                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 26, 2017
               Plaintiff-Appellee,

v                                                                  No. 328534
                                                                   Wayne Circuit Court
LAWRENCE THOMAS,                                                   LC No. 14-008684-01-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

        A jury convicted defendant, Lawrence Thomas, of first-degree felony murder, MCL
750.316(1)(b), two counts of assault with intent to commit murder, MCL 750.83, felon in
possession of a firearm, MCL 750.224f, escape from lawful custody, MCL 750.197a, and
possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
sentenced defendant to life imprisonment for the felony-murder conviction, and concurrent
prison terms of 25 to 40 years for each assault with intent to commit murder conviction, two to
five years for the felon-in-possession conviction, and one year for the escape from lawful
custody conviction, to be served consecutive to a two-year term of imprisonment for the felony-
firearm conviction. Defendant appeals as of right, and we affirm.

        Defendant’s convictions arise from a shooting incident during the early morning hours of
August 17, 2014, at Chevelles Bar & Grill (“Chavelles”) on the west side of Detroit. At closing
time, after the bar’s lights were turned on signaling that it was time to leave, Kenneth Davis and
his friends began to make their way toward the entrance. According to witnesses at trial,
defendant grabbed Davis’s designer glasses off his face. Defendant then produced a gun and
fired into the crowd. Davis was grazed by a bullet. Jessica Porter was fatally shot in the head.
Latris Rucker was also shot, but recovered from his injury.

        The defense theory at trial was that defendant was misidentified as the shooter. Neither
Davis nor the Chevelles bartender, Chaloea Smith, were able to identify defendant in a
photographic lineup, but they both identified defendant as the shooter at a subsequent corporal
lineup and at trial.




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                      I. ADMISSION OF IDENTIFICATION TESTIMONY

        Defendant argues that the trial court erred in denying his motion to suppress Davis’s and
Smith’s identification testimony. Defendant notes that Davis and Smith both failed to identify
him as the shooter in six-person photographic arrays, but that Smith identified him in a crowd
photo that was taken during the event at Chevelles, and that Smith and Davis both subsequently
identified him as the shooter at corporeal lineups. Defendant does not dispute that he was at the
club on the night of the shooting, nor did he seek to suppress Smith’s identification of him in the
crowd photographs. Rather, defendant argues that the corporeal lineups were impermissibly
suggestive identification procedures because he was the only person in the lineups whose photo
was included in the photo arrays that were previously viewed by Davis and Smith. Defendant
also contends that the lineups were impermissibly suggestive because the Chicago Bulls jersey
that he was wearing during the lineups linked him to the shooter, who was wearing a Chicago
Bulls baseball cap inside Chevelles. The trial court denied defendant’s motion to suppress after
conducting a Wade1 hearing. We affirm.

        We review for clear error a trial court’s decision on a motion to suppress identification
evidence, but review any underlying legal issues de novo. People v Kurylczyk, 443 Mich 289,
303; 505 NW2d 528 (1993); People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013).
“A lineup can be so suggestive and conducive to irreparable misidentification that it denies an
accused due process of law.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700
(2002). To successfully challenge an eyewitness identification on due process grounds, a
criminal 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 Kurylczyk, 443 Mich at 302. “If a witness is exposed to an impermissibly suggestive
pretrial identification procedure, the witness’ in-court identification will not be allowed unless
the prosecution shows by clear and convincing evidence that the in-court identification will be
based on a sufficiently independent basis to purge the taint of the illegal identification.” People
v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998).

       As this Court has stated on more than one occasion, “[t]he fact that a defendant whose
photograph had been shown in a previous photographic show-up is the only participant in a
subsequent lineup does not render the lineup procedure improper.” People v Currelley, 99 Mich
App 561, 568; 297 NW2d 924 (1980); see also People v Solomon, 82 Mich App 502, 507; 266
NW2d 453 (1978). Smith indicated that she based her identification of defendant at the
corporeal lineup on having seen him at the club on the night of the shooting. She testified that
she clearly saw his profile while he was exiting the bar and shooting into the air, and that she
recognized him as he exited the bar because she saw him full in the face earlier in the evening.
Likewise, Davis stressed that he recognized defendant in the lineup because he had looked him
“dead in the eyes” as defendant grabbed his glasses. Both witnesses testified at the preliminary




1
    United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).


                                                -2-
examination2 that they did not see defendant’s photograph among those shown them by Officer
Holmes. Given Smith’s and Davis’s testimony that they identified defendant in the corporeal
lineup based on their observation of him at Chevelles, and their insistence that they did not
recognize him in the photographic array, defendant has no basis for contending that the prior
photographic array influenced the identification witnesses.

