                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 18, 2017
                Plaintiff-Appellee,

v                                                                    No. 330940
                                                                     Wayne Circuit Court
MIGUEL CORNELL ROBINSON,                                             LC No. 14-010043-01-FC

                Defendant-Appellant.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals as of right from his bench trial conviction for armed robbery, MCL
750.529.1 We affirm.

        This case arises from the armed robbery of the victim as he was riding his bike to the
grocery store. According to the victim, he was cut off from the parking lot entrance by a white
sport utility vehicle, and one of the passengers, who he identified as defendant, stuck a gun in his
face and demanded that he empty his pockets. After robbing the victim of $8, the vehicle sped
away. The following day, the victim was called to the police station to view a live lineup of
possible suspects. Upon seeing the lineup, he immediately stated that defendant was the man
who robbed him.

        Before trial, defendant moved to suppress the victim’s lineup identification and any in-
court identification, arguing that the officer conducting the lineup informed the victim that he
had picked the right person, which the officer denied. Defendant argued that this comment
rendered the lineup unduly suggestive, which would also taint any in-court identification. The
trial court denied defendant’s motion, citing lack of a legal basis. At trial, the victim again
identified defendant as the person who robbed him and confirmed that the person that he
identified in the lineup was the same person that he identified in court.

       Defendant argues that his due process rights were violated when the trial court denied his
motion to suppress the victim’s in-court identification and the evidence of his identification in a


1
    Defendant was sentenced to 21 months to 15 years’ imprisonment.



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live lineup. We disagree.2 “In order to sustain a due process challenge, a 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 Kurylczyk,
443 Mich 289, 302; 505 NW2d 528 (1993). When considering whether a lineup was unduly
suggestive, the trial court should consider not only whether the lineup was suggestive, in that
defendant stood out from the others, but also whether the likelihood of misidentification exists in
light of the witness’s opportunity to view the offender as the crime was being committed, the
witness’s level of attention to the offender, the length of time between the crime and the
witness’s identification, the accuracy of the witness’s initial description of the offender, and the
witness’s level of certainty at the identification. Id. at 306.

        In People v King, 384 Mich 310, 312-313; 181 NW2d 916 (1970), the Supreme Court did
not find it unduly suggestive when, after the witness made his identification, it was indicated to
him that he had identified the individual whom the police suspected. Defendant presents
essentially the same argument in this case. Because his position has already been considered and
rejected by the Supreme Court, he is not entitled to relief on this basis.

        Additionally, a review of the factors in Kurylczyk, supports the trial court’s determination
that the victim had accurately identified defendant as the person who robbed him. Kurylczyk,
443 Mich at 306.3 Even though the victim’s memory was not clear as to some of the details of
the robbery, the victim was positive, both during the lineup and at trial, that it was defendant who
robbed him. The victim immediately identified defendant upon viewing the lineup, which took
place the day after the robbery occurred. Even though the victim testified that he was looking at
the gun during the robbery, he recalled that defendant was sitting in the rear driver’s side seat
(which was the same seat that defendant was in when the vehicle was pulled over on the day of
the robbery), that there was a man with a mask on in the front passenger seat (a mask was found
during a search of the vehicle), and the description of the vehicle (a white, four-door sport utility
vehicle). The evidence supports that the victim made an immediate positive identification of
defendant before the officer allegedly commented that he had picked the right person. Based on
the totality of the circumstances, there was no likelihood of misidentification during the lineup or
during trial. Thus, the lineup identification procedure was not unduly suggestive, and the trial
court did not err in denying defendant’s motion to suppress the lineup and in-court identification.

        Additionally, defendant argues that he was deprived of his constitutional right to effective
assistance of counsel when his trial counsel did not seek a mistrial on the basis of the lineup and


2
  “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). “Clear error
exists if the reviewing court is left with a definite and firm conviction that a mistake has been
made.” Id. We review questions of law relevant to a motion to suppress an identification de
novo. People v Perry, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328409);
slip op at 3.
3
 The trial court, as the fact finder, was in the best position to judge the victim’s credibility.
People v McCray, 245 Mich App 631, 640; 630 NW2d 633 (2001).



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in-court identification. We disagree. There are “two components” to establishing an ineffective-
assistance-of-counsel claim, defendant must first show, “that counsel’s performance was
deficient,” and second, that “the deficient performance prejudiced the defense.” Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).4 Counsel is presumed
effective, and a defendant has a heavy burden to prove otherwise. People v Johnson, 315 Mich
App 163, 174; 889 NW2d 513 (2016). “Trial counsel is not required to advocate a meritless
position.” People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).

         Because we find no merit to defendant’s contention that the pre-trial identification
procedure was unduly suggestive, his claim that his trial counsel was ineffective for failing to
request a mistrial on the basis of that identification is equally without merit. Additionally, while
his trial counsel did not move for a mistrial, he did file a motion to suppress the identification.
At the hearing on that motion, although he could not think of a legal basis to suppress the
identification, defendant’s trial counsel asked the trial court to allow defendant an opportunity to
argue the motion himself. Although that request was denied, we conclude that by filing the
motion and asking the trial court to hear defendant’s argument, defendant’s trial counsel ensured
that the court was aware of defendant’s position with respect to the identification. The fact that
defendant’s position was without merit was not the fault of trial counsel, and defendant was not
denied his constitutional right to effective representation.

       Affirmed.



                                                             /s/ Michael J. Kelly
                                                             /s/ Jane M. Beckering
                                                             /s/ Douglas B. Shapiro




4
 “Whether a defendant has been deprived of the effective assistance of counsel presents a mixed
question of fact and constitutional law, and a trial court’s findings of fact are reviewed for clear
error, while questions of constitutional law are reviewed de novo.” People v Johnson, 315 Mich
App 163, 174; 889 NW2d 513 (2016) (citations omitted).



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