-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 23, 2017 

v No. 328173 

Macomb Circuit Court 

CLINTON RAYSHAWN GRAYSON, LC No. 2014-002444-FC 

 Defendant-Appellant. 

Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury convictions of first-degree felony murder, MCL 

750.316(1)(b), armed robbery, MCL 750.529, possession of a firearm during the commission of 

a felony (felony-firearm), MCL 750.227b, and conspiracy to commit armed robbery, MCL 

750.157a; MCL 750.529. The trial court sentenced defendant to life imprisonment without 

parole for the first-degree murder conviction, to be served consecutive to a two-year term of 

imprisonment for the felony-firearm conviction, and concurrent prison terms of 23 years 9 

months to 50 years each for the armed robbery and conspiracy to commit armed robbery 

convictions. We affirm. 

 Defendant’s convictions arise from a robbery and shooting at the Moon Lite Party Store 

in Clinton Township on March 28, 2014. The owner of the store, Basim Sulaka, was shot and 

killed during the robbery. Defendant and three other codefendants, Kenneth Hill, Darius DiazGaskin, and Jomar Robinson, were charged in the offense. Defendant’s trial was severed from 

the trials of the other three codefendants by stipulation.1

 

I. IDENTIFICATION TESTIMONY 

 While this is not the first issue raised by defendant, we approach the officer’s 

identification issue first because it is based upon this issue that we decline to reverse later in this 

 

1

 After defendant was convicted, codefendants Hill, Robinson, and Diaz-Gaskin were tried 

jointly. All three codefendants were convicted of first-degree felony murder, armed robbery, 

conspiracy to commit armed robbery, and felony-firearm. Their appeals are pending in Docket 

Nos. 329166 (Hill’s appeal), 329209 (Robinson’s appeal), and 329223 (Diaz-Gaskin’s appeal). 
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opinion for the trial court’s error in denying defendant’s motion to suppress. Defendant contends 

that he was denied a fair trial because the police officers invaded the province of the jury by 

opining that one of the men in the store’s surveillance videos was defendant. We disagree. 

Defendant failed to preserve his challenge to the officers’ testimony by objecting to the 

testimony at trial. People v Osby, 291 Mich App 412, 414; 804 NW2d 903 (2011). “In order to 

avoid forfeiting an unpreserved error, a defendant has the burden of establishing that the ‘(1) 

error occurred, (2) the error was plain, i.e. clear or obvious, and (3) the plain error affected 

substantial rights.’ ” Id. (citation omitted). 

 Inspector Joseph Burns and Detective Quinn both testified that they were able to identify 

suspect one in the surveillance video as defendant.2 Although Burns testified that he had 

experience identifying individuals as a police officer, and Quinn testified that he had training in 

facial recognition, neither was qualified to testify as an expert in that field. Thus, their testimony 

constituted lay opinion testimony under MRE 701. People v Fomby, 300 Mich App 46, 50; 831 

NW2d 887 (2013). 

 MRE 701 provides: 

 If the witness is not testifying as an expert, the witness’ testimony in the 

form of opinions or inferences is limited to those opinions or inferences which are 

(a) rationally based on the perception of the witness and (b) helpful to a clear 

understanding of the witness’ testimony or the determination of a fact in issue. 

“[A] witness cannot express an opinion on the defendant’s guilt or innocence of the charged 

offense.” Fomby, 300 Mich App at 53 (citation and quotation marks omitted). “[T]he issue of 

whether the defendant in the courtroom was the person pictured in a surveillance photo [is] a 

determination properly left to the jury.” Id. at 52 (citations and quotation marks omitted). 

“[W]here a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error 

to permit a witness to give his own opinion or interpretation of the facts because it invades the 

province of the jury.” People v Perkins, 314 Mich App 140, 161-162; 885 NW2d 900 (2016) 

(citation and quotation marks omitted) vacated in part by People v Perkins, unpublished order of 

the Court of Appeals, entered February 12, 2016 (Docket Nos. 323454, 323876, 325741), and 

superseded in part on other grounds by People v Hyatt, ___ Mich App ___; ___ NW2d ___ 

(2016) (Docket No. 325741). 

