People of Michigan v. Marlon Demario Ezell ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 28, 2019
Plaintiff-Appellee,
v No. 341947
Muskegon Circuit Court
MARLON DEMARIO EZELL, LC No. 16-005834-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 341949
Muskegon Circuit Court
DARNELL LAMONT DURDEN, LC No. 16-006045-FC
Defendant-Appellant.
Before: METER, P.J., and SAWYER and CAMERON, JJ.
PER CURIAM.
In these consolidated appeals, defendants, Marlon Demario Ezell and Darnell Lamont
Durden, appeal by right their jury convictions of armed robbery, MCL 750.529, and carrying or
possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b, after a
joint trial. The trial court sentenced Ezell as a fourth-offense habitual offender, MCL 769.12, to
serve 20 to 30 years in prison for his armed robbery conviction and to serve 2 years in prison for
his felony-firearm conviction, which sentence had to be served consecutively to his sentence for
armed robbery. The trial court gave Ezell credit for 423 days already served. The trial court
sentenced Durden as a fourth-offense habitual offender to serve 20 to 30 years in prison for his
armed robbery conviction and to serve 2 years in prison for his felony-firearm conviction, which
sentence had to be served consecutive to and preceding his sentence for armed robbery. The trial
court did not give him any credit for time served because Durden was on parole at the time of
these offenses. The trial court also ordered Durden to serve the sentences for the present
offenses after completing his sentence for the conviction for which he was on parole.
I. BASIC FACTS
Testimony established that Kim Westerland, Kevin Westerland, Jonathan Robertson, and
Paul Robertson shared a home in Muskegon, Michigan. Kim and Kevin had medical marijuana
patient cards and grew marijuana in the home.
In the evening of October 23, 2016, Deshawn Brown arranged to purchase a quarter
pound of marijuana from Thomas Roberts, who was an acquaintance of Kim and Kevin. Roberts
arranged for Kim to sell the marijuana to Brown at Kim’s home. Roberts walked to the home
with Brown, and Kim let them inside. While Kim was weighing out the marijuana in the
kitchen, Brown went to the door and purportedly let three other men inside. Testimony
established that Ezell and Durden were two of the three men. Brown and his three companions
forced the home’s occupants into the kitchen at gunpoint, robbed the home of the marijuana, and
took cash. Police officers arrested Brown and Ezell that night and later located Durden. The
fourth participant in the robbery had not been caught by the time of trial.
II. EZELL’S CLAIMS OF ERROR
A. SUFFICIENCY OF THE EVIDENCE: IDENTITY
Ezell first challenges the sufficiency of the evidence at trial. This Court reviews a
challenge to the sufficiency of the evidence by examining the “record evidence de novo in the
light most favorable to the prosecution to determine whether a rational trier of fact could have
found that the essential elements of the crime were proved beyond a reasonable doubt.” People v
Roper, 286 Mich. App. 77, 83; 777 NW2d 483 (2009).
On appeal, Ezell has not challenged the sufficiency of the evidence that certain persons
committed a larceny of marijuana from the home at 652 Hill Avenue, that those persons used
force or violence or assaulted a person who was present at the home during the larceny, or that
those persons possessed a dangerous weapon during the course of committing the larceny. See
People v Gibbs, 299 Mich. App. 473, 490-491; 830 NW2d 821 (2013) (stating the elements of
armed robbery). He also does not challenge whether the evidence established that those persons
carried or possessed a firearm during the robbery. See MCL 750.227b(1). He maintains that
there was insufficient evidence to permit a reasonable jury to find beyond a reasonable doubt that
he was one of those persons. See People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008)
(noting that identity is an element of every offense).
Kim testified that he and his roommates were robbed by Brown and three other black
men who rushed into the house after Brown let them inside. Kim admitted that he did not get a
good look at the two men who went into the living room, but he was certain that Brown and an
unidentified black man who was heavier set came into the kitchen and stood over them while the
other two men searched the home.
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Kevin’s testimony matched Kim’s testimony. Kevin stated that—counting Brown—four
black men participated in the robbery. Two of those men came into the living room. Although
Kim did not get a good look at those two men, Kevin did. Kevin testified that Ezell was one of
those two men. And Kevin had good reason to recall Ezell. Kevin said that Ezell “put” a gun
“toward [his] face and told [him] to move to the kitchen.” Kevin identified Durden as the other
man who came into the living room, and he said that Durden also had a gun and began tearing up
the living room as Ezell led him into the kitchen. Kevin stated that Ezell struck him in the back
of the head with his handgun because he was apparently unhappy with how slowly Kevin was
moving. Kevin related that Brown and a heavy set man were in the kitchen. He also recalled
that Ezell threatened to kill them if they called the police department. Kevin also identified Ezell
in a corporeal lineup on the next day and identified Ezell in court. Kevin stated that he had no
doubt that Ezell was one of the men who robbed him at gunpoint.
