                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 21, 2016
              Plaintiff-Appellee,

v                                                                  No. 326664
                                                                   Wayne Circuit Court
DESMOND DUANE-MARK LEFLORE,                                        LC No. 14-007568-FC

              Defendant-Appellant.


Before: SHAPIRO, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Following a jury trial, defendant appeals as of right his convictions for carjacking, MCL
750.529a, two counts of armed robbery, MCL 750.529, unlawfully driving away a motor vehicle,
MCL 750.413, possession of a firearm by a person convicted of a felony (felon-in-possession),
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Because defendant was not denied the effective assistance of counsel, we
affirm.

        This case arises from the armed robbery and carjacking of John Freeman and his
landscaping colleague, Eddie Fosnaugh, which occurred on August 19, 2014, at the corner of
Rossini Drive and Brock Avenue in Detroit. Freeman and Fosnaugh had just finished yardwork
on a nearby property and they were sitting in their truck, entering the address information for
their next job into a GPS, when they were approached by two men, later identified as defendant
and Vantrais Cross. The record evidence shows that defendant stood outside Freeman’s driver’s
side window and Cross stood outside the passenger’s side window, where Fosnaugh was seated
as a passenger. Defendant pulled out a handgun and pointed it directly at Freeman, and he
demanded that both Freeman and Fosnaugh relinquish all their personal property. Defendant
then ordered Freeman and Fosnaugh to exit the truck. Shortly thereafter, defendant and Cross
drove off with the truck, an attached trailer containing landscaping equipment, and all of
Freeman’s and Fosnaugh’s personal belongings.

        The incident was reported to police and, by tracking an i-phone taken during the robbery,
police located the truck and many of the stolen items. Cross was arrested with stolen property in




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his possession and, although neither victim identified Cross in a line-up, after police returned
Freeman’s property, Freeman discovered a photograph of Cross on his cellular telephone.1
Acting on tips that defendant was also involved, defendant’s photograph was placed in a
photographic array. Fosnaugh did not identify anyone in the photographic array. However,
Freeman positively identified defendant in the array, explaining that defendant “was the one that
pulled the gun and mostly talked” during the carjacking. Freeman also later identified defendant
at a preliminary examination and again at trial. At trial, on a scale of 1 to 10, Freeman stated his
certainty with respect to defendant’s identity as a “10.” The jury convicted defendant as noted
above. Defendant now appeals as of right.

        On appeal, defendant argues that he is entitled to a new trial because he was deprived of
the effective assistance of counsel. In particular, defendant contends that trial counsel should
have sought suppression of Freeman’s pre-trial identification of defendant and that counsel’s
failure to do so prejudiced defendant. According to defendant, counsel would have succeeded on
a motion to suppress Freeman’s pre-trial identification because (1) Detroit Police Detective Dana
Russell used her own subjective judgment in compiling the photographic array, (2) Russell was
unable to give a definitive time of when the identification was made, (3) the whole carjacking
incident lasted less than five minutes, during which time Freeman’s opportunity to observe
defendant was extremely limited, (4) Freeman could not provide police with any unique features
of defendant, and (5) the photographic array contained at least three individuals who were of
“slight build” and three individuals who had “dark” complexions.

       To preserve a claim of ineffective assistance of counsel for appellate review, a defendant
must move for a new trial or for a Ginther2 hearing in the lower court. People v Lopez, 305 Mich
App 686, 693; 854 NW2d 205 (2014). Here, defendant did not move for a new trial or a Ginther
hearing in the trial court. Therefore, this issue is unpreserved for appellate review. See id.
When a claim of ineffective assistance of counsel has not been preserved for appellate review,
this Court’s review is limited to errors apparent on the record. Id.

        Criminal defendants have a right to effective assistance of counsel under both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. To prevail on an
ineffective assistance of counsel claim, defendant must show: (1) that counsel’s performance fell
below an objective standard of reasonableness, and (2) that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. People v Vaughn,
491 Mich 642, 669; 821 NW2d 288 (2012) (citation and quotation marks omitted). Defense
counsel has wide discretion in matters of trial strategy, including whether to move to suppress
evidence. People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012). “Effective assistance of
counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012) (quotation marks and citation omitted).



1
 Cross pled guilty to carjacking, two counts of armed robbery, and unlawfully driving away a
motor vehicle. He is not a party to this appeal.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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Trial counsel will not be considered ineffective for failing to file a futile motion. People v
Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011).

         In this case, any motion to suppress Freeman’s pre-trial identification would have been
futile, and thus defendant has not overcome the presumption that counsel provided effective
assistance. “A photographic identification procedure or lineup violates due process guarantees
when it is so impermissibly suggestive as to give rise to a substantial likelihood of
misidentification.” People v McDade, 301 Mich App 343, 357; 836 NW2d 266 (2013).
“Generally, the photo spread is not suggestive as long as it contains some photographs that are
fairly representative of the defendant's physical features and thus sufficient to reasonably test the
identification.” People v Kurylczyk, 443 Mich 289, 304; 505 NW2d 528 (1993) (citation
omitted).

       As a general rule, physical differences between a suspect and other lineup
       participants do not, in and of themselves, constitute impermissible
       suggestiveness. . . . Differences among participants in a lineup are significant only
       to the extent they are apparent to the witness and substantially distinguish
       defendant from the other participants in the line-up. . . . It is then that there exists
       a substantial likelihood that the differences among line-up participants, rather than
       recognition of defendant, was the basis of the witness' identification. [People v
       Henry (After Remand), 305 Mich App 127, 161; 854 NW2d 114 (2014) (citation
       omitted).]

