                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 September 20, 2018
              Plaintiff-Appellee,

v                                                                No. 337433
                                                                 Wayne Circuit Court
BRENDON DIYAMO STANTON-LIPSCOMB,                                 LC No. 16-002452-01-FC

              Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

        Defendant, Brendon Stanton-Lipscomb, appeals as of right his jury convictions of first-
degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced Stanton-Lipscomb to life in
prison without parole for the murder conviction, and a consecutive two-year term of
imprisonment for the felony-firearm conviction. For the reasons stated in this opinion, we
affirm.

                                      I. BASIC FACTS

         Stanton-Lipscomb’s convictions arise from a gang-related shooting at the Eastland Mall
in Harper Woods. Approximately two years before the offense, Stanton-Lipscomb’s close friend
and cousin, Rob Carter, was killed in a drive-by shooting. Members of the Hob Squad gang
were allegedly responsible for that shooting. Before Carter’s death, Stanton-Lipscomb was
associated with the Eastside Ghetto Boys (EGB) gang. After Carter was killed, Stanton-
Lipscomb formed the Rob Gang, which operated as a rival to the Hob Squad gang. Tyler Tate,
Demetrius Armour, and Tyshon Taylor were all members or supporters of the Rob Gang or
affiliated gangs.

       On December 26, 2015, Tyrell Lane, a Hob Squad member, was shot and killed after
exiting the Burlington Coat Factory store at the Eastland Mall. At trial, the prosecution
presented evidence that Tate and Taylor encountered Lane at the mall and called Stanton-
Lipscomb to notify him of Lane’s presence. Thereafter, Stanton-Lipscomb, Armour, and
Stanton-Lipscomb’s girlfriend drove together to the mall. Stanton-Lipscomb went inside and
Armour parked the car near the exit to the Burlington store. Stanton-Lipscomb spoke with
Taylor inside the mall and then went back outside. The prosecution’s theory was that Stanton-
Lipscomb concealed himself behind a concrete pillar outside the Burlington store entrance, that
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Tate escorted Lane through the Burlington store to the store’s exterior exit, and that Stanton-
Lipscomb shot Lane when Lane exited the store. Stanton-Lipscomb fled the scene in Armour’s
waiting vehicle. At trial, Stanton-Lipscomb’s girlfriend, who was present during the shooting,
identified him as the shooter. Her testimony was corroborated by surveillance videos from the
mall’s security camera system. In addition, numerous postings and messages from Facebook and
cell phone accounts associated with Stanton-Lipscomb supported his identity as the person
responsible for murdering Lane.

        Stanton-Lipscomb, Tate, Taylor, and Armour were all eventually charged with first-
degree premeditated murder in connection with Lane’s death, but they were prosecuted
separately. Stanton-Lipscomb was convicted in June 2016. Thereafter, Taylor pleaded guilty to
a reduced charge of second-degree murder, MCL 750.317. In January 2017, a jury convicted
Armour of first-degree premeditated murder, and in April 2017, another jury convicted Tate of
first-degree premeditated murder, as well as making a false report of a felony, MCL
750.411a(1)(B), and lying to a police officer in a criminal investigation, MCL 750.479c(2)(d)(i).
Armour’s appeal in Docket No. 337434, and Tate’s appeal in Docket No. 338360 have been
submitted with the instant appeal.

                            II. RIGHT TO PRESENT A DEFENSE

                                 A. STANDARD OF REVIEW

        At trial, Stanton-Lipscomb attempted to introduce a police officer’s testimony that Tate
had identified someone else as a possible suspect. The trial court sustained the prosecutor’s
objection to this testimony as inadmissible hearsay. Stanton-Lipscomb now argues that the
exclusion of this testimony violated his constitutional right to present a defense. Because
Stanton-Lipscomb did not raise this constitutional claim in the trial court, this issue is
unpreserved. We review unpreserved issues for plain error affecting the defendant’s substantial
rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

                                         B. ANALYSIS

        “There is no doubt that based on the Fourteenth Amendment’s Due Process Clause and
the Sixth Amendment’s Compulsory Process or Confrontation Clauses, ‘the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense.’ ”
People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012), quoting Crane v Kentucky, 476
US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636 (1986) (quotation marks omitted). Yet, “[t]he right
to present a complete defense ‘may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.’ ” King, 297 Mich App at 473, quoting Chambers v
Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297 (1973). “Thus, an accused must
still comply with established rules of procedure and evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence.” King, 297 Mich App at 474
(quotation marks and citations omitted). “Michigan, like other states, has a legitimate interest in
promulgating and implementing its own rules concerning the conduct of trials.” Id. at 473
(quotation marks and citation omitted). “The Michigan Rules of Evidence do not infringe on a
defendant’s constitutional right to present a defense unless they are arbitrary or disproportionate
to the purposes they are designed to serve.” Id. at 474 (quotation marks and citation omitted).

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         MRE 801(c) defines hearsay as “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Stanton-Lipscomb sought to admit Tate’s out-of-court statement identifying someone
other than Stanton-Lipscomb as a possible perpetrator. Because this statement was offered for
its truth (i.e., to prove that someone other than Stanton-Lipscomb was identified as the possible
perpetrator), it was hearsay as defined in MRE 801(c). Under MRE 801(d)(1)(C), however, a
statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement and the statement is . . . (C) one of identification of a
person made after perceiving the person . . . .” Nevertheless, Tate did not testify at trial and was
not subject to cross-examination concerning the statement, so the exemption to the definition of
hearsay in MRE 801(d)(1)(C) is inapplicable. And, as no other exemption or exception to the
hearsay rule applies, the statement was inadmissible. MRE 802.