 In Fomby, 300 Mich App at 48, an officer was permitted to testify regarding the identity 

of individuals in still photos and surveillance footage. This Court concluded that the officer’s 

testimony helped the jury to correctly and efficiently determine whether the individuals seen in 

the footage were the same individuals involved in the murder later depicted in the video because 

the video was long, likely depicted other individuals, and it could be inferred that the officer 

viewed the video and photographs several times. Id. at 52. The Court noted that the “common 

thread” of authority allowed the admission of such testimony where there was “reason to believe 

that the witness is more likely to identify correctly the person than is the jury.” Id. (citation and 

 

2

 It appears that the officers identified defendant as suspect one in both the video from the party 

store and the video from the apartment complex. 
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quotation marks omitted). This Court concluded that the officer did not invade the province of 

the jury because he only linked individuals in the video as being the same individuals depicted in 

the still photographs. Id. at 53. 

 In Perkins, 314 Mich App at 160, the witness identified the defendant in video and still 

frame photographs from the stairwell of the apartment building where a murder occurred. This 

Court concluded that the witness should not have been allowed to identify the defendant as the 

individual where “[t]here was nothing about the images (i.e., poor quality of the images, 

defendant wearing a disguise) that necessitated [his] opinion.” Id. at 162. This Court concluded 

however, that even if the trial court abused its discretion, the error was not outcome 

determinative because the evidence was overwhelming and the defendant’s identity was not in 

dispute. Id. 

 In United States v LaPierre, 998 F2d 1460, 1465 (CA 9, 1993), amended August 19, 

1993, the court explained that such lay opinion testimony has been limited to two types. “The 

first type is those in which the witness has had substantial and sustained contact with the person 

in the photograph.” Id. “The second type is those in which the defendant’s appearance in the 

photograph is different from his appearance before the jury and the witness is familiar with the 

defendant as he appears in the photograph.” Id. The court stated: “We can perhaps imagine a 

hypothetical scenario in which a witness who knew a defendant only through photographs 

nonetheless had become sufficiently familiar with his appearance to give lay opinion testimony 

of this sort.” Id. 

 This case is similar to Perkins because both officers identified defendant as suspect one 

in the surveillance videos. Unlike in Fomby, they did not merely link individuals in a video and 

photographs as being the same individuals. The officers’ testimony was based on their 

perceptions of the video. See Fomby, 300 Mich App at 50-51. The question is whether the 

testimony was helpful to the determination of a fact in issue and whether it invaded the province 

of the jury. See id. at 51-52. Given that defendant was wearing a mask in the video from the 

party store, the officers’ testimony was helpful to the jury in identifying him. See Perkins, 314 

Mich App at 162. Similarly, given that defendant’s face was not clearly visible in the video from 

the apartment complex, the officers’ testimony was helpful in identifying him.3

 See id. The 

officers had become familiar with defendant through photographs, and they recognized 

characteristics of defendant in the videos, such as his hair, the shape of his nose, the shape of his 

eyes, his skin tone, and his build. Burns testified that he had viewed the video of the party store 

40 or 50 times. Therefore, the officers were in a better position than the jury to identify 

defendant in the videos. Accordingly, the admission of the officers’ testimony did not constitute 

plain error. 

II. MOTION TO SUPPRESS 

 

3

 The quality of the video from the apartment complex was apparently poor. At one point, the 

prosecutor asked Lant, “Now that’s a dark camera, can you identify anyone in that photo?” The 

prosecutor also asked, “Sir, the footage of the exit and entrance of Mr. Hill’s apartment is a little 

grainy and dark, but you said you recognized the one individual with the bigger, the more hair? 