Indeed, even if a photographic array can be considered suggestive, “a suggestive lineup is not
necessarily a constitutionally defective one.” Kurylczyk, 443 Mich at 306. “Rather, a suggestive
lineup is improper only if under the totality of the circumstances there is a substantial likelihood
of misidentification.” Id. When evaluating the likelihood of misidentification, factors that a
court will consider are:

       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. [Id. (citation
       omitted).]

       In this case, the photographic array consisted of six photographs, including a photograph
of defendant. The photographs are all the same size and there is nothing in the composition or
arrangement of the photographs to draw attention to defendant. Likewise, there is no indication
that police said or did anything while Freeman viewed the array which might render the
procedure unduly suggestive.3 Further, with respect to the physical features and clothing of the


3
 Defendant suggests on appeal that Russell’s “subjective” selection of photographs for the array
somehow renders the array infirm. He provides no authority for this proposition, nor are we
aware of any such authority. We consider this argument abandoned. See People v Smart, 304
Mich App 244, 251; 850 NW2d 579 (2014).


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individuals depicted, there is nothing to substantially distinguish defendant from the other
participants in the array. The men appear to be of similar ages, all the participants are African-
American, all the participants have facial hair, they also all have relatively short dark hair, they
are all wearing plain white t-shirts, and the pictures are cropped to show from the shoulders up,
making it difficult to discern differences in the participants’ respective heights. Having viewed
the array, we see nothing to substantially distinguish defendant from the other participants in a
manner that could be considered suggestive. See McDade, 301 Mich App at 357.

        Nonetheless, on appeal, defendant asks this Court to ignore the substantial similarities
among the participants and to find the array impermissibly suggestive based on purported
differences in size and complexion among the array participants. That is, defendant maintains
that the array was impermissibly suggestive because three of the participants were “slight” in
build and three had “dark” complexions compared to the other participants. However, “[i]f one
were to accept defendant's complaints about the slight physical differences or variations, it would
make it nearly impossible for the police to compose a lineup, forcing authorities to search for
‘twin-like’ individuals to match against a defendant.” Id. at 358. Such a high degree of
similarity is neither feasible nor constitutionally required. Instead, viewing defendant in the
group, defendant was by no means significantly distinguished from the other participants on the
basis of size or complexion, and any minor differences among the individuals did not render the
array impermissibly suggestive. See id.; People v Hornsby, 251 Mich App 462, 467; 650 NW2d
700 (2002); People v Holmes, 132 Mich App 730, 746; 349 NW2d 230 (1984).

        Moreover, even if the lineup could be described as suggestive, it would only be
constitutionally defective if, under the totality of the circumstances, there was a substantial
likelihood of misidentification. Under the totality of the circumstances, it is apparent from the
record that the photographic array procedure did not give rise to a substantial likelihood of
misidentification, which would have made the procedure unduly suggestive. First, it is apparent
that Freeman had ample time and opportunity to view defendant during the armed robbery,
which occurred outside during daylight hours and which lasted for approximately five minutes
during which defendant was within arm’s length of Freeman. Second, although Freeman noted
that he looked at the gun and at Fosnaugh at points during the robbery, he also emphasized that
he was face-to-face with defendant and focused on following defendant’s instructions, so we do
not think Freeman’s degree of attention detracts from his identification. Third, Freeman’s
description of defendant to police was generally consistent with defendant’s appearance.4
Fourth, the photographic array identification procedure was conducted close in time to the
carjacking, approximately 12 hours after the crime occurred.5 Fifth, prior to the photo lineup the
witness was shown a physical lineup in which defendant was not included, and he stated that the


4
  Defendant notes that Freeman failed to describe any “unique” features of defendant, but
defendant does not identify what “unique” features Freeman omitted and he points to no specific
inaccuracy in Freeman’s description to police.
5
 Defendant asserts that Russell could not provide the exact time of Freeman’s identification.
However, the photographic array was time stamped 10:11 p.m., which was approximately 12
hours after the carjacking and armed robbery occurred.


                                                -4-
assailant was not in it. Finally, Freeman’s quick identification of defendant suggested a high
level of certainty. For instance, Russell testified that “it didn’t take long at all” for Freeman to
make the identification.

        On this record, considering the totality of the circumstances, it is apparent that Freeman
had no difficulty in identifying defendant, and there is no evidence to suggest that an unduly
suggestive identification procedure was used to create a substantial likelihood of
misidentification. Thus, trial counsel’s performance was not deficient because there was no
basis to challenge the photographic array identification, and trial counsel was not required to
make a futile motion. Fonville, 291 Mich App at 384.

        Further, even if counsel could have filed a successful motion to suppress, defendant has
failed to overcome the presumption that counsel’s decision not to do so was a matter of trial
strategy, and defendant has not shown how trial counsel’s failure to file a pretrial motion
prejudiced him. Had Freeman’s pre-trial identification been suppressed, “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.” Kurylczyk, 443 Mich at
303. In our judgment, given Freeman’s ample opportunity to view defendant face-to-face in
broad daylight, there existed an independent basis for Freeman to identify defendant in court.
Cf. McDade, 301 Mich App at 359. See also People v Gray, 457 Mich 107, 115-118; 577 NW2d
92 (1998). Given this independent basis for Freeman’s in-court identification, defense counsel
may well have had strategic reasons for failing to object to the introduction of the pre-trial
identification, see People v Turner, 115 Mich App 247, 251; 320 NW2d 57 (1982), and, given
Freeman’s high degree of certainty at trial, defendant has not shown a reasonable probability of a
different outcome had counsel moved to suppress the pre-trial identification. In sum,
defendant’s ineffective assistance claim is without merit. See Lopez, 305 Mich App at 693.

       Affirmed.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Amy Ronayne Krause




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