                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 26, 2016
                Plaintiff-Appellee,

v                                                                 No. 326675
                                                                  Wayne Circuit Court
BRIAN ANTHONY PEEPLES,                                            LC No. 14-006941-FC

                Defendant-Appellant.


Before: WILDER, P.J., and MURPHY and O’CONNELL, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree felony murder,
MCL 750.316(1)(b), armed robbery, MCL 750.529, assault with intent to commit murder
(AWIM), MCL 750.83, and possession of a firearm during the commission of a felony (felony-
firearm), second offense, MCL 750.227b. He was sentenced as a fourth-habitual offender, MCL
769.12, to mandatory life imprisonment for the murder conviction, 25 to 50 years’ imprisonment
for the armed robbery conviction, 25 to 50 years’ imprisonment for the AWIM conviction, and to
a five-year prison term for the felony-firearm conviction. We affirm.

        This case arises out of a shooting at a gas station in which defendant, in the course of
committing an armed robbery, shot two victims, one male and one female, at a gas pump after
the victims had arrived together at the station in a vehicle. The male victim perished, and the
female victim survived her wounds. On appeal, defendant first argues that trial counsel was
ineffective for failing to request a Walker1 hearing in order to challenge the admissibility of
incriminating statements made by defendant to the police, where the statements were made in
violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and where
the statements were made involuntarily.2 In that same vein, defendant also maintains that the
trial court erred in failing to sua sponte conduct a Walker hearing.



1
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
2
  Whether counsel was ineffective presents a mixed question of fact and constitutional law,
which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich 575,
579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884

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        We initially note that on the first day of trial, defense counsel moved to suppress
defendant’s incriminating statements on the basis of Miranda, and the trial court denied the
motion after hearing the counterargument by the prosecutor, who essentially set forth the same
reasons we shall enunciate momentarily for rejecting any Miranda claim. The trial court was
clearly not going to entertain a Walker hearing, even if requested. Our review of the record
reveals that defendant’s incriminating statements made to the police, and there were multiple
inculpatory comments, were either spontaneously volunteered, absent any questions or eliciting-
motivated conduct by police, were made after the police simply asked defendant for his name, or
were in response to questions regarding whether defendant had or had tossed a gun. Given these
circumstances, there was no Miranda violation. See People v Attebury, 463 Mich 662, 668-674;
624 NW2d 912 (2001) (recognizing and applying “public safety” exception to Miranda where
police asked the defendant about the location of a handgun that they knew he had earlier
displayed); People v Anderson, 209 Mich App 527, 532; 531 NW2d 780 (1995) (“volunteered
statements of any kind are not barred by the Fifth Amendment and are admissible”); People v
Armendarez, 188 Mich App 61, 73; 468 NW2d 893 (1991) (“the simple asking of a defendant’s
name is not interrogation or an investigative question requiring the issuance of Miranda
warnings”). Accordingly, any efforts by defense counsel to further challenge defendant’s
statements to police or to request a Walker hearing would have been futile and meritless;
therefore, counsel was not ineffective. People v Snider, 239 Mich App 393, 425; 608 NW2d 502


(2001), our Supreme Court, addressing the basic principles governing a claim of ineffective
assistance of counsel, stated:

               To justify reversal under either the federal or state constitutions, a
       convicted defendant must satisfy the two-part test articulated by the United States
       Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
       2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
       (1994). “First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was not
       performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
       supra at 687. In so doing, the defendant must overcome a strong presumption that
       counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
       defendant must show that the deficient performance prejudiced the defense.” Id.
       at 687. To demonstrate prejudice, the defendant must show the existence of a
       reasonable probability that, but for counsel’s error, the result of the proceeding
       would have been different. Id. at 694. “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Id. Because 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. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).




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(2000). And, given our analysis, the trial court did not err in failing to sua sponte conduct a
Walker hearing.

         With respect to the voluntariness component of defendant’s ineffective assistance claim,
it is predicated on the assertion that defendant’s behavior was bizarre at the time of arrest and
when he made the inculpatory statements. We find nothing in the record indicating that, at the
time the statements were made, defendant suffered from a mental illness or was under the
influence of drugs or intoxicants that may have interfered with his ability to freely and
voluntarily make the statements. Instead, the arresting officer, testifying with regard to
defendant’s demeanor, observed that defendant appeared “extremely proud of himself.” Indeed,
the situation reflected braggadocio, not involuntariness. Further, there is no evidence of
coercion, mistreatment, or intimidation on the part of the police before defendant made the
incriminating statements. In short, there is no record evidence to support defendant’s claim that
his volitional capacity had been compromised when he made the statements. Accordingly,
defendant has failed to establish the factual predicate of his claim. And again, counsel is not
required to pursue futile or meritless positions. Reversal is unwarranted.

