People of Michigan v. David Van Harrison ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 25, 2020
Plaintiff-Appellee,
v No. 345343
Macomb Circuit Court
DAVID VAN HARRISON, LC No. 2017-004255-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 345345
Macomb Circuit Court
DAVID VAN HARRISON, LC No. 2017-004039-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and SAWYER and METER, JJ.
PER CURIAM.
In this case, consolidated below and on appeal, People v Harrison, unpublished order of
the Court of Appeals, entered September 13, 2018 (Docket Nos. 345343; 345345), defendant was
convicted of unarmed robbery, MCL 750.530, and armed robbery, MCL 750.529. He was
sentenced in case number 2017-004039-FH as a fourth habitual offender, MCL 769.12, to 9.5 to
40 years for the unarmed robbery, and in case number 2017-004255-FC to 25 to 40 years for the
armed robbery. Defendant appeals as of right. We affirm.
Defendant used a box cutter to rob Stephanie Thayer after approaching her in an urgent
care facility parking lot. She was standing outside her car, smoking a cigarette and texting on her
cell phone. Approximately two hours later, he approached Hallie Wilcoxson while she was sitting
in a parked car in a store parking lot. He attempted to rob her. Four days later, defendant robbed
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Kimberly Smith by grabbing money from her at an outside automated teller machine (ATM); she
had just gotten out of her car in the bank parking lot.
I. PERMISSIVE JOINDER
Defendant first argues that the trial court erred by granting plaintiff’s motion to consolidate
the cases involving the crimes against Thayer and Smith. For purposes of joinder of cases, this
Court reviews whether the charges were related de novo as a question of law. People v Gaines,
306 Mich App 289, 304; 856 NW2d 222 (2014). This Court reviews a trial court’s ultimate
decision on a motion for joinder for an abuse of discretion. Id., citing People v Breidenbach, 489
Mich 1, 14; 798 NW2d 738 (2011). The trial court does not abuse its discretion when it chooses
an outcome within the range of reasonable and principled outcomes. People v Babcock, 469 Mich
247, 269; 666 NW2d 231 (2003).
The court rules authorize a trial court to “join offenses charged in two or more informations
or indictments against a single defendant” where it is “appropriate to promote fairness to the parties
and a fair determination of the defendant’s guilt or innocence of each offense.” MCR 6.120(B).
Joinder is permitted where “the offenses are related.” MCR 6.120(B)(1). To evaluate whether
joinder is permissible, “a trial court must first find the relevant facts and then must decide whether
those facts constitute ‘related’ offenses for which joinder is appropriate.” People v Williams, 483
Mich 226, 231; 769 NW2d 605 (2009). The rule defines “related offenses” as those that are based
on either “the same conduct or transaction,” “a series of connected acts,” or “a series of acts
constituting parts of a single scheme or plan.” MCR 6.120(B)(1)(a-c). “Other relevant factors”
that a trial court may consider to determine whether joinder is appropriate are “the timeliness of
the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming
from either the number of charges or the complexity or nature of the evidence, the potential for
harassment, the convenience of witnesses, and the parties’ readiness for trial.” MCR 6.120(B)(2).
In this case, the trial court concluded that defendant’s charged crimes were related because
they were part of a common scheme or plan. Crimes are “related” under MCR 6.120(B)(1)(c)
where evidence demonstrates that a “defendant engaged in ongoing acts constituting parts of his
overall scheme or plan.” People v Gaines, 306 Mich App 289, 305; 856 NW2d 222 (2014), citing
Williams, 483 Mich at 235.
Defendant robbed Thayer on October 4, 2017 at around 7:30 p.m. in the middle of a parking
lot where she had stopped and gotten out of the vehicle. Thayer identified defendant as the man
who suddenly approached her, asked her to stay quiet, and demanded money. After Thayer
informed defendant that she did not carry cash, he pushed her against the car with his hands around
her throat and threatened to slice her throat if she did not provide money. Thayer offered her purse,
which was in the car, and defendant took the purse from the car and fled. Thayer’s eight-year-old
daughter was in the vehicle and saw that defendant was wearing rubber gloves and had a blue
rectangular pocket knife with a retracted blade.