        We have also held that it is not necessarily impermissibly suggestive when an accused
wears the same clothing in a lineup as he or she wore when apprehended, Currelley, 99 Mich
App at 567, even when the defendant was apprehended shortly after the crime and is wearing the
same clothes in the lineup that he wore when he committed the crime, People v Morton, 77 Mich
App 240, 243-244; 258 NW2d 193 (1977). Wearing the same clothes at arrest and at a
subsequent lineup “will not vitiate the lineup, even where the clothing serves to draw attention
away from other lineup participants.” People v Jones, 44 Mich App 633, 637; 205 NW2d 611
(1973) (lineup not impermissibly suggestive where one of two perpetrators wore a green T-shirt
during commission of the crime and defendant wore a green T-shirt at the lineup). To show a
deprivation of due process, the defendant must show that the characteristic feature or clothing
that distinguished defendant from other members of the lineup was significant to the witness
making the identification. People v See Holmes, 132 Mich App 730, 746; 349 NW2d 230
(1984); see e.g., People v Hutton, 21 Mich App 312, 331; 175 NW2d 860 (1970) (the witness
said he identified the defendant based on his sandy-colored hair, and the white T-shirt the
defendant was wearing when the witness saw him in the police car and at the police station).
“[W]here there is no record evidence that identification of the defendant depended substantially
on the clothing worn at the time of the offense, and where the witness had sufficient time to
observe the defendant[,]” no impermissible suggestiveness will be found. Currelley, 99 Mich
App at 567, citing People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977).

        Defendant has failed to show that his wearing a Chicago Bulls jersey in the lineup was a
distinguishing feature that was significant to and unduly influenced Smith or Davis. Defendant
was wearing the jersey when he was arrested on a parole violation nearly two weeks after the
shooting, but he was not wearing it on the night of the shooting. The crowd photos from the bar
taken on the night of the shooting depict several persons wearing team baseball caps, including
three Chicago Bulls caps. Smith said at the preliminary examination that defendant was wearing
a red and black cap, but she identified it by its colors, and not specifically by its team affiliation.
Davis agreed at the preliminary examination that defendant had on a red Chicago Bulls hat at the
club and a Chicago Bulls jersey at the lineup, but said that he could not remember if the jersey
defendant wore during the lineup was red because he “wasn’t really paying attention to his
clothes; [he] was really paying attention to his face.” At the corporeal lineup, both Smith and
Davis identified defendant by his number, only afterwards clarifying their pick by referencing
the Chicago Bulls jersey that defendant was wearing.




2
    The preliminary examination transcript was admitted into evidence at the Wade hearing.


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        “The fairness of an identification procedure is evaluated in light of the totality of the
circumstances.” People v Davis, 146 Mich App 537, 548; 381 NW2d 759 (1985). Some of the
factors courts look at when determining the likelihood of misidentification include,

         the opportunity of the witness to view the criminal at the time of the crime, the
         witness' degree of attention, the accuracy of the witness' prior description of the
         criminal, the level of certainty demonstrated by the witness at the confrontation,
         and the length of time between the crime and the confrontation. [Kurylczyk, 443
         Mich at 306, quoting Neil v Biggers, 409 US 188, 199-200; 93 S Ct 375, 380; 34
         L Ed 2d 401 (1972).]

