                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 13, 2018
               Plaintiff-Appellee,

v                                                                   Nos. 337755; 337928
                                                                    Wayne Circuit Court
DIMITRI BERNARD ROBINSON,                                           LC Nos. 16-005942-01-FH;
                                                                            16-005941-01-FC
               Defendant-Appellant.


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

       In these consolidated appeals stemming from a single trial, defendant appeals as of right
his jury trial convictions for second-degree home invasion, MCL 750.110a(3), larceny in a
building, MCL 750.360, first-degree murder, MCL 750.316, and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b.1 Defendant was sentenced to life
imprisonment without parole for first-degree murder, 19 months to 15 years’ imprisonment for
second-degree home invasion, three months to four years’ imprisonment for larceny in a
building, and two years’ imprisonment for felony-firearm. We affirm.

       In the years before the relevant events in this case, defendant was in a dating relationship
with Marsha Williams. They had two children together. After that relationship ended, Williams
began dating the victim. On or around May 1, 2016, defendant attempted to force his way inside
Williams’s house to see his children, but the victim prevented defendant from doing so. Later,
on May 17, 2016, defendant confronted Williams at the children’s school and wanted to see their
children. Williams refused, and defendant grabbed Williams’s arm and twisted it. That evening,
when Williams and the children arrived home, Williams saw that someone had broken into their
home through her bedroom window. There was blood in several places throughout the home,


1
  None of the issues raised on appeal concern defendant’s convictions for second-degree home
invasion and larceny in a building in Docket No. 337755. Those convictions relate to events that
happened over a week before the events that led to defendant’s murder and felony-firearm
convictions. Defendant’s claims of error only relate to his murder and felony-firearm
convictions, and he fails to explain what impact, if any, the alleged errors may have had on his
other convictions.


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multiple items were missing, and Williams noticed a plastic bag with blood on it outside her
bedroom window. When Williams confronted defendant about the break-in, he denied any
involvement.

       The next day, on May 18, 2016, defendant sent Williams a photograph of a cut on his
arm, which defendant attributed to an injury he incurred when someone robbed him. Williams
did not believe defendant and called the police. That same day, an officer came to Williams’s
house, observed the scene, and took the plastic bag into evidence for forensic analysis.

       On May 25, 2016, the victim changed his cellphone number because defendant called
him multiple times. The next day, after the victim had changed his number, defendant somehow
discovered the victim’s new number and texted the victim that he was going to kill him. On May
27, 2016, the victim picked Williams’s children up from school at 3:45 p.m. and brought them
back to Williams’s house. At 4:15 p.m., the victim and Williams’s son rode bicycles to the
victim’s father’s home, which was roughly four blocks away. Later, while the victim and
Williams’s son were returning to Williams’s home, a man wearing a mask jumped out of some
bushes and shot the victim.

        Officers that responded to the scene found four bullet casings. Detective Lieutenant
Bradley Cox, one of the officers that responded to the scene, spoke with Williams, who gave the
detective defendant’s name as a possible suspect. Cox went back to the police station to search
the database for defendant. At or around 7:45 p.m. that day, defendant called Cox at the police
station to ask why the police were looking for him. According to Cox, there was no reason why
defendant would have known that police were looking for him. Cox told defendant that
defendant was a person of interest in a crime—but did not specify what the crime was—and that
he wished to speak with defendant. Defendant told Cox that he would call back later, and did so
twice that evening. During each call, defendant declined Cox’s invitation to come to the police
station for questioning. At the end of the third and final call, defendant told Cox that he would
get back to him because “[h]e was going to seek a lawyer.”

        According to Cox, because defendant refused to come to the police station, police were
forced to search for him. Cox used the number that defendant called him from to get a court
order to ping defendant’s cellphone. This allowed Cox to trace defendant’s real-time location.
Cox gave defendant’s phone carrier defendant’s number, and the phone carrier told Cox that
defendant was near 19400 Beland Street in Detroit, Michigan.

        Officers went to that address and saw defendant walking outside. The officers verbally
identified defendant and then detained him while they awaited a warrant to search 19400 Beland
Street. After obtaining a warrant, the officers searched the home and found a piece of mail
addressed to defendant—establishing his residency—and a loaded 9mm handgun. Forensics
determined that the casings recovered at the scene of the shooting were fired from the 9mm
handgun officers recovered at defendant’s home.

       Cox arrived at 19400 Beland Street while officers were securing the house before the
search. Cox approached defendant, and defendant asked Cox if he was the officer defendant
spoke with earlier. Cox said that he was, but advised defendant to “seek a lawyer.” According
to Cox, defendant responded that he wanted to speak with Cox and clear things up. Cox

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transported defendant to the police station, where he advised defendant of his Miranda2 rights.
Defendant eventually confessed to shooting the victim.

