                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re DEMONTE JOSEPH SCOTT, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 25, 2017
               Petitioner-Appellee,

v                                                                   No. 330309
                                                                    Wayne Circuit Court
DEMONTE JOSEPH SCOTT,                                               Family Division
                                                                    LC No. 15-519406-DL
               Respondent-Appellant.


Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.

PER CURIAM.

        Respondent appeals as of right the order of disposition referring him to Wayne County
Child and Family Services for residential placement and care. He was adjudicated guilty of two
counts of armed robbery, MCL 750.529, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. We affirm.

       This case arises from an armed robbery. Respondent contends that the trial erred when it
admitted a printout from a website operated by Sprint that depicted the location of DE’s phone
following the robbery (the Sprint Locator Map). He specifically argues that the evidence was
inadmissible as hearsay, and that petitioner failed to lay a proper foundation to have the evidence
admitted under MRE 803(6). We agree, but we also determine that the error was harmless.

        “The decision whether to admit evidence falls within a trial court’s discretion and will be
reversed only when there is an abuse of that discretion.” People v Duncan, 494 Mich 713, 722;
835 NW2d 399 (2013), citing People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).
“The trial court abuses its discretion when its decision falls outside the range of principled
outcomes . . . .” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014). “A trial court
abuses its discretion when it makes an error of law in the interpretation of a rule of evidence.”
People v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015), citing Duncan, 494 Mich at 723.
“We review such questions of law de novo.” Jackson, 498 Mich at 257, citing Duncan, 494
Mich at 723. “If the court’s evidentiary error is nonconstitutional and preserved, then it is
presumed not to be a ground for reversal unless it affirmatively appears that, more probably than
not, it was outcome determinative—i.e., that it undermined the reliability of the verdict.”

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Jackson, 498 Mich at 257, quoting People v Douglas, 496 Mich 557, 565-566; 852 NW2d 587
(2014) (quotation marks omitted). “[T]he effect of the error is evaluated by assessing it in the
context of the untainted evidence to determine whether it is more probable than not that a
different outcome would have resulted without the error.” People v Lukity, 460 Mich 484, 495;
596 NW2d 607 (1999).

        “Under Michigan’s evidentiary rules, ‘hearsay’ is an unsworn, out-of-court statement that
is ‘offered in evidence to prove the truth of the matter asserted.’ ” People v Musser, 494 Mich
337, 350; 835 NW2d 319 (2013), quoting MRE 801(c) (citation omitted). “Under MRE 802,
hearsay is not admissible unless it ‘falls under one of the hearsay exceptions set forth in the
Michigan Rules of Evidence.’ ” Musser, 494 Mich at 350, quoting People v Stamper, 480 Mich
1, 3; 742 NW2d 607 (2007).

       MRE 803(6) is referred to as “the business records exception to the hearsay rule[.]”
People v Fackelman, 489 Mich 515, 536; 802 NW2d 552 (2011). MRE 803(6) provides, in
pertinent part:

       A memorandum, report, record, or data compilation, in any form, of acts,
       transactions, occurrences, events, conditions, opinions, or diagnoses, made at or
       near the time by, or from information transmitted by, a person with knowledge, if
       kept in the course of a regularly conducted business activity, and if it was the
       regular practice of that business activity to make the memorandum, report, record,
       or data compilation, all as shown by the testimony of the custodian or other
       qualified witness, or by certification that complies with a rule promulgated by the
       supreme court or a statute permitting certification, unless the source of
       information or the method or circumstances of preparation indicate lack of
       trustworthiness. [MRE 803(6).]

In Fackelman, 489 Mich at 536-537, the Michigan Supreme Court held that a psychiatry report
was not admissible under MRE 803(b) because a record keeper or other qualified witness did not
testify to establish the foundation for the report’s admission. MRE 902(11) provides, in relevant
part:

       (11) The original or a duplicate of a record, whether domestic or foreign, of
       regularly conducted business activity that would be admissible under rule 803(6),
       if accompanied by a written declaration under oath by its custodian or other
       qualified person certifying that-

              (A) The record was made at or near the time of the occurrence of the
              matters set forth by, or from information transmitted by, a person with
              knowledge of those matters;

              (B) The record was kept in the course of the regularly conducted business
              activity; and

              (C) It was the regular practice of the business activity to make the record.



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        “An erroneous admission of hearsay evidence can be rendered harmless error where
corroborated by other competent testimony.” People v Hill, 257 Mich App 126, 140; 667 NW2d
78 (2003), citing People v Van Tassel (On Remand), 197 Mich App 653, 655; 496 NW2d 388
(1992). “[T]he effect of the error is evaluated by assessing it in the context of the untainted
evidence to determine whether it is more probable than not that a different outcome would have
resulted without the error.” Lukity, 460 Mich at 495.