         Analyzing the relevant factors in this case, we conclude that the trial court did not err in
denying defendant’s motion to suppress the lineup identification. As we indicated above, Smith
testified at the preliminary examination that, although she did not see defendant take Davis’s
glasses and shoot the victims, she clearly saw his profile while he was exiting the bar and
shooting into the air, and she recognized him from having seen him full-face earlier in the
evening. Davis said defendant looked him in the eye as he took Davis’s glasses off his face.
Asked if he and defendant were face-to-face, Davis reiterated that he looked defendant “dead in
the eyes.” The lights in the bar and grille were on at the time of the incident, making it less
likely that the witnesses’ vision would be impaired by dimness. That the circumstances of
defendant’s actions captured the attention of both Smith and Davis can hardly be doubted. The
witnesses’ description of defendant comported with his appearance in crowd photos, and they
identified defendant at the corporeal lineup immediately and confidently, as is indicated by the
Wade hearing testimony of the show-up attorney who was present at both corporeal lineups.
Finally, the witnesses identified defendant as the shooter within two weeks of the incident, a
relatively short span of time between the shooting and the lineup. See Kurylczyk, 443 Mich at
308 n 13 (observing that “[c]ourts have held that delays as long as eighteen months after a crime
do not invalidate an eyewitness identification”). Based on the foregoing, we conclude that the
opportunities afforded the witnesses to view the shooter, the attention the shooter drew to
himself, the accuracy of the witnesses’ descriptions of the shooter, and the confidence with
which the witnesses identified defendant as the shooter provided sufficient indicia of reliability
to deny defendant’s motion to suppress the witnesses’ identification of him at the corporeal
lineup.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues that trial counsel was ineffective for failing to interview other witnesses
from Chevelles Bar & Grill, and failing to investigate potential weaknesses in the prosecution
witnesses’ testimony. Because defendant did not raise this issue in a motion for a new trial or
request for a Ginther3 hearing, and this Court denied defendant’s motion to remand,4 our review


3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
 People v Lawrence Thomas, unpublished order of the Court of Appeals, entered September 2,
2016 (Docket No. 328534).


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is limited to errors apparent from the record. People v Matuszak, 263 Mich App 42, 48; 687
NW2d 342 (2004). “Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d
761 (2004). To establish ineffective assistance of counsel, defendant must demonstrate “(1) that
counsel’s representation fell below an objective standard of reasonableness, and (2) that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014)
(quotation marks and citation omitted). Further, “[b]ecause 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.” People v Carbin, 463 Mich 590, 600;
623 NW2d 884 (2001). “[D]ecisions regarding what evidence to present and which witnesses to
call are presumed to be matters of trial strategy,” and this Court “will not second-guess strategic
decisions with the benefit of hindsight.” People v Dunigan, 299 Mich App 579, 589-590; 831
NW2d 243 (2013). “Defense counsel's failure to present certain evidence will only constitute
ineffective assistance of counsel if it deprived defendant of a substantial defense.” Id. at 589.
“A substantial defense is one that might have made a difference in the outcome of the trial.”
People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).

        Defendant maintains that Davis was not telling the whole truth. He argues that defense
counsel deprived him of a substantial defense by failing to investigate Davis’s story and
background. Defendant argues that counsel could have more effectively impeached Davis’s
testimony if counsel had conducted a thorough investigation, including by verifying Davis’s
statement that he was stopped by police after purposefully speeding, and that the police
summoned an ambulance for him. Defendant also contends that counsel should have
interviewed other witnesses, including persons known as Dwight and Aaron, and the mother of
Lataris Rucker, whom Davis tried to contact to inform her that Rucker had been shot. In
addition, defendant argues that a more thorough impeachment of Davis, combined with “the
weak nature” of the testimony by prosecution witness Marquis Lambert, would have provided an
effective defense. Further, defendant argues that trial counsel was ineffective for failing to
investigate other witnesses, referring to statements that officers gathered at Chevelles and passed
on to the officer in charge.

        Defendant has failed to establish the factual predicate for his claim and to overcome the
presumption that defense counsel’s actions constituted sound trial strategy. Although Davis’s
credibility was an issue at trial, defendant has failed to provide factual support for his speculative
assertion that defense counsel missed opportunities to impeach Davis’s testimony. Defendant
has not identified any evidence suggesting that police inquiries would have revealed that there
was no police report corroborating Davis’s testimony about the traffic stop, or that either
Rucker’s mother, Aaron, or Dwight could have provided information useful to impeaching
Davis’s testimony. In addition, although Lambert could not identify the shooter, his testimony
that the shooter stole Davis’s glasses and then fired his weapon was relevant to support the
elements of the charged crimes of felony murder and assault with intent to commit murder, and
defendant provides no basis for concluding that any additional impeachment of Davis would
have been helpful in further undermining Lambert’s testimony. Finally, defendant has not
provided any offer of proof regarding relevant information to be obtained from interviewing
witnesses whose statements were taken at Chevelles. Absent factual support for defendant’s
claim that further investigation of Davis or of other witnesses would have provided him with a

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substantial defense, we cannot conclude that defense counsel’s assistance was constitutionally
ineffective. Dunigan, 299 Mich App at 589.