Paul’s testimony was a bit unclear, but he generally testified consistently with Kim and
Kevin. He stated that there were four men robbing the home, which included Brown. He said
that the first man who came in after Brown went to the door was a large bearded man. The large
man handed Brown a handgun and hit Paul on the head with a handgun while two other men
went into the living room. Paul thought that Durden was the man who escorted Kevin to the
kitchen, which was contrary to Kevin’s testimony, but he agreed that Ezell was the one who
threatened to kill everyone as the robbers left the home.
Although there were some discrepancies, these three witnesses agreed on several
important points. All three agreed that two of the men—Brown and the heavy set man—came
into the kitchen and that the two other men went into the living room. They also agreed that at
least two men were armed, that the men worked in concert to steal the marijuana, and that the
men used force or threats of violence to accomplish the robbery. Kim could not identify Ezell
and Durden at trial, but—contrary to Ezell’s suggestion on appeal—he did not testify that they
were not involved. Rather, he stated that they were not the men who initially came into the
kitchen. Thus, his testimony did not contradict Kevin’s testimony. And Kevin emphatically
identified Ezell as one of the men who came into the living room. Indeed, he stated that Ezell
put a gun in his face, ordered him to the kitchen, and struck him when he moved too slowly.
Paul’s testimony conflicted with Kevin’s as to whether Ezell escorted Kevin to the kitchen, but
Paul admitted that he had been frozen with fear in the kitchen and then struck by the heavy set
man before getting down on the floor. Nevertheless, he identified Durden as one of the two men
who went to the living room and he testified that Ezell was the man who threatened them. Thus,
two of the three robbery victims identified Durden and Ezell as coperpetrators of the armed
robbery and the one who could not identify them admitted that he did not get a good look at the
two men who went into the living room. For that reason, he could neither confirm nor deny
whether they were the two men who went into the living room.
This testimony was—standing alone—sufficient to permit a reasonable finder of fact to
find beyond a reasonable doubt that Ezell participated in the robbery and that he carried or
possessed a firearm during the commission of the robbery. See MCL 750.227b(1); Gibbs, 299
Mich. App. at 490-491. As noted, there were some inconsistencies between the testimonies of
Paul and Kevin with regard to the specific actions taken by Ezell during the robbery, but both
men agreed that Ezell participated. A reasonable jury could find that Paul and Kevin correctly
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identified Ezell as a participant, but that Kevin’s account of Ezell’s specific actions better
described Ezell’s role. That is, the jury could accept Paul’s identification of Ezell as the
perpetrator who threatened them all, which was consistent with Kevin’s testimony, but still
conclude that Paul was mistaken when he identified Durden as the man who escorted Kevin to
the kitchen. See People v Bowyer, 108 Mich. App. 517, 522; 310 NW2d 445 (1981) (“It is for the
jury to decide who to believe and what testimony of a particular witness to believe.”). Further, a
reasonable jury could infer that Kim could not identify Ezell because Ezell was one of the two
men who went into the living room and not because he was not in fact present for the robbery.
See People v Hardiman, 466 Mich. 417, 428; 646 NW2d 158 (2002) (stating that it is for the fact-
finder alone to “determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences”). When examined in the light most
favorable to the prosecution, see People v Wolfe, 440 Mich. 508, 514-515; 489 NW2d 748
(1992), the victims’ testimonies were together sufficient to support a finding beyond a
reasonable doubt that Ezell was one of the perpetrators of the armed robbery, see Roper, 286
Mich. App. at 83.
In addition to the victims’ testimonies, Brown testified at trial and identified Ezell as one
of the men who assisted him in the robbery. Brown’s testimony appeared at times to be
implausible and was highly inconsistent with the testimonies of the victims. For example,
Brown suggested that the robbery was not planned ahead of time. Indeed, he testified that he had
no idea that there was going to be a robbery until Ezell appeared at the door of the home and
handed him a weapon. Yet his other statements belie the purported lack of planning. Brown
testified that he arranged a large marijuana purchase and used Malachi Walker’s phone to do so.
He further stated that Walker’s close friends, Ezell and Durden, just happened along at that
moment. They then showed up at the house fortuitously just as Brown was approaching the
door. The other testimony and evidence further showed that the four men split up, took control
of the home’s occupants, searched the home for marijuana, and effected their escape in relatively
short order. These statements, when considered with the other testimony and evidence, strongly
suggest that the marijuana purchase was a ruse and that Brown planned the robbery with his
coconspirators.
Brown also denied that there was a fourth coconspirator, despite the fact that the victims
all agreed that there was a fourth perpetrator who was heavy set and stayed in the kitchen the
whole time. Brown claimed that Ezell was the only one in the kitchen and that he stood over the
victims while Brown and Durden searched for the marijuana. But he also stated that Ezell
handed him his gun by that point. So—in his version—the unarmed Ezell stood guard over the
four victims by himself while Brown and Ezell searched the living room for marijuana. Brown’s
testimony was so implausible in light of the victim’s testimony that a reasonable jury could infer
that he was lying about some of the events in order to protect the fourth perpetrator and to
minimize his own culpability. But even so, the jury was not required to reject all of Brown’s
testimony. As this Court has recognized, even liars tell many truths, and it is for the jury to
“ ‘sift the true from the false.’ ” People v Miceli, 35 Mich. App. 176, 178; 192 NW2d 335 (1971),
quoting Jewell v Kelley, 155 Mich. 301, 305; 118 N.W. 987 (1909). For that reason, contrary to
Ezell’s claims on appeal, the jury could reject Brown’s recitation of Ezell’s involvement to the
extent that his testimony conflicted with the victims’ testimonies but still find him credible with
regard to his claim that Ezell did in fact participate in the robbery.