        Furthermore, we reject Stanton-Lipscomb’s reliance on People v Barrera, 451 Mich 261;
547 NW2d 280 (1996), as supporting his argument that the trial court violated his constitutional
right to present a defense by mechanistically excluding Tate’s statement as inadmissible hearsay,
without acknowledging that his right to present evidence in his defense outweighed adherence to
the hearsay rule. In Barrera, the three defendants, Barrera, Johnson, and Musall, were
prosecuted for the murdering a prostitute. A fourth defendant, Copeland, also was charged with
the murder, but tried separately. Id. at 264-265. The three defendants sought to admit
Copeland’s admission to the police that, because he was under the influence of drugs that made
him believe that the victim was his girlfriend, he stabbed the victim while she gave oral sex to
Musall. Id. at 265. Two of the defendants, Barrera and Musall, argued that Copeland’s police
statement was admissible under the hearsay exception for statements against penal interest, MRE
804(b)(3). Id. at 266. The trial court disagreed and excluded the statement. Id. Our Supreme
Court extensively analyzed the requirements for admission of a statement under MRE 804(b)(3).
With respect to the requirement of corroborative evidence, the Court stated that

       the defendant’s constitutional right to present exculpatory evidence in his defense
       and the rationale and purpose underlying MRE 804(b)(3) of ensuring the
       admission of reliable evidence must reach a balance. We believe they may be
       viewed as having an inverse relationship: the more crucial the statement is to the
       defendant’s theory of defense, the less corroboration a court may constitutionally
       require for its admission . . . . [Barrera, 451 Mich at 279.]

The Court concluded that when the reliability of Copeland’s statement was balanced against its
exculpatory value for Barrera and Musall, the defendants’ due process rights required admission
of the statement. Id. at 290-291.

        Barrera is distinguishable from the instant case. In Barrera, the non-testifying
codefendant’s statement qualified for admission under the hearsay exception for statements
against penal interest. MRE 804(b)(3). The Supreme Court ultimately determined that the
statement was sufficiently reliable in consideration of its exculpatory value for the defendants.
Barrera, 451 Mich at 290-291. In this case, Tate’s identification does not qualify under any
hearsay exception, and it is not excluded from the definition of hearsay. Moreover, there are no
indicia of reliability in Tate’s statement. On the contrary, the circumstances of his identification
indicate that he was attempting to exculpate himself by deflecting suspicion away from a co-

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participant. At the time the photographic lineup was conducted, Tate was considered a possible
additional victim. After further investigation, however, he had been identified as a co-participant
for his role in knowingly luring Lane to the location where Stanton-Lipscomb shot him. These
circumstances indicate that he had a motive to deflect suspicion away from Stanton-Lipscomb.
Accordingly, application of the rules of evidence to exclude this hearsay statement did not
violate Stanton-Lipscomb’s constitutional right to present a defense.

                                        III. SENTENCE

                                 A. STANDARD OF REVIEW

        Next, Stanton-Lipscomb argues that because he was only 18½ years old at the time of the
offense, imposition of the statutory sentence of mandatory life imprisonment without the
possibility of parole violates his Eighth Amendment right against cruel and unusual punishment.
Because defendant did not challenge the constitutionality of this statutory penalty at sentencing,
this issue is unpreserved. People v Bowling, 299 Mich App 552, 557; 830 NW2d 800 (2013).
We review unpreserved claims of sentencing error for plain error affecting defendant’s
substantial rights. Id.

                                         B. ANALYSIS

        In Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010), the United
States Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishments Clause
prohibits a sentence of life in prison without parole for a juvenile offender convicted of a non-
homicide crime. Later, in Miller v Alabama, 567 US 460, 489; 132 S Ct 2455; 183 L Ed 2d 407
(2012), the Court held that a mandatory sentence of life imprisonment without the possibility of
parole for juvenile offenders under the age of 18 convicted of murder constitutes cruel and
unusual punishment. Stanton-Lipscomb acknowledges that Graham and Miller do not apply to
him because he was convicted of murder and because he was 18 ½ years old at the time of the
offense. He argues, however, that use of an offender’s eighteenth birthday as the cutoff for when
a mandatory life sentence becomes constitutionally permissible is arbitrary, unscientific, and a
baseless legal fiction, and that the rationale in Miller applies equally to him, rendering his
mandatory sentence of life without parole unconstitutionally cruel and unusual.

        However, the decisions in Graham and Miller are rooted in the Court’s prior decision in
Roper v Simmons, 543 US 551, 574; 125 S Ct 1183; 161 L Ed 2d 1 (2005), in which the Court
stated:

               Drawing the line at 18 years of age is subject, of course, to the objections
       always raised against categorical rules. The qualities that distinguish juveniles
       from adults do not disappear when an individual turns 18. By the same token,
       some under 18 have already attained a level of maturity some adults will never
       reach. For the reasons we have discussed, however, a line must be drawn. The
       plurality opinion in Thompson [v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L
       Ed 2d 702 (1988),] drew the line at 16. In the intervening years the Thompson
       plurality’s conclusion that offenders under 16 may not be executed has not been
       challenged. The logic of Thompson extends to those who are under 18. The age

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       of 18 is the point where society draws the line for many purposes between
       childhood and adulthood. It is, we conclude, the age at which the line for death
       eligibility ought to rest.

The Supreme Court’s statement in Roper reflects that categorical distinctions, albeit imperfect,
are necessary in the administration of justice. This statement also reflects that the age of 18 is
widely accepted as the point at which adult privileges and responsibilities begin in a broad
spectrum of activities. Accordingly, the Eighth Amendment does not bar Michigan from
imposing a mandatory sentence of life without parole on offenders who commit first-degree
murder after reaching the age of 18.

       Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood




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