Lant also testified that he could not see the face of “the guy with the hair.” 
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 Defendant also argues that the trial court erred by denying his motion to suppress his 

statement to the police. Defendant contends that the police improperly questioned him after he 

invoked his right to an attorney and his right to remain silent. The trial court found that while the 

defendant invoked his rights to silence and to an attorney he voluntarily waived those rights 

when he reinitiated questioning before any further interrogation or express questioning by the 

police. Although we conclude that the trial court erred by denying defendant’s motion to 

suppress, we also conclude that the error was harmless. 

 The relevant facts in this case are undisputed. Therefore, the “trial court’s decision 

regarding whether [a] defendant was subjected to ‘interrogation’ or, more specifically, ‘express 

questioning or its functional equivalent,’ ” is reviewed de novo. People v White, 493 Mich 187, 

193; 828 NW2d 329 (2013). In People v Henry (After Remand), 305 Mich App 127, 145; 854 

NW2d 114 (2014), this Court explained: 

 A criminal defendant enjoys safeguards against involuntary selfincrimination during custodial interrogations. Included within these safeguards is 

the right to remain silent during custodial interrogation and the right to cut off 

police questioning. A defendant may assert his or her right to remain silent at any 

time, however, the assertion must be unequivocal. When a defendant invokes his 

or her right to remain silent, the police must “scrupulously honor” the defendant’s 

request. The police fail to “scrupulously honor” a defendant’s invocation of the 

Fifth Amendment right “by refusing to discontinue the interrogation upon request 

or by persisting in repeated efforts to wear down his resistance and make him 

change his mind.” 

If the individual indicates in any manner, at any time prior to or 

during questioning, that he wishes to remain silent, the 

interrogation must cease. At this point he has shown that he 

intends to exercise his Fifth Amendment privilege; any statement 

taken after the person invokes his privilege cannot be other than 

the product of compulsion, subtle or otherwise. [Citations 

omitted.] 

“If the police continue to ‘interrogate’ the defendant after he has invoked his right to remain 

silent, and the defendant confesses as a result of that ‘interrogation,’ the confession is 

inadmissible.” White, 493 Mich at 194 (citation omitted). 

 In White, 493 Mich at 195-196, our Supreme Court stated: 

 In [Rhode Island v Innis, 446 US 291, 300-302; 100 S Ct 1682; 64 L Ed 

2d 297 (1966),] the United States Supreme Court explained the circumstances 

under which a defendant is deemed to have been subjected to “interrogation”: 
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 [T]he Miranda[4] safeguards come into play whenever a 

person in custody is subjected to either express questioning or 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 (other than those 

normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating response from 

the suspect. The latter portion of this definition focuses primarily 

upon the perceptions of the suspect, rather than the intent of the 

police. This focus reflects the fact that the Miranda safeguards 

were designed to vest a suspect in custody with an added measure 

of protection against coercive police practices, without regard to 

objective proof of the underlying intent of the police. A practice 

that the police should know is reasonably likely to evoke an 

incriminating response from a suspect thus amounts to 

interrogation. But, since the police surely cannot be held 

accountable for the unforeseeable results of their words or actions, 

the definition of interrogation can extend only to words or actions 

on the part of police officers that they should have known were 

reasonably likely to elicit an incriminating response. [Emphasis in 

the original.] 

The Court further explained that the underlying intent of the police is not relevant: 

 [I]t may well have a bearing on whether the police should 

have known that their words or actions were reasonably likely to 

evoke an incriminating response. In particular, where a police 

practice is designed to elicit an incriminating response from the 

accused, it is unlikely that the practice will not also be one which 

the police should have known was reasonably likely to have that

effect. [Id. at 301 n 7.] 

But, as one academic commentator explained, the focus must be on the objective 

manifestation of the officer’s words rather than on the officer’s subjective 

intentions in speaking the words: 

[T]he best reading of the Innis test is that it turns upon the 

objective purpose manifested by the police. Thus, an officer 

“should know” that his speech or conduct will be “reasonably 

likely to elicit an incriminating response” when he should realize 

that the speech or conduct will probably be viewed by the suspect 

as designed to achieve this purpose. To ensure that the inquiry is 

entirely objective, the proposed test could be framed as follows: if 

an objective observer (with the same knowledge of the suspect as 

 

4 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 
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the police officer) would, on the sole basis of hearing the officer’s 

remarks, infer that the remarks were designed to elicit an 

incriminating response, then the remarks should constitute 

“interrogation.” [2 LaFave, Criminal Procedure (3d ed.), § 6.7(a), 

p. 757, quoting White, Interrogation Without Questions: Rhode 

Island v Innis and United States v Henry, 78 Mich L R 1209, 1231-

1232 (1980) (emphasis in the original).] 