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As our Supreme Court has emphasized, this Court must not interfere with the fact-
finder’s role in deciding the weight and credibility to give to a witness’s testimony when
reviewing the sufficiency of the evidence; this Court may not “determine the credibility of
witnesses”—“no matter how inconsistent or vague that testimony might be.” People v Mehall,
454 Mich. 1, 6; 557 NW2d 110 (1997). Rather, when the question is one of credibility posed by
diametrically opposed versions of the events in question, courts must leave the test of credibility
with the trier of fact. See People v Lemmon, 456 Mich. 625, 646-647; 576 NW2d 129 (1998).
This Court will not only defer to the jury’s assessment of the weight and credibility to be
afforded the various witnesses’ testimonies, it must resolve all conflicts in the evidence in favor
of the prosecution. See Wolfe, 440 Mich. at 515 (stating that the reviewing courts must put the
evidence that was most favorable to the prosecution together and discard the rest).
Finally, there was circumstantial evidence tending to corroborate the testimonies
implicating Ezell in the robbery. Testimony showed that police officers used a canine to track
the perpetrators from the home where the robbery occurred to Walker’s home. When the officers
arrived, they observed three men standing near a grill. After an officer ordered the men to the
ground, one of the men dropped a handgun and all three tried to flee. Ezell was apprehended
after fleeing to a nearby park. The officers also found a large quantity of marijuana including
marijuana in jars that the evidence tended to show came from the robbery at issue. The fact that
Ezell was in the company of two of the perpetrators and the stolen marijuana when the officers
arrived within a relatively short time of the robbery—while in theory explainable as a
coincidence—also tended to corroborate the evidence that he was a participant in the robbery.
See Hardiman, 466 Mich. at 428.
Brown’s testimony that Ezell tried to bribe Brown into taking the fall for the robbery,
used threats against Ezell, and coerced him into submitting a letter of retraction were also
evidence that he was conscious of his guilt. See People v Sholl, 453 Mich. 730, 740; 556 NW2d
851 (1996) (stating that evidence that the defendant threatened a witness is admissible to prove
that the defendant was conscious of his or her guilt); People v Salsbury, 134 Mich. 537, 569; 96
N.W. 936 (1903) (stating that “evidence that a defendant has attempted to suppress testimony or
induce perjury is admissible, and tends to show guilt”). And the evidence that he was conscious
of his guilt lent credibility to Brown’s identification of Ezell as a perpetrator. The testimony that
Ezell tried to influence Brown also strongly undermined the credibility of Brown’s letter of
retraction. It was for the jury to decide the import of the evidence that Ezell tried to influence
Brown’s statements and testimony. See Sholl, 453 Mich. at 740. The jury was free to reject—
and apparently did reject—Brown’s letter of retraction as a complete fabrication drafted at
Ezell’s instigation. This Court will not second guess the jury’s assessment of the weight and
credibility to be given the letter. See Mehall, 454 Mich. at 6.
There was significant eyewitness testimony that identified Ezell as one of the perpetrators
of the armed robbery at issue. That testimony was sufficient to allow a reasonable jury to find
beyond a reasonable doubt that Ezell was one of the perpetrators of the armed robbery. See
Roper, 286 Mich. App. at 83.
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B. OTHER-ACTS TESTIMONY
Ezell next argues that the trial court plainly erred by allowing Brown to testify that Ezell
engaged in various other acts to prevent Brown from testifying against Ezell. In the alternative,
he argues that defense counsel was ineffective for failing to object to the improper other-acts
testimony.
This Court generally reviews a trial court’s decision to allow the admission of evidence
for an abuse of discretion. Roper, 286 Mich. App. at 90. However, because Ezell did not raise
this issue before the trial court, it is unpreserved for appellate review. See People v Aldrich, 246
Mich. App. 101, 113; 631 NW2d 67 (2001). This Court reviews an unpreserved challenge to the
admission of evidence for plain error affecting the defendant’s substantial rights. People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). In order to establish a plain error that
warrants relief, the defendant must show that the error was plain or obvious and affected the
outcome of the lower court proceedings. Id.
“This Court reviews de novo, as a question of constitutional law, the determination that a
particular act or omission fell below an objective standard of reasonableness under prevailing
professional norms and prejudiced the defendant’s trial.” People v Gioglio (On Remand), 296
Mich. App. 12, 19-20; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich. 864
(2012). If the trial court made findings of fact after an evidentiary hearing, this Court reviews
those findings for clear error. Id. at 20. When, as here, no evidentiary hearing was held, our
review is limited to mistakes apparent on the record. People v Anderson, 322 Mich. App. 622,
628; 912 NW2d 607 (2018).
