court did not abuse its discretion in determining that the omitted
instruction concerning prior inconsistent statements was inapplicable to the facts of the case.
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).

                                   III. DOCKET NO. 325195

        Upshaw first argues that the trial court abused its discretion in granting the prosecutor’s
motion to endorse a key witness – the owner of the house involved in the home invasion – on the
second day of trial over Upshaw’s objection. Assuming that the prosecutor lacked good cause to
add the witness at such a late date, MCL 767.40a(4), and that the trial court abused its discretion
in allowing the late endorsement and the home owner to testify, Upshaw has not demonstrated
that the court’s ruling resulted in any prejudice, People v Callon, 256 Mich App 312, 328; 662
NW2d 501 (2003). Upshaw has failed to meet that burden, presenting only a vague argument
that he was “deprived of a fair trial and denied the opportunity to develop an adequate defense.”
The home owner briefly testified about the condition of her house as damaged by the intruders
and the items taken in the home invasion, indicating that defendants did not have her permission
to enter the house. Prior to her testimony, two police officers who responded to the home
invasion testified about observing a broken window, apprehending Walker and Upshaw after
they climbed out of or leaped from windows, and finding jewelry on Walker, which evidence
plainly revealed that a home invasion had occurred. The home owner’s testimony added little



3
 In People v Mardlin, 487 Mich 609, 615-616; 790 NW2d 607 (2010), the Michigan Supreme
Court stated:
               Evidence relevant to a noncharacter purpose is admissible under MRE
       404(b) even if it also reflects on a defendant's character. Evidence
       is inadmissible under this rule only if it is relevant solely to the defendant's
       character or criminal propensity. Stated another way, the rule is not exclusionary,
       but is inclusionary, because it provides a nonexhaustive list of reasons to properly
       admit evidence that may nonetheless also give rise to an inference about the
       defendant's character. [Citations omitted.]


                                                -5-
and certainly did not prejudice Upshaw in light of the untainted and unchallenged police
testimony about the home invasion.

        Upshaw next contends that he was denied a fair trial when the trial court allowed the
admission of testimony that Upshaw had refused to participate in a live lineup. We first hold that
Upshaw’s refusal to participate in the lineup did not implicate his Fifth Amendment privilege
against self-incrimination. United States v Wade, 388 US 218, 222-223; 87 S Ct 1926; 18 L Ed
2d 1149 (1967); People v Benson, 180 Mich App 433, 437; 447 NW2d 755 (1989), rev’d in part
on other grounds 434 Mich 903 (1990). In Wade, 388 US at 222-223, the United States Supreme
Court observed:

                We have no doubt that compelling the accused merely to exhibit his
       person for observation by a prosecution witness prior to trial involves no
       compulsion of the accused to give evidence having testimonial significance. It is
       compulsion of the accused to exhibit his physical characteristics, not compulsion
       to disclose any knowledge he might have. It is no different from compelling . . . a
       blood sample or [a defendant] to wear the blouse, and, as in those instances, is not
       within the cover of the privilege. Similarly, compelling Wade to speak within
       hearing distance of the witnesses, even to utter words purportedly uttered by the
       robber, was not compulsion to utter statements of a “testimonial” nature; he was
       required to use his voice as an identifying physical characteristic, not to speak his
       guilt. We [have] held . . . that the distinction to be drawn under the Fifth
       Amendment privilege against self-incrimination is one between an accused's
       “communications” in whatever form, vocal or physical, and compulsion which
       makes a suspect or accused the source of real or physical evidence. We
       recognized that both federal and state courts have usually held that . . . the
       privilege[] offers no protection against compulsion to submit to fingerprinting,
       photography, or measurements, to write or speak for identification, to appear in
       court, to stand, to assume a stance, to walk, or to make a particular gesture. None
       of these activities becomes testimonial within the scope of the privilege because
       required of the accused in a pretrial lineup. [Citations, quotation marks, and
       ellipsis omitted.]

        Upshaw, however, maintains that the evidence was irrelevant and unduly prejudicial. We
find Upshaw’s reliance on drunk driving cases inapposite, considering that statutory language
played a role in those decisions. See, e.g., People v Reeder, 370 Mich 378; 121 NW2d 840
(1963); People v Duke, 136 Mich App 798; 357 NW2d 775 (1984); MCL 257.625a(9). We tend
to believe that evidence of a refusal to participate in a lineup is akin to evidence of flight from a
crime scene, which is admissible to support an inference of consciousness of guilt. See People v
Goodin, 257 Mich App 425, 432; 668 NW2d 392 (2003) (addressing flight); see also United
States v Ashburn, 76 F Supp 3d 401, 445 (ED NY, 2014); People v Alexander, 49 Cal 4th 846,
924-925; 113 Cal Rptr 3d 190; 235 P2d 873 (2010) (evidence that the defendant refused to
participate in a lineup was admissible to show his consciousness of guilt). Regardless, we agree
with the prosecution that, assuming error, Upshaw has not established prejudice, where the
cashier identified him in a photographic array, where the jury observed video surveillance
footage of the robbery, and where Upshaw was caught with Walker a few hours later during the
home invasion. MCL 769.26; Lukity, 460 Mich at 495.