       Before trial, defendant moved to suppress his statements to police, claiming that he
invoked his right to counsel when talking to Cox on the phone, and so the interrogation of
defendant without counsel violated defendant’s Fifth Amendment rights. After a hearing on the
motion—during which Cox and other detectives testified about the events surrounding
defendant’s contact with police, defendant’s arrest, and defendant’s interrogation—the trial court
denied defendant’s motion because defendant was not in custody when he requested counsel.
Defendant was eventually convicted as previously stated, and this appeal followed.

        Defendant first argues that the trial court erred by denying his motion to suppress because
the police impermissibly reinitiated contact with him after he invoked his constitutional right to
an attorney during his phone call with Cox. We disagree. When reviewing a decision on a
motion to suppress, we review the trial court’s factual findings for clear error. People v Tanner,
496 Mich 199, 206; 853 NW2d 653 (2014). To the extent the decision involves an interpretation
of law or application of a constitutional standard, we review the decision de novo. Id.

        Both the United States and Michigan Constitutions guarantee that no person shall be
compelled to be a witness against himself. US Const Am V; Const 1963, art 1 § 17. In Miranda
v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United States Supreme
Court held that the Fifth and Fourteenth Amendments’ prohibition against compelled
self-incrimination require that a custodial interrogation be preceded by advice to the accused that
“he has a right to remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or appointed.” An
accused’s right to the presence of counsel during a “custodial interrogation is a corollary of the
right against compelled self-incrimination, because the presence of counsel at a custodial
interrogation is one way in which to ‘insure that statements made in the government-established
atmosphere are not the product of compulsion.’ ” People v Elliott, 494 Mich 292, 301; 833
NW2d 284 (2013), quoting Miranda, 384 US at 466.

        In Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), the United
States Supreme Court created “additional safeguards” for when an accused invokes his right to
the presence of counsel during a custodial interrogation:

         [W]hen an accused has invoked his right to have counsel present during custodial
         interrogation, a valid waiver of that right cannot be established by showing only
         that he responded to further police-initiated custodial interrogation even if he has
         been advised of his rights . . . . [H]aving expressed his desire to deal with the
         police only through counsel, [he] is not subject to further interrogation by the
         authorities until counsel has been made available to him, unless the accused
         himself initiates further communication, exchanges, or conversations with the
         police. [Edwards, 451 US at 484-485.]


2
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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        Here, defendant asserts that officers violated Edwards by subjecting defendant to a
custodial interrogation after defendant invoked his right to an attorney during his phone call with
Cox. In making this argument, defendant mistakenly asserts that the trial court erred by focusing
on whether defendant was in custody at the time he said that he wanted to speak with an
attorney. As explained by the United States Supreme Court, “[i]n every case involving
Edwards,” the reviewing court “must determine whether the suspect was in custody when he
requested counsel and when he later made the statements he seeks to suppress.” Maryland v
Shatzer, 559 US 98, 111; 130 S Ct 1213; 175 L Ed 2d 1045 (2010) (emphasis added). Thus, the
trial court properly focused on whether defendant was in custody before applying Edwards.

       Whether an accused was in custody depends on the totality of the circumstances, and
focuses on the objective circumstances of the interrogation. People v Coomer, 245 Mich App
206, 219; 627 NW2d 612 (2001). The reviewing court asks whether a reasonable person in the
defendant’s situation would believe that he or she was free to leave and “whether the relevant
environment present[ed] the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Howes v Fields, 565 US 499, 509; 132 S Ct 1181; 182 L Ed
2d 17 (2012).

        Viewing the totality of the circumstances, defendant was not in custody when he told Cox
that he wished to speak with an attorney before talking to the police. Defendant was not under
arrest or in any way constrained by authorities when he spoke with Cox over the phone.
Defendant was free to end the conversation whenever he pleased. Indeed, defendant did so
multiple times. And not only did defendant repeatedly end his conversations with Cox, but
defendant made the initial contact with Cox, and then continued to reinitiate contact with Cox
until defendant decided he wanted to speak to an attorney. On these facts, we conclude that, at
the time that defendant told Cox that he wanted to speak with an attorney, defendant was not
subject to an inherently coercive environment, and a reasonable person in defendant’s position
would believe that he or she was free to leave. In short, defendant was not in custody when he
told Cox that he wished to speak with an attorney. And because defendant was not in custody
when he told Cox that he wished to speak to an attorney, his rights under Edwards were not
violated, and the trial court did not otherwise err by admitting defendant’s confession at trial.