Generally, testimony and evidence of other acts are not admissible to prove that the
defendant has bad character and that he or she acted in conformity with his or her bad character.
Roper, 286 Mich. App. at 91; see also MRE 404(a) (providing generally that “[e]vidence of a
person’s character or a trait of character is not admissible for the purpose of proving action in
conformity therewith”) and MRE 404(b)(1) (stating that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in conformity
therewith”). As such, “[i]f the proponent’s only theory of relevance is that the other act shows
defendant’s inclination to wrongdoing in general to prove that the defendant committed the
conduct in question, the evidence is not admissible.” People v VanderVliet, 444 Mich. 52, 63;
508 NW2d 114 (1993). Testimony and evidence concerning other acts may, however, properly
be admitted to prove something other than character, even though the testimony and evidence
also implicates character. Roper, 286 Mich. App. at 92. While MRE 404(b) lists permissible uses
for other-acts evidence, that list is not exhaustive. See People v Sabin (After Remand), 463 Mich.
43, 56; 614 NW2d 888 (2000). As such, other-acts evidence may be admissible if it is relevant
for any purpose other than to prove action in conformity with character. Id.
At trial, the prosecutor elicited testimony from Brown about several incidents in which
Ezell tried to directly influence Brown to mislead police officers. Brown testified that Ezell
threatened him, offered him money to take the fall for the robbery, and later caused him to draft a
letter of retraction that implicated unknown persons in the crime. The prosecutor could properly
present that evidence to establish that Ezell was conscious of his guilt. See Sholl, 453 Mich at
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740; Salsbury, 134 Mich. at 569. Because the testimony was admissible for a purpose other than
to prove character and action in conformity with character, MRE 404(a) and MRE 404(b)(1) did
not apply. See Sabin, 463 Mich. at 56. Ezell has not identified any other bases for excluding the
evidence. Consequently, there was no plain error, let alone plain error that affected Ezell’s
substantial rights. Carines, 460 Mich. at 763.
Further, Ezell cannot show that defense counsel’s failure to object to this testimony on
the ground that it amounted to improper other-acts testimony constituted ineffective assistance of
counsel. Defense counsel had no obligation to make a meritless objection. See People v Riley,
468 Mich. 135, 142; 659 NW2d 611 (2003). Accordingly, because the testimony was admissible,
defense counsel’s conduct was not deficient and could not have resulted in impermissible
prejudice. See Gioglio, 269 Mich. App. at 22.
C. EZELL’S CLAIMS OF ERROR SUBMITTED UNDER STANDARD 4
Ezell also raised several claims of error in a brief that he submitted on his own behalf
under Supreme Court Administrative Order No. 2004-6, Standard 4.
1. SUGGESTIVE IDENTIFICATION
We first address Ezell’s claim that the trial court erred when it allowed testimony about
Kevin’s pretrial identification of Ezell at a corporeal lineup. He maintains that the identification
was unduly suggestive and tainted Kevin’s later identification at trial.
This Court reviews for clear error the trial court’s decision whether a pretrial
identification procedure was unduly suggestive. People v Kurylczyk, 443 Mich. 289, 303; 505
NW2d 528 (1993) (opinion by GRIFFIN, J.). A trial court clearly errs when this Court is left with
the definite and firm conviction that a mistake has been made. Id. However, because this claim
of error is unpreserved, this Court’s review is for plain error affecting Ezell’s substantial rights.
Carines, 460 Mich. at 763.
An unduly suggestive pretrial identification procedure can violate a defendant’s right to
due process. Kurylczyk, 443 Mich. at 302. Due process concerns arise from a pretrial
identification procedure “when law enforcement officers use an identification procedure that is
both suggestive and unnecessary.” Perry v New Hampshire, 565 U.S. 228, 239-240; 132 S. Ct.
716; 181 L. Ed. 2d 694 (2012). The defendant bears the burden to prove that an identification
procedure was unduly suggestive in light of the totality of the circumstances. Kurylczyk, 443
Mich. at 302.
On appeal, Ezell challenges Kevin’s identification of him at a corporeal lineup. Ezell
does not, however, argue that the makeup of the corporeal lineup was unduly suggestive, nor
does he argue that the officers who conducted the lineup suggested a particular identification.
Rather, he maintains that the officers conducted the lineup in a way that allowed Kevin to hear
any identifications made by one of the earlier witness also brought to the lineup.
Detective Matthew Kolkema testified that he participated in the corporeal lineups held on
the morning of October 25, 2016. He stated that the viewing window through which the
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witnesses looked at the group of persons to be identified was in a hallway. He said that the
general public could not enter the hallway from the waiting room because the door to the hall
was locked. There were four witnesses there that day. The four witnesses—the two Robertsons,
Roberts, and Kevin—waited in the main room before being taken to the lineup. The first witness
was Roberts. An officer escorted him through the door and into the hall to look through the
window at the lineup with Ezell in it. He was then brought into another room to ensure that he
did not have any contact with a subsequent witness. They followed this same procedure with the
next witnesses. Kolkema conceded that a witness who had already finished his viewing could
possibly have heard a later witnesses’ identification from the room where the witness was asked
to wait. He stated, however, that a witness would not have been able to hear any identification
made by a witness before he was escorted down the hall.