                                                -6-
        Next, Upshaw contends that he was deprived of his Sixth Amendment right to the
effective assistance of counsel, where counsel failed to investigate potential alibi witnesses and
failed to file the required notice of intent to present an alibi defense, MCL 768.20.4 At trial,
Upshaw called to the stand the manager of a restaurant where Upshaw was employed at the time
of the robbery, and the manager testified that he drove Upshaw home at the end of his shift,
dropping him off about 15 minutes before the robbery was committed. The manager, however,
did not know Upshaw’s whereabouts at the exact time of the robbery. On appeal, Upshaw
argues that he remained home after being dropped off by the manager and that his aunt,
grandmother, and girlfriend were also present at the home at the time. Upshaw attached his own
affidavit to his appellate brief in an attempt to support his contention, merely implying that these
three individuals could have provided him an alibi defense. However, Upshaw did not attach
any affidavits from his aunt, grandmother, or girlfriend attesting to the claims, nor is there
anything in the lower court record pertaining to alibis given by these individuals. In a second
motion to remand filed with this Court, Upshaw had attached a document purportedly signed by
his aunt, which did not meet the requirements of an affidavit, MCR 2.119(B), but his aunt merely
asserted, “I was a alibi witness to some events that happened on May.” This nonsensical
statement did not provide an alibi. Upshaw had further attached a document purportedly signed
by his grandmother, which also did not meet the requirements of an affidavit, MCR 2.119(B),



4
  Whether counsel was ineffective presents a mixed question of fact and constitutional law,
which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884
(2001), our Supreme Court, addressing the basic principles governing a claim of ineffective
assistance of counsel, stated:

               To justify reversal under either the federal or state constitutions, a
       convicted defendant must satisfy the two-part test articulated by the United States
       Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
       2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
       (1994). “First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
       supra at 687. In so doing, the defendant must overcome a strong presumption that
       counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
       defendant must show that the deficient performance prejudiced the defense.” Id.
       at 687. To demonstrate prejudice, the defendant must show the existence of a
       reasonable probability that, but for counsel’s error, the result of the proceeding
       would have been different. Id. at 694. “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Id. Because the defendant
       bears the burden of demonstrating both deficient performance and prejudice, the
       defendant necessarily bears the burden of establishing the factual predicate for his
       claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

       An attorney’s performance is deficient if the representation falls below an objective
standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).

                                                -7-
and his grandmother asserted that Upshaw had arrived home around the same time as claimed by
Upshaw’s manager or a few minutes later. The document implied or suggested that Upshaw
remained at the home for several hours, but it did not expressly provide so, nor did his
grandmother state that she observed him at the exact time of the robbery. Assuming that it is
even proper to consider these flawed documents, Upshaw has simply failed to show that
counsel’s performance fell below an objective standard of reasonableness relative to alibi
witnesses and a notice of alibi, and he has not established the requisite prejudice.

        Upshaw next contends that the trial court abused its discretion when it denied his request
for an adjournment to accommodate his newly-retained attorney. This argument is premised on
the claimed need for time so that new counsel could have investigated and properly presented an
alibi defense. Given our previous discussion, the alibi claims are unavailing. Upshaw has not
shown that good cause existed as was necessary to grant a continuance or adjournment, and the
trial court did not abuse its discretion in denying the adjournment request. People v Coy, 258
Mich App 1, 17-18; 669 NW2d 831 (2003).