 In this case, it is undisputed that defendant unequivocally asserted his right to remain 

silent when he stated, “I don’t want to talk no more.”5

 The question is whether the police 

“scrupulously honor[ed]” defendant’s request by ceasing the interrogation. Henry, 305 Mich 

App at 145. 

 In White, 493 Mich at 191, after the defendant said he did not want to speak, the officer 

stated, “I hope that the gun is in a place where nobody can get a hold of it and nobody else can 

get hurt by it.” The Court concluded that this statement did not constitute interrogation or the 

functional equivalent of express questioning. Id. at 198-209. When the Court concluded that the 

defendant was not the subject of express questioning, it also made several findings: (1) the 

officers comment regarding the gun was not a question because it did not ask for an answer or 

invite a response; (2) the addition of the words “okay” and “all right” at the end of the comment 

did not transform it into a question; (3) the officer told the defendant that he was not asking him 

questions; (4) the defendant’s “response” to the comment concerning the location of the gun did 

not have anything to do with the location of the gun; (5) the officer seemed surprised by the 

defendant’s incriminating statement and immediately tried to veer the conversation away from 

any further incriminating statements; and (6) to the extent the officer’s statement could be 

viewed as a question, it did not seem intended to generate an incriminating response. Id. at 198-

202. In concluding that the defendant was also not subjected to the functional equivalent of 

express questioning, the Court determined that: (1) there was nothing to suggest that the officer 

was aware that the defendant was peculiarly susceptible to an appeal to his conscience; (2) there 

was nothing to suggest that the officer was aware that the defendant was unusually disoriented; 

(3) the officer made only a single remark about the gun and did not carry on a “lengthy 

harangue”; and (4) the comment was not particularly evocative. Id. at 202-204. The Court also 

concluded that the fact that the officer was talking directly to the defendant was not 

determinative. Id. at 205-207. 

 

5

 Although the prosecutor disputes whether defendant also asserted his right to counsel, this issue 

is not determinative since defendant clearly invoked his right to remain silent. A suspect who 

invokes his right to counsel may not be subjected to further interrogation until counsel is made 

available, unless the suspect initiates further communication with the police. People v Crusoe, 

433 Mich 666, 684; 449 NW2d 641 (1989). Thus, if defendant invoked his right to counsel, the 

question would similarly be whether he initiated further communication with the police (i.e., 

whether any further communication was not the result of continued interrogation or express 

questioning by the police). 
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 It is instructive to review the exchange in this case that followed defendant’s express 

request that he only be interrogated with a lawyer present: 

DETECTIVE [DAN] QUINN. You don’t want to talk any more? You just 

going to go with their story and not -- 

You don’t want to give your explanation for what. 

DEFENDANT GRAYSON. I don’t know what the three is, what they are 

saying. 

DETECTIVE [BRYAN] GILBERT. That is the truth, but that is fine. 

DEFENDANT GRAYSON. I understand. 

DETECTIVE GILBERT. We just have a rapport, give everybody the 

opportunity. This is your chance. 

DETECTIVE QUINN. I’m not, I certainly don’t want to come across and I 

am not trying to be mean to you or being a jerk or anything. 

DEFENDANT GRAYSON. I understand. 

DETECTIVE QUINN. This is just, like, we said, your opportunity to tell 

us your portion because everybody is going to be charged with felony murder. 

Okay. Including yourself. Okay. 

But the way I look at it is that within those charges the Judge is going to 

look at things, and don’t misinterpret this as any promises, you know, any 

projection of what happened. 