Ezell’s claim that the officers used an unduly suggestive pretrial identification procedure
with Kevin depends entirely on his contention that Kevin could have heard an earlier witness’s
identification of him, which in turn tainted Kevin’s identification. Yet Kolkema testified that it
was not possible for a witness to hear an earlier witness’ identification; it was only possible that
a witness who had already conducted his lineup might have heard a subsequent witness’s
identification. Because there was no evidence that Kevin could have heard an earlier
identification, Ezell has not shown that his lineup involved any suggestive procedures. See
Kurylczyk, 443 Mich. at 302-303. There was no plain error. See Carines, 460 Mich. at 763.
2. JOINT TRIAL
Ezell next argues that the trial court erred by holding a joint trial. This Court “reviews de
novo a trial court’s interpretation of the law or the application of a constitutional standard to
uncontested facts.” People v Martin, 271 Mich. App. 280, 297; 721 NW2d 815 (2006). This
Court reviews a trial court’s decision on whether to hold a joint or separate trial for an abuse of
discretion. See People v Etheridge, 196 Mich. App. 43, 53; 492 NW2d 490 (1992). However,
this Court reviews unpreserved claims of constitutional error for plain error affecting the
defendant’s substantial rights. Carines, 460 Mich. at 763.
Public policy favors joint trials, and a defendant who wishes to have a separate trial must
make an affirmative showing that the joint trial will prejudice his or her substantial rights.
Etheridge, 196 Mich. App. at 53. On appeal, Ezell claims that the joint trial violated his right to
confront the witnesses against him. See US Const, Am VI. More specifically, he maintains that
the admission of Durden’s statement implicated him and, because Durden exercised his right not
to testify, the admission of the statement at a joint trial prejudiced his rights.
The Sixth Amendment right to confront the witnesses against an accused applies to
witnesses who “bear testimony” against the accused. People v Bruner, 501 Mich. 220, 227; 912
NW2d 514 (2018) (quotation marks and citation omitted). As our Supreme Court has observed,
joint trials can present confrontation problems: “Joint trials with a single jury present a special
problem. Some evidence may be admissible as to one defendant but violate a codefendant’s
confrontation right. When that is the case, a court must either exclude the testimony or take
measures to eliminate the confrontation problem.” Id. When a codefendant’s statement “was not
incriminating on its face, and became so only when linked with evidence introduced later at
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trial,” it is not necessary to exclude the statement. Richardson v Marsh, 481 U.S. 200, 208; 107 S
Ct 1702; 95 L. Ed. 2d 176 (1987). “[T]he Confrontation Clause is not violated by the admission
of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant’s name, but any reference to his or her
existence.” Id. at 211. Thus, a statement by a defendant may be admitted at a joint trial without
violating the Confrontation Clause if the statement has been redacted in such a way that it does
not implicate the codefendant. See Bruner, 501 Mich. at 227-228.
At trial, Kolkema testified that he tried to interview Durden after Durden’s arrest, but
Durden refused to give a statement. Kolkema, however, provided a cell phone to Durden and
left the room. He then monitored Durden’s activities from another room. He heard Durden
make a call in which he told the other person to be “strong,” “not to cry,” and then said that he
would take a “COBBS”1 deal if he got the opportunity because he did not want to “do more than
six years.”
Although Durden’s statement about a Cobbs deal implied that Durden was conscious of
his own guilt, among other possible inferences, nothing within his statement implicated Ezell in
any way. Durden did not identify Ezell and did not describe any details that might—when
considered with other evidence—directly implicate Ezell in the robbery. Under these
circumstances, there was nothing within the statement that could be fairly characterized as
having “borne testimony against [Ezell] in any Sixth Amendment sense.” Bruner, 501 Mich. at
228. Thus, the admission of this statement did not violate Ezell’s right to confront Durden.
Ezell’s only basis for challenging the joint trial involved Ezell’s claim that the joint trial
prevented him from confronting Durden about his statement. Because Durden’s statement did
not involve testimony against Ezell, Ezell had no right to confront Durden. Ezell has not shown
that the joint trial prejudiced his substantial rights. See Etheridge, 196 Mich. App. at 53. There
was no plain error. See Carines, 460 Mich. at 763.
3. IMPROPER JUDICIAL FACT-FINDING
Ezell next complains that the trial court plainly erred by scoring the sentencing guidelines
using facts not found by the jury or that he admitted. However, the trial court sentenced Ezell
under the now advisory sentencing guidelines as provided under the decision in People v
Lockridge, 498 Mich. 358; 870 NW2d 502 (2015). Because the sentencing guidelines are
advisory, the trial court could make findings of fact not found by the jury without violating
Ezell’s rights under the Sixth Amendment, see People v Biddles, 316 Mich. App. 148, 158-161;
896 NW2d 461 (2016), and he necessarily does not qualify for a remand, see Lockridge, 498
Mich. at 397 (stating that the remand procedures apply to sentences imposed on or before July 29,
2015).