        Upshaw additionally argues that the prosecutor improperly exercised peremptory
challenges, dismissing African-American members of the jury pool in violation of Batson v
Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). “Under the Equal Protection
Clause of the Fourteenth Amendment, a party may not exercise a peremptory challenge to
remove a prospective juror solely on the basis of the person’s race.” People v Knight, 473 Mich
324, 335-336; 701 NW2d 715 (2005) (citations omitted). Our Supreme Court in Knight stated
that Batson “announced a three-step process for determining the constitutional propriety of a
peremptory challenge.” Knight, 473 Mich at 336. “First, the opponent of the peremptory
challenge must make a prima facie showing of discrimination.” Id. With respect to this first
step, we review for clear error any underlying factual findings, while related questions of law are
subject to de novo review. Id. at 343. “Second, if the trial court determines that a prima facie
showing has been made, the burden shifts to the proponent of the peremptory challenge to
articulate a race-neutral explanation for the strike.” Id. at 337. “[T]he de novo standard governs
appellate review of . . . [this] second step.” Id. at 344. “Finally, if the proponent provides a race-
neutral explanation as a matter of law, the trial court must then determine whether the race-
neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful
discrimination.” Id. at 337-338. “[T]he clear error standard governs appellate review of a trial
court’s resolution of . . . [this] third step.” Id. at 345.

        In the instant case, after the prosecutor exercised multiple peremptory challenges,
Upshaw’s attorney informed the trial court that he had a motion to make. The trial court excused
the veniremembers and those remaining in the jury pool. Upshaw’s counsel then presented a
Batson challenge, arguing that six of the eight peremptory challenges exercised by the prosecutor
pertained to African-Americans; both defendants are African-American. Walker’s attorney
indicated that he would join in the motion. Other than noting the number of peremptory
challenges exercised by the prosecutor and the race of those excused veniremembers, the defense
attorneys did not provide any additional argument in support of making a prima facie case of
discrimination. The trial court, failing to indicate whether defendants had made the required
prima facie showing of discrimination, asked the prosecutor whether she had any response as to
why the African-American veniremembers were excused. The prosecutor then provided race-
neutral explanations for the strikes in regard to four of the African-American veniremembers.
Before the prosecutor could continue with her explanations concerning the remaining two
                                                 -8-
African-American veniremembers, the trial court interjected, asking Upshaw’s counsel whether
he had any response. Upshaw’s attorney then began addressing and challenging the race-neutral
explanation given by the prosecutor in regard to one of the stricken veniremembers. The trial
court quickly chimed in, “Yes, but are you saying that’s a pretext to get her off the jury because
she’s black?” Upshaw’s counsel replied in the affirmative, at which point the trial court queried,
“Anything else?” Upshaw’s attorney replied, “No, your Honor.” Walker’s attorney also
indicated that he had nothing to add.

       Next, the trial court ruled:

               Well, the [p]rosecutor has given some explanation other than race being
       challenged. I don’t think the Batson motion can be sustained. I don’t have any
       further comments on whether it’s good or bad. . . . .

        After some further discussion on the matter, Upshaw’s attorney began challenging the
race-neutral explanation given by the prosecutor regarding another veniremember, but the trial
court interrupted, making clear that it had denied the Batson motion.

        In Knight, 473 Mich at 339, our Supreme Court counseled the bench with respect to
Batson challenges, stating that “trial courts must meticulously follow Batson's three-step test,
and we strongly urge our courts to clearly articulate their findings and conclusions on the
record.” The Court further noted that “[w]hen a trial court methodically adheres to Batson's
three-step test and clearly articulates its findings on the record, issues concerning what the
trial court has ruled are significantly ameliorated.” Id. at 338-339. Here, unfortunately, the trial
court failed to adhere to the directive announced by the Knight Court a decade earlier.

        With respect to the first step, i.e., whether defendants made a prima facie showing of
discrimination, actual proof of discrimination is not required. Id. at 336. And, given that there is
no dispute that the veniremembers at issue in this case were members of a cognizable racial
group and that peremptory challenges were exercised to exclude them from the jury, the question
in regard to step one becomes whether all of the relevant circumstances raised an inference that
the prosecutor struck the excluded veniremembers on the basis of race. Id. The trial court’s
statements on the bench failed to expressly indicate whether it found that defendants had made a
prima facie case of discrimination. Although such a finding might be implied because the court
asked the prosecutor to articulate explanations for why veniremembers were stricken, the court’s
ruling is ultimately unclear and muddled on the matter. We cannot conclude, on the existing
record, that defendants made a prima facie showing or case of racial discrimination. While not
binding precedent, we find persuasive the following discussion by the United States Court of
Appeals for the Eleventh Circuit in United States v Ochoa-Vasquez, 428 F3d 1015, 1044 (CA 11,
2005):

               In order to determine whether a Batson objector . . . has established a
       prima facie case of discrimination, courts must consider all relevant
       circumstances. This Court has cautioned that the mere fact of striking a juror or a
       set of jurors of a particular race does not necessarily create an inference of racial
       discrimination. While statistical evidence may support an inference of
       discrimination, it can do so only when placed in context. For example, the number
       of persons struck takes on meaning only when coupled with other information

                                                -9-
         such as the racial composition of the venire, the race of others struck, or the voir
         dire answers of those who were struck compared to the answers of those who
         were not struck. . . . . [Citations and quotation marks omitted.]