On October 8, 2017 around 9:00 a.m., Smith was robbed by a man she identified as
defendant immediately after withdrawing cash from the ATM. Smith recalled that she parked in
the empty parking lot and walked to the ATM, and that after she began her transaction she felt
something hard behind her. Smith said that the money and wallet were in her hand when she was
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trapped by arms around her waist and hands grasping her hands. She said that the robber grabbed
her wallet and cash, and fled.
The robberies were in the same general area as evidenced by calls that defendant’s phone
made on the dates of the robberies. They used the same phone tower which was 1.86 miles from
the site of Thayer’s robbery and 2.74 miles from Smith’s robbery. Notably, bank records revealed
that defendant had negative balances during the time of the robberies, and a “state employee”
testified that defendant had relapsed into drug use, which defendant confirmed during separate
interviews with the detectives investigating each case.
The trial court reasoned that there was “a common thread in that all these robberies were
singling out a very specific type of target, “that being a woman that appeared to be alone or had
an eight-year-old son or child in the car and were close in time.” It also concluded that the offenses
were similar.
Defendant argues that the robberies were “not connected” and were “totally dissimilar”
because the locations were different, only one involved a weapon, only one involved gloves, and
one was in a lot and the other was at the ATM. Defendant also noted that one crime was not
committed in order to aid the commission of the other crime. However, despite those differences,
the evidence indicated that defendant’s crimes were related because they consisted of “ongoing
acts constituting parts of his overall scheme or plan.”
The two robberies were in proximate geographic locations, and occurred within days of
each other during a time in which defendant had a negative bank balance.1 In both instances,
defendant suddenly approached women who had recently left their vehicles while in a parking lot
and were preoccupied with a task. Defendant used physical force on both woman in order to
overcome any resistance to taking money and the wallet and purse, before fleeing. Defendant’s
acts of surprising women who had just left their vehicles, while they were distracted, during a
discrete period of time in which he lacked money and had been abusing drugs, in proximate
locations, and in order to rob them after using physical force to control or intimidate them,
constituted a series of acts that demonstrated an overall scheme or plan to rob vulnerable women
in a specific way.
Defendant states that joinder was inappropriate because the number of charges confused
the jury, and witnesses were inconvenienced. However, there were only two charges joined, and
there was no evidence of jury confusion. With regard to the witnesses, joinder would have been
more convenient for the detectives, whose investigations overlapped, because they were required
to testify only at one trial instead of two. Similarly, the victims only had to testify once but would
have had to testify in one trial as a complainant and in another to provide evidence of defendant’s
1
MCR 6.120 does not require “the existence of temporal proximity between several offenses,” but
“permits joinder of offenses that were not committed at the same time but nevertheless constitute
‘a series of connected acts or acts constituting part of a single scheme or plan.’ ” Williams, 483
Mich at 241.
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other acts. None of the “other relevant factors” mentioned in MCR 6.120(B)(2) appear to indicate
that joinder was inappropriate in this case. We find no abuse of discretion.
Defendant also argues that evidence of the uncharged act prejudiced him. Evidence of
prior crimes by a defendant must be excluded, except as allowed by MRE 404(b), to avoid the
danger of a conviction based on a defendant’s history of misconduct. People v Starr, 457 Mich
490, 495; 577 NW2d 673 (1998). MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
This list is not exclusive, People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888 (2000).
Wilcoxson identified defendant as the person who attempted to take her money and her
purse on October 4, 2017, while she was waiting in an automobile in a parking lot. Wilcoxson
testified that defendant entered the car, wearing gloves, and asked her for money and then her
purse, but left when she refused to provide it. Defendant’s uncharged attempted robbery of
Wilcoxson is consistent with the plan or scheme of the charged robberies because it was on the
same date as Thayer’s robbery, and defendant approached a vulnerable individual suddenly in a
parking lot while demanding money. The trial court concluded that evidence of the uncharged act
was admissible as other bad acts evidence because it was relevant to an intent to rob and showed
a common scheme.