         Defendant next contends that the trial court erred in admitting three text messages
purportedly received by defendant, given that they constituted inadmissible hearsay. We review
a trial court’s decision regarding the admissibility of evidence for an abuse of discretion. People
v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012). However, “[p]reliminary questions of
law, including whether a rule of evidence precludes the admission of evidence, are reviewed de
novo.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). To the extent defendant’s
challenge to the admission of the text messages was not preserved by specific objection, our
review is limited to plain error affecting substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). We have carefully scrutinized the text messages, and they simply
do not constitute hearsay, either because there is no “assertion” in the text message, MRE 801(a),
or because the text message was not “offered in evidence to prove the truth of the matter
asserted, MRE 801(c). See People v Jones (On Rehearing After Remand), 228 Mich App 191,
203-226; 579 NW2d 82 (1998), mod in part on other grounds 458 Mich 862 (1998). Moreover,
given the strong evidence of guilt, including defendant’s statements implicating himself in the
offenses, any assumed error in admitting the text messages was harmless, lacking any prejudicial
impact. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999); Carines, 460 Mich at
763.3

        Defendant next argues that the trial court erred in admitting text messages connected to a
particular cell phone number relative to the day of and the days following the shooting, where
the messages were not sufficiently authenticated as having actually been sent to or received by
defendant. MRE 901(a) governs the authentication of evidence and provides:

                  The requirement of authentication or identification as a condition
          precedent to admissibility is satisfied by evidence sufficient to support a finding
          that the matter in question is what its proponent claims.


3
    Given our analysis, defendant’s associated ineffective assistance claim is also rejected.

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         Authentication can be accomplished through the testimony of a witness with knowledge
“that a matter is what it is claimed to be.” MRE 901(b)(1); see also People v McDade, 301 Mich
App 343, 352-353; 836 NW2d 266 (2013). Here, a witness, who has a child with defendant,
identified the phone number at issue as the phone number that she knew defendant to use; it was
the number that defendant would call her from and the number that she used to contact him.
Significantly, the witness testified that defendant called her from the phone number in the
morning on the day following the shooting, during which conversation they discussed the news
reports of the crime and defendant shared details of the shooting incident. Further, under MRE
901(b)(4), authentication can be accomplished through distinctive characteristics taken in
conjunction with the circumstances. Here, the special agent who analyzed the certified phone
records associated with the particular phone number and the timeframe surrounding the shooting
testified that defendant’s name was referenced 91 times in text messages, including on the day of
and after the shooting. The multiple references to defendant’s name in the text messages was
certainly a distinct characteristic that, taken in conjunction with the testimony identifying the
phone number as defendant’s phone number, indicated that defendant was actually using the
phone and sent and received the text messages, as the prosecution claimed. On this record, the
evidence was sufficient to authenticate the text messages as being sent from and received by
defendant, and the trial court did not err in admitting them. Accordingly, defendant’s associated
claim of ineffective assistance of counsel must also fail.

        Finally, defendant contends on appeal that there was insufficient evidence to establish his
identity as the perpetrator of the offenses, but only if the text messages and his incriminating
statements made to police are not taken into consideration. Given that we have held that the text
messages and defendant’s incriminating statements were admissible, defendant’s sufficiency
argument necessarily fails. Moreover, even were we to exclude consideration of the statements
and text messages, there was sufficient evidence of identification.4 “[I]dentity is an element of
every offense.” People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). “[P]ositive



4
  We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial
– in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime. Carines, 460
Mich at 757. The prosecution need not negate every reasonable theory of innocence, but need
only prove the elements of the crime in the face of whatever contradictory evidence is provided
by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all
conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619;
751 NW2d 57 (2008).

                                                -4-
identification by witnesses may be sufficient to support a conviction of a crime.” People v
Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). Further, “[t]he credibility of
identification testimony is a question for the trier of fact that we do not resolve anew.” Id.

        Here, the female shooting victim identified defendant as being in the gas station with her
shortly before the shootings, and she testified that he attempted to converse with her, although
she could not identify defendant as the shooter. Video footage obtained from the gas station’s
security camera was employed to track the man who spoke to the female victim inside the station
back to the victims’ vehicle, where the individual made maneuvers consistent with the robbery
and shootings. Also, the witness mentioned earlier who shares a child with defendant testified
that it was defendant in the video footage from the gas station. Moreover, she testified that
defendant made statements to her on the day after the shooting in which he implicated himself in
the crimes. Additionally, a bicyclist testified that he saw defendant with a gun at the victims’
vehicle just after shots were fired. This evidence was more than sufficient to identify defendant
as the perpetrator. And when his inculpatory statements to the police and the text messages are
added to the mix, the evidence of defendant’s guilt becomes overwhelming. There is no basis for
reversal.

       Affirmed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ William B. Murphy
                                                            /s/ Peter D. O'Connell




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