But the way things are going to be looked at is within the felony murder, 

right, each person had a different level of involvement, okay. 

You have got Ken who had some involvement. Jomar had some 

involvement. You know, yourself had some involvement and you got Darius, 

right? 

I don’t want you to miss the opportunity to tell us what you did, only what 

you did, and to get everything lumped in together. You know what I mean? 

So when it comes down for sentencing, right, they’re going to look at it as 

not only did Darius say this, he also even wrote a letter to apologize to the family. 

Okay. 

It’s not a matter of what happened, it’s why it happened. So this is your 

chance to explain a little bit about how it all took place. 
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DEFENDANT GRAYSON. Uhm, I’m confused you just told me I had the 

other gun. 

 At this point, Detective Gilbert said, “I am sorry,” and defendant repeated his comment, 

stating, “You told me I had the other gun. I don’t know who said I had the other gun.” Detective 

Quinn then stated, “We got the tapes of you with the other gun.” The detectives then presented 

defendant with inculpatory evidence and expressly questioned defendant about what happened, 

which resulted in defendant making incriminating statements admitting his involvement in the 

offense. 

 We agree that, similar to White, defendant was not subjected to express questioning. 

Although the detectives used the words “okay” and “right” at the end of their statements, this did 

not transform them into questions. See White, 493 Mich at 198-199. Nonetheless, we conclude 

that defendant was subjected to the functional equivalent of express questioning. Unlike in 

White, the detectives did not tell defendant that they were not asking him questions. Their 

statements, in which they repeatedly told defendant that it was his opportunity to talk and tell 

what he did, and that it could affect his sentencing, were the functional equivalent of express 

questioning intended to elicit an incriminating response. Plaintiff argues that defendant’s 

response, regarding the gun, was not related to the detectives’ statements. Although the 

detectives did not mention the gun after defendant asserted his right to remain silent, their 

comments attempted to get defendant to talk about his involvement in the crime and tell what he 

did. Thus, defendant’s reference to his possession of the gun was not completely unrelated to 

their statements. Furthermore, unlike in White, the detectives were not surprised when defendant 

made the statement, and they continued to invite further incriminating responses. After 

defendant’s statement about the gun, Detective Gilbert said, “I am sorry,” and defendant repeated 

his comment, stating, “You told me I had the other gun. I don’t know who said I had the other 

gun.” Detective Quinn then stated, “We got the tapes of you with the other gun.” The officers 

did not try to veer the conversation away from further incriminating statements. White, 493 

Mich at 200-201. 

 Although there was nothing to suggest that the detectives knew that defendant had any 

particular susceptibility or was disoriented, that is not dispositive in this case. Unlike in White, 

the detectives did not make a single statement. Rather, their comments were more akin to a 

“lengthy harangue,” White, 493 Mich at 204 (citation and quotation marks omitted), in which 

they repeatedly told defendant that this was his opportunity to talk. The detectives’ comments, 

in particular those related to sentencing, were also particularly evocative. As defendant argues, 

Detective Quinn lied about the fact that defendant’s statements might help at sentencing, and 

deception is designed to elicit an incriminating response.6

 Thus, the detectives should have 

known that their comments were reasonably likely to have that effect. 

 

6

 Specifically, the detectives suggested that defendant could be treated differently at sentencing 

based on his level of involvement and the statements he made. However, defendant was facing a 

charge of first-degree felony murder, which is subject to a mandatory penalty of life 

imprisonment without parole. MCL 750.316(1)(b). 
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 In White, 493 Mich at 207, the Court explained that “courts have generally rejected 

claims . . . that disclosure of the results of a lineup or other inculpatory evidence possessed by 

the police, without more, constitutes ‘interrogation’ under Innis.” (Citation omitted). In this 

case, however, the detectives did not merely disclose inculpatory evidence to defendant. Rather, 

they disclosed such evidence while repeatedly telling defendant that it was his chance to talk, and 

they provided him with misleading information about the benefits of talking. Immediately after 

the detectives talked about sentencing, defendant began talking again. 