1
A Cobbs deal refers to a form of sentencing negotiation described in People v Cobbs, 443 Mich.
276; 505 NW2d 208 (1993).
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The trial court did not err when it scored the sentencing variables on the basis of judicial
findings of fact.
4. INEFFECTIVE ASSISTANCE
Ezell finally argues that he did not receive effective assistance of counsel at trial. “To
establish a claim of ineffective assistance of counsel, the defendant must show that ‘counsel’s
representation fell below an objective standard of reasonableness’ under prevailing professional
norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” Gioglio, 296 Mich. App. at 22, quoting
Strickland v Washington, 466 U.S. 668, 688, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). Under
the first prong, defendant must identify those acts or omissions that he contends were not the
result of reasonable professional judgment. Gioglio, 296 Mich. App. at 22. The reviewing court
must then determine whether the identified acts or omissions were outside the wide range of
professionally competent assistance under the totality of the circumstances. Id.
Ezell first claims that defense counsel was ineffective for failing to strike a biased juror,
or, at the very least, to further investigate the potential juror’s bias.
On the first day of trial, the trial court asked 13 of the potential jurors to be seated for voir
dire. The court recorder recorded the names of those 13 potential jurors. The trial court also
admonished the other potential jurors to pay attention because they might be called if one the 13
were to be excused. The parties then questioned the 13 potential jurors. Thereafter, the court
recorder appeared to indicate the name of a potential juror if the potential juror was one of the 13
seated for voir dire and identified the potential juror as “unknown” if not one of the 13 seated
jurors.
After questioning the potential jurors for some time, Ezell’s defense counsel asked the
potential jurors about whether they would hold it against defendants if they chose to exercise
their right not to testify. An unknown potential juror answered, “I think that I would have a hard
time believing if they’re not trying to stand up for themselves.” After that colloquy, the lawyers
all agreed that they did not wish to strike any of the 13 jurors for cause. Thereafter, the parties
peremptorily excused several jurors, and the trial court asked each of the subsequently called
potential jurors if he or she heard all of the previously asked questions and whether the juror had
heard anything that would create a problem for the juror. The court also asked each juror if he or
she could be fair and impartial. Each of the substituted potential jurors who ended up on the jury
answered affirmatively.
Ezell had the burden to prove the factual predicate for his claim of ineffective assistance
of counsel. See People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001). Ezell did not meet
that burden.
There is no evidence that the potential juror who expressed concern about a defendant’s
failure to testify was part of the original 13 potential jurors selected for voir dire. Indeed, the fact
that the potential juror was identified as “unknown” suggests that the juror was not part of the
original 13 persons selected. Further, there is no record evidence that the unknown juror
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eventually replaced an excused juror. Even if the unknown potential juror did end up being
selected, there is no evidence that he or she was not subsequently peremptorily excused. In the
absence of evidence that the juror actually served on Ezell’s jury, this Court cannot fault defense
counsel for failing to further investigate or asking to excuse the juror. Ezell’s defense counsel
would have no need to further explore the potential juror’s bias if the unknown potential juror
never got selected for the jury. Likewise, there would be no need to further explore the potential
juror’s bias if defense counsel—or any of the other lawyers—excused the potential juror
peremptorily. See Riley, 468 Mich. at 142 (stating that defense counsel has no obligation to make
a meritless request). Ezell failed to demonstrate that defense counsel’s conduct of voir dire fell
below an objective standard of reasonableness under prevailing professional norms or that he
was prejudiced by defense counsel’s failure to object. See Gioglio, 296 Mich. App. at 22.
Ezell also argues that defense counsel provided ineffective assistance by failing to object
to the admission of Durden’s statement about a Cobbs agreement because that statement
implicated Ezell and Ezell did not have the opportunity to cross-examine Durden. As already
discussed, Durden’s statement did not amount to testimony against Ezell. Accordingly, Ezell did
not have the right to confront Durden about the statement, and defense counsel cannot be faulted
for failing to object on that basis. See Riley, 468 Mich. at 142.
Ezell has not shown that defense counsel provided ineffective assistance.
III. DURDEN’S CLAIMS OF ERROR
A. MIRANDA VIOLATION
For his first claim of error on appeal, Durden argues that the trial court should have
suppressed the testimony about the statements that he made on the phone after he asserted his
right to remain silent. This Court reviews the trial court’s factual findings underlying its decision
on a motion to suppress for clear error. People v Vaughn, 291 Mich. App. 183, 188; 804 NW2d
764 (2010), vacated in part on other grounds 491 Mich. 642 (2012). However, this Court reviews
de novo questions of constitutional law implicated by the decision in Miranda v Arizona, 384 U.S.
436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). Vaughn, 291 Mich. App. at 188.
In Miranda, the Supreme Court of the United States recognized that there was a
heightened risk of improper coercion when a suspect is subjected to a custodial interrogation.