        The Eleventh Circuit observed that pertinent circumstances to consider include the racial
composition of remaining potential jurors, “the percentage of jurors of a particular race or
ethnicity struck and the percentage of their representation on the venire,” whether members of
the relevant racial group served unchallenged on the jury, and whether the prosecutor used all or
nearly all of his or her challenges to strike veniremembers of a particular race. Id. at 1044-1045.
Here, the only argument posed by defense counsel during voir dire was that six of eight
peremptory challenges exercised by the prosecutor concerned veniremembers of the same race as
defendants. Neither Walker nor Upshaw’s attorney made a record regarding any other
surrounding circumstance, such as those alluded to in Ochoa-Vasquez, nor are we able to discern
from the existing record whether additional relevant facts or circumstances were present, e.g.,
information regarding the percentage of African-American jurors on the venire. Assuming that
the trial court found that defendants had made a prima facie case of discrimination, it erred in
that part of its analysis. Absent a prima facie showing of discrimination, the remaining two steps
in the Batson analysis are rendered moot.5 Reversal is unwarranted.

        Finally, Upshaw maintains that the trial court erred when it assessed offense variable
(OV) 14, MCL 777.44, at 10 points, which is the proper score when “[t]he offender was a leader
in a multiple offender situation,” MCL 777.44(1)(a). The trial court assessed 10 points because
“[t]he proofs showed that Mr. Upshaw entered the gas station and began firing multiple shots.”
Upshaw argues that this evidence did not support the conclusion that he was the leader, as
between himself and Walker. Although Upshaw alludes to our Supreme Court’s ruling in People
v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), he ultimately does not contend that he is
entitled to a Crosby remand6 under Lockridge. With respect to OV 14, in People v Rhodes (On
Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014), the trial court relied on the fact that the
defendant had the gun and not the codefendant in assessing 10 points, and this Court reversed,
ruling:

                 The Legislature did not define by statute what constitutes a leader for the
         purposes of OV 14. We have not found any binding caselaw defining “leader” in
         this context. Consequently, we turn to the dictionary. According to Random
         House Webster's College Dictionary (2001), a “leader” is defined in relevant part
         as “a person or thing that leads” or “a guiding or directing head, as of an army or
         political group.” To “lead” is defined in relevant part as, in general, guiding,
         preceding, showing the way, directing, or conducting. The evidence
         unequivocally supports the trial court's factual determination that defendant


5
  That said, we do note that the prosecutor provided race-neutral explanations with respect to
four of the struck African-American veniremembers before being cut off by the trial court, and
the defense attorneys only spoke in regard to one or two of those veniremembers for purposes of
claiming pretext.
6
    This is a reference to United States v Crosby, 397 F3d 103 (CA 2, 2005).

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       possessed a gun and the only other person involved in the criminal transaction did
       not. However, the evidence does not show that defendant acted first, gave any
       directions or orders to [the codefendant], displayed any greater amount of
       initiative beyond employing a more dangerous instrumentality of harm, played a
       precipitating role in [the codefendant’s] participation in the criminal transaction,
       or was otherwise a primary causal or coordinating agent.

              We remain of the opinion that defendant's exclusive possession of a gun
       during the criminal transaction is some evidence of leadership, however it does
       not meet the preponderance of the evidence standard . . . . [Citation omitted.]

        The instant case can be distinguished from Rhodes. Here, Upshaw not only possessed a
gun, he repeatedly and violently discharged the weapon. Further, while Walker may have been
surveilling the gas station, it was Upshaw who ultimately acted first with respect to actually
perpetrating and committing the armed robbery. Also, it was Upshaw who made demands of and
robbed the female customer, it was Upshaw who ordered the cashier to give him the money from
the cash register, and it was Upshaw who attempted to kick or break down the access door, all
while Walker, for the most part, sat back and observed from a distance. And, Walker followed
Upshaw out of the gas station after the partially foiled robbery, as opposed to taking any
independent steps upon Upshaw’s departure to somehow complete the crime. For purposes of
actually carrying out the robbery, Upshaw outwardly displayed the greater amount of initiative.
Although there are unknowns regarding the nature of the relationship between the two
defendants, we cannot conclude on the basis of the evidence and reasonable inferences arising
therefrom that the trial court clearly erred in finding by a preponderance of the evidence that
Upshaw was the leader with respect to the armed robbery. People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013).

       Affirmed.



                                                            /s/ William B. Murphy
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Amy Ronayne Krause




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