Generally, to be admissible under MRE 404(b), bad acts evidence (1) must be offered for
a proper purpose, (2) must be relevant, and (3) must not have a probative value substantially
outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d
366 (2004), citing People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993). A proper
purpose is one other than establishing the defendant’s character to show his propensity to commit
the crime. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 725 (2005).
The evidence of the attempted robbery was relevant and used for a proper purpose because
defendant was charged with robbery, and the evidence demonstrated defendant’s common plan
and consistent style of executing the robberies. Defendant argues that the evidence was unfairly
prejudicial. Evidence may be excluded under MRE 403 if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
People v Watkins, 491 Mich 450, 477, 481; 818 NW2d 296 (2012). Unfair prejudice occurs when
there is a tendency for the evidence “to be given undue or preemptive weight” by the jury, or when
it “would be inequitable to allow use” of the evidence. People v Wilson, 252 Mich App 390, 398;
652 NW2d 488 (2002), citing People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995).
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In Watkins, 491 Mich at 487-488, the Court enumerated several considerations that might
lead a trial court to exclude evidence as unfairly prejudicial under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal
proximity of the other acts to the charged crime, (3) the infrequency of the other
acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence
supporting the occurrence of the other acts, and (6) the lack of need for evidence
beyond the complainant’s and the defendant’s testimony.
In this case, the evidence was admitted because of the similarity between the crimes and the
temporal proximity of the acts to each other. Defendant’s argument regarding prejudice is that the
number of incidents implied his guilt. However, “ ‘[u]nfair prejudice’ does not mean
‘damaging.’ ” Lewis v Legrow, 258 Mich App 175, 199; 670 NW2d 675 (2003). Evidence that is
unfairly prejudicial goes beyond the merits of the case to inject issues broader than the defendant’s
guilt or innocence, such as “bias, sympathy, anger, or shock.” People v McGhee, 268 Mich App
600, 614; 709 NW2d 595 (2005).
None of the factors discussed in Watkins indicates that the testimony was unfairly
prejudicial. There is no indication that the evidence “injected issues broader than the defendant’s
guilt or innocence” into consideration. Additionally, there was no indication of a danger of
confusion of the issues, misleading the jury, or creating too much empathy, which could have
required exclusion of the evidence under MRE 403. The evidence was strongly probative as it
demonstrated the likelihood that defendant had a consistent method of robbing vulnerable women
in the given time frame. Although the evidence was prejudicial, it was not unfairly prejudicial.
II. IDENTIFICATION TESTIMONY
Defendant next argues that the pretrial identifications of defendant as the perpetrator by
Thayer, her daughter, Wilcoxson, and Smith were unreliable, that evidence of them should have
been excluded, and that there was not an independent basis for identifications at trial. Defendant
did not object to this evidence. Unpreserved claims are reviewed for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is
warranted only if the plain error resulted in the conviction of an innocent defendant or if “the error
seriously affected the fairness, integrity, or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. Defendant also claims that trial counsel provided ineffective
assistance by failing to object. He also failed to raise this issue in the trial court. Claims of
ineffective assistance of counsel that are unpreserved are reviewed for errors apparent on the
record. People v Unger (On Remand), 278 Mich App 210, 253; 749 NW2d 272 (2008). The
constitutional question of whether an attorney’s ineffective assistance deprived a defendant of his
Sixth Amendment right to counsel, see US Const, Am VI, is reviewed de novo. Id. at 242. We
do not find any issues with the identifications and, coextensively, find no ineffective assistance of
counsel.
“Identity of the defendant is an element of every offense.” People v Yost, 278 Mich App
341, 356; 749 NW2d 753 (2008), citing People v Oliphant, 399 Mich 472, 489; 250 NW2d 443
(1976). A defendant’s due-process rights are violated by the use of an “unduly suggestive”
identification procedure. People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993), citing
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Stovall v Denno, 388 US 293, 302; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). A procedure used in a
lineup or photographic identification is unduly suggestive in violation of due-process guarantees
when it produces “a substantial likelihood of misidentification.” People v McDade, 301 Mich App
343, 357; 836 NW2d 266 (2013); People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).