       Defendant also argues that this Court should remand this matter for a Ginther hearing.
However, without an appropriate offer of proof demonstrating factual support for his claim,
defendant is not entitled to an evidentiary hearing.

                            III. FELONY-MURDER CONVICTION

       Defendant contends that he could not be convicted of felony-murder because he was not
charged with or convicted of the predicate offense of larceny. This position is without merit.

        Whether a conviction of felony murder is void in the absence of a conviction of the
underlying felony is a question of law, which we review de novo on appeal. See People v
Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014). Unpreserved issues are reviewed for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999).

        MCL 750.316(1)(b) defines felony murder as “murder committed in the perpetration of,
or attempt to perpetrate” any of the enumerated felonies, including “larceny of any kind.” The
statute does not require that a defendant be charged with or convicted of a predicate offense to be
convicted of felony murder. The prosecution alleged that defendant’s act of taking Davis’s
designer glasses was an act of larceny that served as the predicate offense for the felony-murder
charge. Although defendant was not separately charged with larceny, “the decision whether to
bring a charge and what charge to bring lies in the discretion of the prosecutor.” People v
Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998). In People v Ream, 481 Mich 223, 225-
226; 750 NW2d 536 (2008), our Supreme Court overruled prior caselaw and held that dual
convictions for both felony murder and the underlying felony do not violate double jeopardy
protections. That decision clearly indicates that felony murder and the underlying offense are
separate offenses for purposes of the prosecutor’s charging discretion.

        Conviction for felony-murder does not require the prosecutor to charge and convict a
defendant of one of the predicate felonies enumerated in MCL 750.316(1)(b), but it does require
the trial court to instruct the jury on the elements of the underlying felony. See People v
Whetstone, 131 Mich App 669, 676-677; 346 NW2d 845 (1982). Our review of the record
reveals that the third element in the trial court’s felony-murder instruction was “that when
[defendant] did the act that caused the death of Jessica Porter the defendant was committing or
attempting to commit the crime of larceny.” We further note that the record shows that the trial
court properly instructed the jury on the elements of larceny.

       Defendant contends that his conviction was improper because only a felony larceny can
serve as the predicate offense for felony murder, and the jury was never instructed that the item




                                                -6-
that was allegedly stolen had to have a value of at least $1,000.5 MCL 750.356(3)(a) (classifying
as a felony and identifying the punishment for larceny of property worth more than $1,000 but
less than $20,000). However, as MCL 750.316(1)(b) clearly states, felony murder can be
established when a person commits “larceny of any kind.” Consequently, even misdemeanor
larceny is sufficient to support a conviction for felony murder. Id. Accordingly, the prosecution
was not required to prove the value of Davis’s glasses.

                          IV. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises two additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, neither of which have merit.

                       A. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant asserts that trial counsel was ineffective for failing to challenge the trial
court’s personal and subject-matter jurisdiction, and failing to challenge the validity and
constitutionality of the first-degree murder statute, MCL 750.316. We disagree.

        As Michigan’s Supreme Court has pointed out, subject-matter jurisdiction “is the right of
the court to exercise jurisdiction over a class of cases, such as criminal cases[,]” and “is
presumed unless expressly denied by constitution or statute.” People v Goecke, 457 Mich 442,
458; 579 NW2d 868 (1998) (quotation marks and citation omitted). “In personam jurisdiction is
vested in the circuit court upon the filing of a return of the magistrate before whom the defendant
waived preliminary examination, or before whom the defendant had been examined. Id.
(quotation marks and citation omitted). Further, “[s]tatutes are presumed to be constitutional,
and courts have a duty to construe a statute as constitutional unless its unconstitutionality is
clearly apparent.” People v McDonald, 201 Mich App 270, 273; 505 NW2d 903 (1993).
Defendant cites no constitutional or statutory authority that would call into question the circuit
court’s subject-matter jurisdiction in this case, and in personam jurisdiction vested in the circuit
court subsequent to defendant’s preliminary examination on October 6, 2014. Further, defendant
has failed to present a legally cognizable argument in support of his claim that Michigan’s first-
degree murder statute is null and void. Accordingly, defendant has not shown that defense
counsel rendered constitutionally ineffective assistance by failing to raise these claims. See
People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005) (noting that counsel is not
ineffective for failing “to advocate a meritless position”).