Miranda, 384 U.S. at 455-456. The potential for improper coercion implicated the “Fifth
Amendment right to be free from compelled self-incrimination.” Vaughn, 291 Mich. App. at 188,
citing Miranda, 384 U.S. at 458. To protect against coercion of this nature, the interrogating
officer must advise the suspect of his or her fundamental rights before conducting a custodial
interrogation. Vaughn, 291 Mich. App. at 188-189. “ ‘[U]nless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against’ ” the person interrogated. Id. at 189, quoting Miranda, 384
U.S. at 479. Moreover, if the defendant asserts his or her right to remain silent in any manner, the
interrogation must cease. People v White, 493 Mich. 187, 194; 828 NW2d 329 (2013), citing
Miranda, 384 U.S. at 473-474. “If the police continue to ‘interrogate’ the defendant after he has
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invoked his right to remain silent, and the defendant confesses as a result . . . , the confession is
inadmissible.” White, 493 Mich. at 194, citing Miranda, 384 U.S. at 444-445.
The trial court took testimony about Durden’s interrogation on the second day of trial
before the jury was seated. Detective Kolkema testified that he interviewed Durden at the
Muskegon Police Department after Durden was taken into custody. He stated that he read
Durden his rights and that Durden acknowledged those rights. Kolkema said that Durden
refused to talk to him and, for that reason, he ceased questioning Durden. Kolkema could not
recall if Durden asked to use his phone or whether he offered to lend his cell phone to Durden.
Nevertheless, he did give Durden his cell phone and left the room. Kolkema went to another
room with cameras to observe what Durden would do. Kolkema rather candidly admitted that he
“[m]ore than likely [] offered” the phone to Durden “fully aware that he may say something
that’s to my benefit.”
The trial court determined that offering Durden a cell phone did not amount to a custodial
interrogation. It then wondered if the statement was even relevant. The prosecutor asserted that
the recording showed that Durden called his mother; he repeatedly referred to the other party as
“ma” and told her to stop crying and be strong. He then said, they “found my phone” and “I told
them it was stolen.” Durden then purportedly said: “If they come to me with a Cobbs of five or
six years I’m taking it.” The trial court determined that the statement was probative and that it
was for the jury to decide whether the statement related to the charge at issue.
On appeal, there is no dispute that Durden was in custody, had been read his rights,
and—in some fashion or another—asserted his right to remain silent. The only question is
whether Kolkema’s decision to provide Durden with a cell phone amounted to interrogation. See
White, 493 Mich. at 195. The term “interrogation” refers to both express questioning and “its
functional equivalent”: “that is to say, the term ‘interrogation’ under Miranda refers not only to
express questioning, but also to any words or actions on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode
Island v Innis, 446 U.S. 291, 300-301; 100 S. Ct. 1682; 64 L. Ed. 297 (1980). Thus, the question on
appeal is whether Kolkema should have known that his offer of a cell phone to Durden was
likely to lead to an incriminating response.
The Supreme Court of the United States explained that police officers cannot be held
accountable for the unforeseeable results of their words and actions. Id. at 301-302.
Additionally, the officer’s underlying intent is generally not relevant; rather, the test examines
whether the objective purpose of the act was to illicit an incriminating response. White, 493
Mich. at 196. If an objective observer could plausibly conclude that the officer’s remarks or
actions were done for a purpose other than to elicit an incriminating response, the remarks or
actions cannot be said to have been done with knowledge that the remarks or acts were likely to
elicit an incriminating response. Id. at 201 n 4. It is not enough to show that the officer was
aware that there was a possibility that the suspect may make an incriminating response, or even
that the officer hoped that he would do so. See Arizona v Mauro, 481 U.S. 520, 529; 107 S. Ct.
1931; 95 L. Ed. 2d 458 (1987) (rejecting the contention that sending a suspect’s wife in to speak
with him amounted to an interrogation because “[o]fficers do not interrogate a suspect simply by
hoping that he will incriminate himself”).
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Although Kolkema indicated that he offered Durden the phone in the hope that he might
say something to Kolkema’s benefit, he had no way of knowing whether Durden would in fact
make an incriminating statement. Indeed, Kolkema had no way of knowing whom Durden might
call and what he might say. On this record, it cannot be said that the objectively manifested
purpose of the offer of a cell phone was to elicit an incriminating response and that it was done
with knowledge that it would likely result in such a response. See White, 493 Mich. at 196.
Offering a phone to a suspect is not by itself the functional equivalent of an interrogation. See
Bachynski v Stewart, 813 F3d 241, 246 (CA 6, 2015) (stating that the officer’s decision to
provide the suspect with a phone and phone book to call a lawyer was not the functional
equivalent of an interrogation). Because Durden “was not subjected to compelling influences,
psychological ploys, or direct questioning,” his “volunteered statements cannot properly be
considered the result of police interrogation.” Mauro, 481 U.S. at 529.
The trial court did not err when it determined that Durden’s statements on the phone were
not the result of an improper custodial interrogation made after he asserted his right to remain
silent.