 In sum, we conclude that the detectives’ statements constituted interrogation. As the 

Court in White stated, “the dispositive question is whether the suspect’s incriminating response 

was the product of words or actions on the part of the police that they should have known were 

reasonably likely to elicit an incriminating response.” White, 493 Mich at 208 (citation and 

quotation marks omitted). The detectives should have known that, by repeatedly telling 

defendant that this was his opportunity to talk and tell what he did, defendant would make an 

incriminating statement.7

 Having concluded that the trial court erred by admitting defendant’s statement, the 

question is whether, given the untainted evidence in this case, the admission of the statement was 

harmless beyond a reasonable doubt. Henry, 305 Mich App at 148. In People v Dendel, 289 

Mich App 445, 475-476; 797 NW2d 645 (2010), this Court observed: 

A constitutional error is harmless if [it is] clear beyond a reasonable doubt that a 

rational jury would have found the defendant guilty absent the error. In other 

words, if it is beyond a reasonable doubt that the jury would have convicted 

defendant on the basis of untainted evidence, defendant is not entitled to a new 

trial. [Citations and quotation marks omitted.] 

The prosecution is required to prove “beyond a reasonable doubt that there is no reasonable 

possibility that the evidence complained of might have contributed to the conviction.” People v 

Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994) (citation omitted). In 

determining whether an error was harmless, this Court often considers whether the evidence 

establishing the defendant’s guilt was overwhelming. See People v McDonald, 303 Mich App 

424, 440; 844 NW2d 168 (2013). 

 In this case, there was sufficient evidence to find defendant guilty beyond a reasonable 

doubt, even without his statement to police. A witness who lives a short distance from the party 

store testified that on the night of the incident, he was smoking a cigarette outside his home 

around 11:05 p.m. when he saw a boxy, tan-colored vehicle with tinted windows and a loud 

exhaust or engine stop on his street, Elmira. The vehicle pulled over in front of a nursing 

building and three people, all dressed in dark clothing got out of the vehicle and began walking. 

 

7

 Although defendant’s statement about the gun was not itself incriminating, that statement led to 

the officers presenting defendant with inculpatory evidence, the officers expressly questioning 

defendant about what happened, and defendant making incriminating statements. The officers 

essentially “[wore] down his resistance and [made] him change his mind.” Henry, 305 Mich 

App at 145 (citation and quotation marks omitted). 
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When the witness left for work a short time later, he saw a lot of police cars at the party store and 

thought that their appearance may be related to the single car and the three people he had seen on 

his street just a short time earlier, so he advised the police what he had seen. Another witness 

testified that he was driving by the party store on the night of the incident when he saw three 

individuals dressed in dark clothing and wearing dark ski masks, one of whom was carrying a 

red duffle bag, running out of the party store. A police canine unit tracked a scent from the party 

store to Elmira Street and officers testified that they found money on the ground in front of the 

nursing building on Elmira after the robbery. 

 Video surveillance taken at the party store recorded the robbery and shooting, with time 

stamps, showing that the robbery began at approximately 11:04 p.m. and concluding at 

approximately 11:06 p.m. This video was played for the jury. However, after reviewing the 

footage, police did not have the names of any of the three suspects shown in the video. 

Information was released to the public in an effort to solve the crime. A number of different tips 

were received and a lot of individuals were looked at as part of the investigation. Having 

received defendant’s name (as well as his co-defendants) as a possible suspect, police then 

looked up his Facebook page to review photos of defendant and were also able to see him and his 

association with his co-defendants. Police also obtained defendant’s driver’s license photograph. 