A photo of defendant from the Secretary of State office was inserted into a computer
program that generated five other photos of men with similar facial features. The black-and-white
photo array was shown to Smith eight days after her robbery. Smith selected defendant from the
lineup. She said that the identification was based on his facial features and that she was 90 percent
sure of her choice.
Nine days after Thayer was robbed, she was shown a photographic lineup that included
photographs of defendant and five other men with similar features. Thayer selected defendant’s
photo and said that she was 90 percent sure that the photo was of the man who robbed her. Thayer
said that she recognized defendant immediately, knew it was defendant because she felt a reaction
throughout her body, and testified that the other photos did not look like defendant.
Thayer’s nine-year-old daughter selected defendant and one other man from this
photographic lineup. She indicated that her choices were based on skin tone; she did not see the
robber’s face. Ultimately, she concluded that the man other than defendant whom she selected
was most likely the robber.
Wilcoxson recalled that a detective came to her home 14 days after her robbery to show
her a photographic lineup. She identified defendant with at least 80-percent confidence.
Defendant argues that the identifications were unreliable because “pretrial identification
was based solely on either skin tone and suspect photo array or uncertainty of the identification.”
Factors that a court should consider to determine the “likelihood of misidentification” include “the
opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the crime and the
confrontation.” Kurylczyk, 443 Mich at 306, quoting Neil v Biggers, 409 US 188, 196; 93 S Ct
375; 34 L Ed 2d 401 (1972).
There was little uncertainty in the witnesses’ identifications of defendant in the
photographic lineups. Although the selection of Thayer’s daughter was based on skin tone, she
concluded that another person in the lineup was more likely to have been the perpetrator. With
regard to Thayer’s identification, the entirety of her testimony indicated that her identification of
defendant was not the result of an improperly suggestive procedure. Thayer explained that her 90-
percent estimate was premised on a “tiny bit” of doubt, so she looked through the photos again to
ensure that she had selected the right photograph. Thayer said that she recognized defendant
immediately, because “I had an adrenaline rush through my entire body. It was like it was, I was
reliving that night over again when I seen the picture.” Thayer definitively indicated that she had
identified defendant based on her experience with him, and stated that, upon seeing defendant’s
photo, “I knew it was him. I felt it in my entire body. It was like an adrenaline rush that just
rushed through and there was like very little doubt that it was not him.” That Smith and Wilcoxson
were less than 100 percent sure of their identifications was not evidence that their identifications
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were uncertain. Wilcoxson testified that she was confident about selecting defendant “[b]ecause
I knew that face, it just didn’t get out of my mind, so I remember him, you know.” She explained
that she said she was at least 80-percent certain because defendant was not wearing glasses and
gloves in the photo as he did during the robbery. She said that her certainty of identification was
based on having stared at defendant’s face throughout her encounter with him so that he would
know that she was not intimidated. Smith explained that her identification was based on
recognizing defendant’s facial features, noting that the photograph could not show defendant’s
lighter complexion because it was in black and white. Smith testified at trial that she was 100
percent certain that she had identified defendant in the lineup, although she may have reported to
the detective at the time that she was only 90 percent certain.
Defendant has not demonstrated that his identification by the witnesses in photographic
lineups were unreliable. Notably, defendant makes no argument, other than the witnesses’
quantification of their certainty, that the identifications were unreliable, or that the procedures used
were suggestive.
Defendant also argues that the in-court identifications of defendant by Smith and Thayer
were not reliable because the witnesses did not have a sufficient independent basis on which to
identify defendant. An in-court identification of the defendant by the same witness whose previous
identification had been obtained with unduly suggestive procedures may be permitted where “an
independent basis for in-court identification can be established that is untainted by the suggestive
pretrial procedure.” Kurylczyk, 443 Mich at 303. However, “there was no impropriety in [the]
pretrial identifications of defendant.” Thus, establishing an independent basis for an in-court
identification was not necessary. People v McElhaney, 215 Mich App 269; 545 NW2d 18 (1996).
“The need to establish an independent basis for an in-court identification only arises where the
pretrial identification is tainted by improper procedure or unduly suggestive comments.” People
v Laidlaw, 169 Mich App 84, 92; 425 NW2d 738 (1988).