        Defendant next argues that defense counsel at trial was ineffective for not raising certain
other arguments in his motion to suppress. Defendant did not move for a new trial or evidentiary
hearing in the trial court, so this issue is not preserved. People v Sabin, 242 Mich App 656, 658;
620 NW2d 19 (2000). This Court’s review of unpreserved claims of ineffective assistance of
counsel is limited to facts apparent on the record. People v Jordan, 275 Mich App 659, 667; 739
NW2d 706 (2007). Whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). The trial court’s constitutional determinations are reviewed de novo
while its factual determinations are reviewed for clear error. People v Lockett, 295 Mich App
165, 186; 814 NW2d 295 (2012).

        “In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). This Court presumes that counsel was

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effective, and a defendant bears the heavy burden of proving otherwise. People v Seals, 285
Mich App 1, 17; 776 NW2d 314 (2009).

       Defendant’s first ineffective assistance claim is premised on his assertion that a search
within the meaning of the Fourth Amendment occurs when the police ping a criminal suspect’s
cellphone to locate his real-time location. Defendant argues that, because this constitutes a
search, the police violated his constitutional rights by pinging his cellphone without first
obtaining a search warrant, and counsel was ineffective for not raising this argument at trial.

        It is not settled law, however, that pinging a cellphone for a suspect’s real-time location
constitutes a search within the meaning of the Fourth Amendment.3 Indeed, defendant concedes
as much on appeal. “[D]efense counsel’s performance cannot be deemed deficient for failing to
advance a novel legal argument.” People v Reed, 453 Mich 685, 695; 556 NW2d 858 (1996);
see also People v Crews, 299 Mich App 381, 400-401; 829 NW2d 898 (2013) (relying on Reed
and rejecting the defendant’s argument that defense counsel’s failure to object to the scoring of
his prior record variable 1 “on the basis of unclear, undefined statutory language without any
Michigan caselaw to provide guidance on the issue” constituted a performance that fell below an
objective standard of reasonableness).

        Given that there is no binding precedent to support defendant’s argument that his Fourth
Amendment rights were violated when police found defendant’s location by pinging his
cellphone, defense counsel’s failure to object on this ground cannot be considered ineffective
assistance of counsel. See Reed, 453 Mich at 695. And because there is no caselaw to establish
that defendant’s assertion—that pinging his cellphone was a search within the meaning of the
Fourth Amendment—has merit, defendant cannot establish that he was prejudiced by defense
counsel’s failure to raise the argument.

         Defendant next argues that he was denied the effective assistance of counsel because
defense counsel at trial failed to argue that officers illegally arrested defendant while they waited
for the warrant to search defendant’s house. According to defendant, because his arrest was
illegal, the evidence found during the subsequent search of his house was fruit of the poisonous
tree.

        The record is clear that officers arrested defendant when they found him wandering
around his neighborhood before they searched his house, but the officers’ reasons for arresting
defendant were never developed at trial. But at the hearing on defendant’s motion to suppress,
an officer explained that defendant was detained because he had several traffic warrants. And in
Cox’s search warrant application, he similarly states that defendant was detained because he


3
  We recognize that recently, in Carpenter v United States, 518 US ___, ___; 138 S Ct 2206,
2217-2219; 201 L Ed 2d 507 (2018), the United States Supreme Court ruled that the police must
obtain a search warrant supported by probable cause before obtaining a lengthy location history
based on a suspect’s cellphone location. But the Carpenter Court expressly refused to address
“matters not before” it, including “real-time [cell-site location information],” id. at 2220, which
is the type of alleged search at issue here.


                                                -5-
“had several traffic warrants.” Defendant does not dispute that the officers’ detaining him for
traffic warrants was valid. Instead, defendant argues that the stated reason is a lie, and that the
arrest was actually a pretext “to investigate the murder charges.”

        In support of his argument, defendant relies on People v Martin, 94 Mich App 649, 652-
653; 290 NW2d 48 (1980), where this Court ruled that, despite that officers could have properly
arrested the defendant for assaulting one of the officers, the officers did not have probable cause
to arrest the defendant because the officers said that they arrested the defendant “for
‘investigation of murder,’ ” which is not a crime. Here, unlike in Martin, the officers that
arrested defendant never stated that they arrested him to investigate the murder; the only
evidence in the record is that officers arrested defendant because he had several traffic warrants.
Defendant “has the burden of establishing the factual predicate for his claim,” People v Hoag,
460 Mich 1, 6; 594 NW2d 57 (1999), and without some evidence that the officers arrested
defendant as a pretext to investigate the murder, defendant failed to establish the factual basis for
this ineffective assistance claim. Because defendant does not dispute that it was proper for
officers to arrest defendant based on his outstanding traffic warrants, he cannot show that his
arrest was illegal. And defense counsel cannot be deemed ineffective for not raising this
“meritless or futile” objection. People v Putman, 309 Mich App 240, 245; 870 NW2d 593
(2015).

       Affirmed.



                                                              /s/ Michael J. Kelly
                                                              /s/ Patrick M. Meter
                                                              /s/ Colleen A. O’Brien




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