        Respondent contends that petitioner failed to lay a proper foundation for the admission of
the Sprint Locator Map. During the adjudication, petitioner’s counsel and respondent’s counsel
argued over the admissibility of that Map. Respondent’s counsel argued that the Map was not a
“certified record,” and therefore, it was “obviously not a business record[.]” The trial court did
not proceed by requesting that petitioner’s counsel provide a proper foundation for the record
through testimony from a custodian of the record or another qualified witness. Instead, the trial
court examined the record, and observed that it was a printout that listed a Sprint URL on the
bottom of the page. The trial court then ruled it would allow the Sprint Locator Map to be
admitted as a business record, and the trial court entered it into evidence as an exhibit.

        The trial court did not adhere to the requirements of MRE 803(6) when it admitted the
Sprint Locator Map without testimony from its custodian or another qualified witness, and when
there was no evidence presented that the Sprint Locator Map was a certified record. However,
this error was harmless because the Sprint Locator Map was not the only evidence that linked
respondent to the armed robbery. Both victims, DE and AA, testified during the adjudication.
DE identified respondent as the man who robbed her at gunpoint, and AA testified that
respondent could have been the man who robbed her. Additionally, a handgun was discovered in
respondent’s home. Further, respondent has failed to demonstrate how the admission of the
Sprint Locator Map affected the outcome of his adjudication. The Sprint Locator Map was the
basis of Officer Collrin’s testimony concerning the basis for the search warrant of respondent’s
home. Respondent has never contended that the search warrant was defective. Therefore,
reversal on the basis of this error is unwarranted.

        Respondent contends that the trial court erred when it admitted DE’s in-court
identification of respondent, and he also contends that her in-court identification violated his due
process rights because the in-court identification was impermissibly suggestive and there was no
independent basis supporting DE’s identification of respondent.

        “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), citing MRE 103(a)(1), People v Grant,
445 Mich 535, 545, 553; 520 NW2d 123 (1994), and People v Griffin, 235 Mich App 27, 44; 597
NW2d 176 (1999), overruled on other grounds by People v Thompson, 477 Mich 146, 148
(2007). Under MRE 103(a)(1), a party must make “a timely objection or motion to strike . . .
stating the specific ground of objection” to claim a ruling admitting evidence was erroneous.

        During the adjudication, respondent’s counsel made a motion to strike DE’s testimony
because petitioner did not provide a copy of the photographic lineup used to identify respondent
prior to the adjudication, and thus, respondent’s counsel argued that he was unable to effectively
cross-examine DE. The trial court ultimately denied the motion to strike. Therefore,

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respondent’s argument that the trial court erred when it admitted DE’s in-court identification of
respondent is preserved.

        Generally, an issue is preserved for appellate review when it is raised before and
addressed and decided by a trial court. People v Metamora Water Serv, Inc, 276 Mich App 376,
382; 741 NW2d 61 (2007), citing Hines v Volkswagen of America, Inc, 265 Mich App 432, 443;
695 NW2d 84 (2005). However, the remedy for an unduly suggestive identification is
suppression of the in-court identification, unless there was an independent basis for admission of
the identification. People v Gray, 457 Mich 107, 114 n 8; 577 NW2d 92 (1998) (citation
omitted). “A motion to suppress evidence must be made prior to trial or, within the trial court’s
discretion, at trial.” People v Gentner, Inc, 262 Mich App 363, 368; 686 NW2d 752 (2004),
quoting People v Carroll, 396 Mich 408, 411-412; 240 NW2d 722 (1976) (quotation marks and
citation omitted). During the adjudication, respondent did not argue that DE’s in-court
identification was unduly suggestive, nor did he argue that DE’s identification violated his right
to due process, and he did not make a motion to suppress DE’s in-court identification.
Therefore, respondent’s arguments that DE’s in-court identification was unduly suggestive and
violated his right to due process are unpreserved.

        “The trial court’s decision to admit identification evidence will not be reversed unless it
is clearly erroneous.” People v Harris, 261 Mich App 44, 51; 680 NW2d 17 (2004), citing
People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995). “Clear error exists if the
reviewing court is left with a definite and firm conviction that a mistake has been made.”
Harris, 261 Mich App at 51, citing People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480
(2002). However, “[t]his Court reviews unpreserved claims of error for plain error affecting the
defendant’s substantial rights.” People v Kissner, 292 Mich App 526, 541; 808 NW2d 522
(2011), citing People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130 (1999). To avoid
forfeiture under the plain error rule, the defendant must demonstrate that an error occurred, the
error was plain, and the plain error affected substantial rights. People v Buie, 285 Mich App
401, 407; 775 NW2d 817 (2009), citing Carines, 460 Mich at 763. “The third prong requires a
showing of prejudice, which occurs when the error affected the outcome of the lower court
proceedings.” People v Putman, 309 Mich App 240, 243; 870 NW2d 593 (2015), citing Carines,
460 Mich at 763.