                            B. PROSECUTORIAL MISCONDUCT

       Defendant raises claims of prosecutorial misconduct, none of which was preserved with
an appropriate objection in the trial court. People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). “Issues of prosecutorial misconduct are reviewed de novo to determine whether the


5
 At trial, Davis testified that he was wearing Cartier glasses and that he had paid around $1,300
or $1,400 for them. Defendant argues that this testimony does not establish the value of the
glasses at the time of the incident in question.


                                                -7-
defendant was denied a fair and impartial trial.” Id. Claims of prosecutorial misconduct are
reviewed on a case-by-case basis, examining the prosecutor's remarks in context. People v
Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010). Unpreserved claims of prosecutorial
misconduct are reviewed for plain error affecting the defendant’s substantial rights. Bennett, 290
Mich App at 475.

        Defendant first argues that the prosecutor’s hypothetical example explaining how one
witness’s testimony being sufficient to prove an accused pickpocket’s guilt was improper
because it provided a false explanation of reasonable doubt. We disagree because the remarks
did not refer to reasonable doubt. In any event, the trial court properly instructed the jury on
reasonable doubt by giving the instruction in M Crim JI 3.2, the substance of which has been
approved by this Court. People v Hill, 257 Mich App 126, 152; 667 NW2d 78 (2003). The
court also instructed the jury that it must follow the court’s instructions on the law, and must not
follow any attorney statements on law that are different than the trial court’s instructions. These
instructions were sufficient to protect defendant’s substantial rights. See People v Abraham, 256
Mich App 265, 279; 662 NW2d 836 (2003).

       Defendant also argues that the prosecutor improperly vouched for his guilt with these
statements:

               So after listening to all the testimony in this case and seeing the exhibits in
       this case it has been proven beyond a reasonable doubt that first; the Defendant
       was there that night, and second, that he was the shooter who over a pair of
       glasses took the life of Jessica Porter, shot Mr. Rucker, shot Mr. Davis and then
       when he was arrested for this offense tried to flee from the police.

        A prosecutor may not vouch for a defendant’s guilt by using the prestige of his office.
See People v Reed, 449 Mich 375, 398-399; 535 NW2d 496 (1995). “The crucial inquiry is not
whether the prosecutor said ‘We know’ or ‘I know’ or ‘I believe,’ but rather whether the
prosecutor was attempting to vouch for the defendant’s guilt.” Id. at 399. The prosecutor’s
remarks must be read in context and must be “evaluated in light of the relationship or lack of
relationship they bear to the evidence admitted at trial.” Id. (citation and quotation marks
omitted). The challenged remarks came at the conclusion of the prosecutor’s review of the
evidence. Considered in context, the argument was intended to persuade the jury that the
evidence proved defendant’s guilt. The prosecutor did not urge the jury to find defendant guilty
based on the prestige of her office. Therefore, the remarks were not improper.

        Lastly, defendant argues that the prosecutor improperly appealed to the jury’s sympathy,
directing statements toward the jury that were intended to elicit an emotional response. “Appeals
to the jury to sympathize with the victim constitute improper argument,” but such remarks do not
warrant reversal unless they are “so inflammatory as to prejudice defendant.” See People v
Watson, 245 Mich App 572, 591; 629 NW2d 411 (2011).

        Defendant does not specify which parts of the prosecutor’s closing argument constituted
an improper appeal for sympathy. “An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims . . . .” People v Kelly,
231 Mich App 627, 640-641; 588 NW2d 480 (1998). By failing to identify any particular

                                                -8-
remark as improper, defendant has failed to meet his burden of establishing a plain error.
Moreover, we have reviewed the prosecutor’s closing remarks and find none that can be
characterized as an improper appeal to the jury’s sympathy.

      Affirmed.



                                                       /s/ Jane M. Beckering
                                                       /s/ David H. Sawyer
                                                       /s/ Henry William Saad




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