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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

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

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and B ECKERING and S HAPIRO , JJ.

P ER C URIAM

.
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 wa s riding his bike to the grocery store. According to the victim, he was cut off from th e parking lot entrance by a white sport utility vehicle, and one of the passengers, who he identi fied 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 s tation to view a live lineup of possible suspects. Upon seeing the lineup, he immediately stat ed that defendant was the man
who robbed him.

Before trial, defendant moved to suppress the victim’s lineup identification and any incourt identification, arguing th at the officer conducting the l ineup informed the victim that he had picked the right person, which the officer denied. Defenda nt argued that this comment rendered the lineup unduly suggest ive, which would also taint a ny in-court identification. The
trial court denied defendant’s m otion, citing lack of a legal b asis. 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 whe n 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 m onths to 15 years’ imprisonment

.-2- live lineup. We disagree. 2 “In order to sustain a due process challenge, a defendant mus t show that the pretrial identification procedure was so suggestive in light of the totality of the
circumstances that it led to a substantial like lihood of miside ntification.” People v Kurylczyk

, 443 Mich 289, 302; 505 NW2d 528 (1993). When considering wheth er a lineup was unduly suggestive, the trial court shoul d consider not only whether th e lineup was suggestive, in that defendant stood out from the others, but also whether the likel ihood of misidentific ation 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 tim e 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 certain ty at the iden tification. Id . at 306.

In People v King , 384 Mich 310, 312-313; 181 NW 2d 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 suspe cted. Defendant presents essentially the same argument in this case. Because his positi on 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 pers on who robbed him. Kurylczyk

, 443 Mich at 306. 3 Even though the victim’s memory was not clear as to some of t he details of the robbery, the victim was pos itive, both duri ng the lineup an d at trial, that it was defendant who robbed him. The victim immediately identified defendant upon v iewing the lineup, which took place the day after the robbery occurred. Even though the vict im testified that he was looking at the gun during the robbery, he re called that defendant was sitt ing 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 veh icle (a white, four-door sport utility vehicle). The evidence supports that the victim made an immedi ate positive identification of defendant before the officer allegedly commented that he had pi cked the right person. Based on the totality of the circumstan ces, there was no likelihood of m isidentification during the lineup or during trial. Thus, the lineup id entification procedure was no t unduly suggestive, and the trial court did not err in denying defenda nt’s motion to suppress the lineup and in-court identification.

Additionally, defendant argues th at he was deprived of his con stitutional right to effective
assistance of counsel when his trial counsel did not seek a mis trial on the basis of the lineup and

2 “The trial court’s decision to admit identification evidence w ill 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 fi nder, was in the best position to judge the victim’s credibility. People v McCray , 245 Mich App 631, 640; 630 NW2d 633 (2001).-3- in-court identification. We disagree. There are “two componen ts” to establishing an ineffectiveassistance-of-counsel claim, defe ndant must first show, “that c ounsel’s performance was deficient,” and second, that “th e deficient performance prejudi ced 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 otherwis e. People v Johnson , 315 Mich App 163, 174; 889 NW2d 513 (2016). “Trial counsel is not requi red 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 pr e-trial identification procedure was unduly suggestive, his claim that his trial couns el was ineffective for failing to request a mistrial on the basis of that identification is equal ly without merit. Additionally, while his trial counsel did not move for a mistrial, he did file a mo tion 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 t o the identification. The fact that defendant’s position was without merit was not the fault of tri al 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 assist ance of counsel presents a mixed question of fact and constitutional law, and a trial court’s fi ndings of fact are reviewed for clear error, while questions of constitutional law are reviewed de no vo.” People v Johnson , 315 Mich App 163, 174; 889 NW2d 513 (2016) (citations omitted).