         “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.

         On appeal, respondent contends that the photographic lineup the police conducted with
DE was a “logical impossibility” because there was no way for the police to have obtained his
photograph prior to his arrest, and therefore, the trial court should not have admitted DE’s
subsequent in-court identification of respondent. From that premise, respondent also contends
that it was “more likely than not” that petitioner failed to provide copies of the photographs used
in the lineup because respondent’s photograph could not possibly be in the lineup. Respondent
contends that the “logical impossibility” of the photographic lineup was evinced by these facts:
(1) the police did not possess respondent’s photograph, (2) his sister, AM, and his girlfriend,

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DM, testified that they heard DE express doubt over her identification of respondent prior to the
adjudication, (3) the police “conveniently ‘misplaced’ ” the photographic lineup prior to the
adjudication, (4) AA expressed doubt over whether respondent was the man who robbed her
during the adjudication, and (5) the police targeted respondent using circumstantial evidence.

         Respondent has failed to provide any evidence that establishes police misconduct took
place with regards to DE’s pretrial identification of respondent. Instead, respondent has merely
provided unfounded speculation. “An appellant 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 of an issue with little or no citation of supporting authority.” People v Clark, 315
Mich App 219, 233-234; 888 NW2d 309 (2016) (quotation marks and citation omitted).

        Regardless, respondent’s unfounded speculation is contrary to the record. The linchpin
of respondent’s theory is that it would have been impossible for the police to have obtained his
photograph prior to his arrest because he had no previous encounters with law enforcement, and
thus, the police would not be in possession of his photograph or name. But during the
adjudication, petitioner’s counsel explained that in juvenile cases when mug shots are
unavailable, social media photographs or school photographs are used. As for respondent’s
contention that it would have been impossible for the police to locate photographs prior to his
arrest because the police were unaware of his name, we note that police obtained the name of
respondent’s mother by examining calls made from DE’s phone after the armed robbery took
place. It is far from an impossibility to assume that the police then obtained respondent’s name
and photograph by cross-referencing public records to see if respondent’s mother had any
children that fit the description provided to police by DE and AA.

        Respondent also contends that DE’s in-court identification was impermissibly suggestive,
that there was no independent basis supporting her identification of respondent, and that the
identification violated respondent’s right to due process of law.

        “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) (citations omitted). “Most eyewitness identifications involve some
element of suggestion. Indeed, all in-court identifications do.” Perry, 565 US at 244. 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.

        Courts weigh the following factors when determining whether “an independent basis
exists 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), citing Gray,
457 Mich at 116.

                                                -5-
         Respondent contends that DE’s in-court identification was impermissibly suggestive
because he was seated next to his counsel during the adjudication, and due to the fact that DE
testified that she recognized respondent at school1 prior to the adjudication because she had
observed him at prior hearings before the trial court. Respondent’s argument is not congruent
with the record because DE testified that she recognized respondent at school “[b]ecause of who
he is.” Regardless, respondent’s argument is without merit. Respondent has failed to
demonstrate that DE’s in-court identification was tainted by improper state conduct, and he has
failed to establish that there was a substantial likelihood he was misidentified by DE.

         Even if this Court were to conclude that DE’s in-court identification was impermissibly
suggestive, her identification would have still been admissible because there was an independent
basis for her in-court identification. While DE did not have any prior relationship with
respondent or have prior knowledge of him, she had ample opportunity to observe respondent
while he robbed her. She testified that the robbery took place in close proximity to a functional
streetlight. DE also testified that respondent pressed his handgun into her side during the
robbery, and therefore, she was in very close to proximity to respondent during the robbery.
There is no indication in the record that DE’s initial description of respondent was inaccurate.
The only individual DE identified as the perpetrator of the armed robbery was respondent. She
even testified that she was “very sure” that she identified the man who robbed her during the
photographic lineup because she “took another photo and put it over his forehead like the hat,
and [she] was able to identify him,” and that she had “no doubt” that respondent was the man
who robbed her. Therefore, respondent has failed to demonstrate that the trial court erred when
it admitted DE’s in-court identification, or that DE’s in-court identification violated his right to
due process.

       Affirmed.



                                                             /s/ William B. Murphy
                                                             /s/ Christopher M. Murray
                                                             /s/ Michael J. Kelly




1
  Respondent testified that he began attending classes at DE’s school after he was released from
“juvenile.” We infer that respondent was referring to his release from a secure juvenile detention
facility.


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