Defendant also argues that his trial counsel provided ineffective assistance by failing to
challenge Smith’s or Thayer’s identifications. A defendant’s right to counsel is guaranteed by the
United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This right
“encompasses the right to the effective assistance of counsel.” People v Cline, 276 Mich App 634,
637; 741 NW2d 563 (2007). To demonstrate an ineffective assistance of counsel claim, a
defendant must show (1) “that counsel’s performance was deficient” and (2) “that counsel’s
deficient performance prejudiced the defense.” People v Taylor, 275 Mich App 177, 186; 737
NW2d 790 (2007). A counsel’s performance is deficient if “it fell below an objective standard of
professional reasonableness.” People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
The performance will be deemed to have prejudiced the defense if it is reasonably probable that,
but for counsel’s error, “the result of the proceeding would have been different.” Id. The “effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.”
People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).
Defendant has not demonstrated that an objection to any identification testimony would
have been meritorious because there was no evidence that the identifications were unreliable.
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010), citing
People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
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III. PAROLE OFFICER TESTIMONY
Lastly, defendant argues in a Standard 4 brief that the testimony of Yasheika Davis should
not have been admitted. Defendant did not object to her testimony. Again, unpreserved claims
are reviewed for plain error affecting substantial rights. Carines, 460 Mich at 763.
Davis testified that she knew defendant through her work as a state employee and had
spoken to him about 15 times over the course of more than a year. She explained that she had
contacted the police after she had reviewed a BOL (be on the lookout) bulletin, thinking that the
vehicle and person described matched defendant and his vehicle. Davis additionally testified that
defendant had relapsed into drug use, and that he was “jittery” on October 10, 2017, during their
meeting.
Defendant argues that this testimony was inflammatory and prejudicial because the jury
could have inferred from Davis’s role as a state employee and her knowledge of BOL bulletins
that she was a part of law enforcement and that defendant had a history of crimes. Davis was
apparently defendant’s parole officer. As previously stated, evidence of prior crimes by a
defendant must be excluded, except as allowed by MRE 404(b), to avoid the danger of a conviction
based on a defendant’s history of misconduct. Starr, 457 Mich at 495. However, Davis’s
testimony was offered to explain how the investigation of the crimes progressed, and was relevant
to show how the police identified defendant as a suspect in the robberies. Also, evidence about
the drug use was relevant to defendant’s possible motivation to steal money. Defendant argues
that it nonetheless should have been excluded under MRE 403, asserting that “its probative value
[wa]s substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Watkins, 491 Mich at 477, 481. Unfair prejudice occurs when there is
a tendency for the evidence “to be given undue or preemptive weight by the jury,” or when it
“would be inequitable to allow use of the evidence.” Wilson, 252 Mich App at 398.
Notably, no evidence of a prior crime by defendant was exposed to the jury. Davis’s role
as a state employee who had contact with defendant may have invited speculation among the jurors
about her position, but it did not reveal that defendant had a history of criminal conduct. During
deliberations, the jury asked about the relationship between defendant and Davis, indicating that
it had not definitively inferred Davis’s position, before the trial judge informed the jury that it
could only consider evidence of record and could not speculate about Davis’s position.
There is no indication that the testimony of Davis was unfairly prejudicial. There is no
indication that the evidence “injected issues broader than the defendant’s guilt or innocence” into
the case. Additionally, there was no indication of a danger of confusion of the issues, misleading
the jury, or creating too much empathy, which could have required exclusion of the evidence under
MRE 403. The evidence had some probative value to explain the direction of the investigation,
and was not unfairly prejudicial.
Defendant argues that his trial counsel provided ineffective assistance by failing to object
to Davis’s testimony. Davis’ testimony was discussed with reference to the overlap between
defendant’s cases as it pertained to the joinder issue, with defendant’s trial counsel arguing that
there would not have to be overlap with respect to Davis because she was a nonessential witness.
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In the course of this discussion, the prosecutor acknowledged that defendant’s parole should not
be mentioned. Defendant has not identified grounds to exclude Davis’ testimony. There is no
basis to conclude that an objection to her testimony would have been meritorious. And again,
“[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” Ericksen, 288 Mich App at 201.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Patrick M. Meter
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