B. AMENDED JUDGMENT OF SENTENCE
Durden also argues that the trial court erred when it amended his judgment of sentence on
its own initiative. This Court reviews de novo whether the trial court properly interpreted and
applied the court rules. See People v Comer, 500 Mich. 278, 287; 901 NW2d 553 (2017).
In Comer, our Supreme Court examined the court rules that permit a trial court to correct
a judgment of sentence. The Court first examined MCR 6.435, which generally governs the
correction of mistakes in judgments. The Court noted that a trial court may correct a clerical
mistake at any time and on its own initiative under MCR 6.435(A). By contrast, a trial court
could only correct a substantive mistake before entry of judgment and after giving the parties an
opportunity to be heard. Comer, 500 Mich. at 293-294; see MCR 6.435(B). The Court then
examined the court rule governing a trial court’s authority to modify a sentence.
MCR 6.429(A) then provided: “A motion to correct an invalid sentence may be filed by
either party. The court may correct an invalid sentence, but the court may not modify a valid
sentence after it has been imposed except as provided by law.”2 The Court in Comer determined
that the plain terms of MCR 6.429(A), when read in light of the remainder of that rule and MCR
6.435(B), established that a trial court lacked the authority to sua sponte correct an invalid
sentence. Rather, trial courts could only correct an invalid sentence on the motion of one of the
parties. Thus, even where the trial court imposed a sentence contrary to law, it could not correct
the sentence on its own initiative under MCR 6.429, and could only correct the sentence on its
2
Effective September 1, 2018, MCR 6.429(A) provides: “The court may correct an invalid
sentence, on its own initiative after giving the parties an opportunity to be heard, or on motion by
either party.”
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own initiative under MCR 6.435(A) if the mistake was clerical, not substantive. Comer, 500
Mich. at 295-298.
At Durden’s sentencing, the trial court stated that it was the sentence of the court that
Durden “serve a term of two years consecutive to and preceding the offense of armed robbery,”
which sentences must be “consecutive to any term” that Durden was presently serving. The
court also indicated that Durden was not entitled to any credit for the 390 days that he already
served for either offense because he was on parole at the time. Despite providing for consecutive
sentencing for both the sentence of felony-firearm and the parole offenses, the trial court signed a
judgment of sentence that provided only that Durden’s sentences were to be served consecutive
to “any MDOC sentence currently being served.”
In December 2017, the Department of Corrections notified the trial court that Durden’s
judgment of sentence did not provide for consecutive sentencing of his felony-firearm sentence
even though MCL 750.227b required consecutive sentencing. The trial court on its own
initiative amended the judgment of sentence to provide that Durden had to serve his sentence for
felony-firearm consecutive to and preceding his sentence for armed robbery and that both were
to be served consecutively to the sentence he was currently serving.
On appeal, Durden argues that the trial court lacked the authority to correct his sentence
on its own initiative, even though the sentence was invalid, because the addition of a statutorily
mandated term is a substantive correction. In each of the cases cited by Durden, our Supreme
Court cited Comer and held that the trial court lacked the authority to add a statutorily mandated
term on its own initiative because the correction was substantive and the trial court could only
make a substantive correction before entry of judgment. The Court, however, did not discuss the
particular facts or analyze the distinction between a clerical mistake and a substantive mistake.
See People v Luke, 501 Mich. 895 (2017); People v Warrick, 501 Mich. 920 (2017); People v
Williams, 501 Mich. 876 (2017).
The Supreme Court similarly did not discuss the distinction between a clerical mistake
that a trial court can correct on its own initiative at any time and a substantive mistake that can
only be corrected before entry of judgment. Nevertheless, in rejecting the contention that the
correction at issue in Comer involved a clerical mistake, the Court suggested that a clerical
mistake includes the omission of a statutorily required term, if the trial court expressed its intent
to comply with the statutory mandate at sentencing: “But the parties do not contend that the
failure to sentence defendant to lifetime electronic monitoring was a clerical mistake. Nor could
they—the original sentencing judge said nothing about lifetime electronic monitoring at the
initial sentencing.” Comer, 500 Mich. at 293. Thus, whether MCR 6.435(A) applies does not
depend solely on whether the missing term was required by statute. Rather, if the trial court
clearly stated that the judgment of sentence was to include a specific term, but that term was not
included in the judgment of sentence because of a clerical omission, the trial court may correct
that error on its own initiative at any time under MCR 6.435(A).
In this case, the trial court clearly stated at sentencing that Durden was to serve his
sentence for his felony-firearm conviction consecutive to and preceding his sentence for armed
robbery, and that he was to serve both of those sentences consecutive to whatever term he was
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serving for his parole violation. As such, the record shows that the omission of the consecutive
sentencing term for the felony-firearm sentence from the judgment of sentence was a clerical
error that the trial court could properly correct on its own initiative at any time under MCR
6.435(A). See Comer, 500 Mich. at 293.
The trial court did not err when it amended Durden’s judgment of sentence to correct the
clerical error involving consecutive sentencing.
IV. CONCLUSION
Ezell and Durden have not identified any errors that warrant relief. Consequently, we
affirm in both dockets.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron
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