 A security supervisor in charge of the security cameras at the Lotus Apartment complex 

in Clinton Township testified that he was familiar with a tenant of one of the apartments, 

defendant’s co-defendant, Kenneth Hill. He testified that Hill drove a tan or gold Buick LeSabre 

with tinted windows that had a loud exhaust. The security supervisor further testified that 

security footage from the day of the party store incident shows four individuals leaving the area 

of Hill’s apartment at 10:36 p.m. The video at 10:39 p.m. shows that the car in no longer in the 

parking lot. At 11:16 p.m., Hill’s vehicle is seen returning to the apartment and, a few minutes 

later, the same four individuals are seen walking up the stairway toward Hill’s apartment. The 

security supervisor recognized Hill from the video footage as well as one of the other men “with 

the hair” as having been around before, although he could see neither’s face clearly. The video 

footage was shown to the jury. 

 One of the officers testified that he saw the video footage and still shots from the party 

store surveillance, the video from the apartment complex security camera, and he had also seen 

the Facebook photos from defendant’s Facebook page. He testified that in the party store 

footage and still shots, the subject had a substantial amount of hair underneath his hat, a medium 

complexion, a wide, distinct bridge of his nose, and a build that was not heavy. The officer 

testified that the same characteristics were notable in the apartment complex security video and 

in defendant’s Facebook photos, and that they were able to identify defendant as one of the 

suspects based on these characteristics. Another officer testified that defendant had specific 

characteristics that made him recognizable as well, including his hair, his nose, and a dark 

discoloration under his eyes. 

 One of the officers investigated the cell phone records of defendant. His investigation 

revealed an increased pattern of interaction between defendant and his co-defendants both before 

and after the party store incident. And, records showed that defendant’s phone was in the area of 

the party store at the time of the incident. 
-11- 

 When defendant was arrested at the home of a friend, the friend identified belongings of 

defendant’s that were in her home. Those items included an open duffle bag containing black 

clothing and a black knit ski mask. 

 Looking at the totality of the evidence, and placing special emphasis on the fact that the 

jury was provided with all of the video footage, photographs, and still images, the jury was free 

to make its own determination as to whether defendant was, beyond a reasonable doubt, one of 

the perpetrators of the crimes at issue, even without his statements to police. The evidence 

provided was sufficient to allow them to make this determination in the affirmative. 

III. JURY INSTRUCTIONS 

 Next, defendant argues that he was denied a fair trial because the trial court erroneously 

denied his request for a jury instruction on the defense of accident. We disagree. 

 “[J]ury instructions that involve questions of law are . . . reviewed de novo. But a trial 

court’s determination whether a jury instruction is applicable to the facts of the case is reviewed 

for an abuse of discretion.” 

 Challenges to jury instructions are considered in their entirety to determine 

whether the trial court committed error requiring reversal. Jury instructions must 

clearly present the case and the applicable law to the jury. The instructions must 

include all elements of the charged offenses and any material issues, defenses, and 

theories if supported by the evidence. Therefore, when a jury instruction is 

requested on any theories or defenses and is supported by evidence, it must be 

given to the jury by the trial judge. However, a trial court is not required to give a 

requested instruction where the theory is not supported by evidence. Even when a 

defendant has been charged with first-degree murder and claims a firearm 

accidentally discharged, failure to instruct on accident is not subject to automatic 

reversal but is subject to review for harmless error. In the event of an 

instructional error, a defendant must demonstrate that it is more probable than not 

that the failure to give the requested lesser included misdemeanor instruction 

undermined reliability in the verdict. [Perkins, 314 Mich App at 163-164 

(citations and quotation marks omitted).] 

 Defendant contends that the trial court should have provided M Crim JI 7.1 because the 

discharge of codefendant Darius Diaz-Gaskin’s gun was accidental. M Crim JI 7.1 is titled 

“Murder: Defense of Accident (Involuntary Act)” and provides: 

 (1) The defendant says that [he / she] is not guilty of 

_________________________ because _________________________’s death 

was accidental. That is, the defendant says that ___________________________ 

died because [describe outside force; e.g., “the gun went off as it hit the wall”]. 

 (2) If the defendant did not mean to [pull the trigger / (state other action)] 

then [he / she] is not guilty of murder. The prosecutor must prove beyond a 

reasonable doubt that the defendant meant to ____________________________. 
-12- 

The “Use Note” provides: “This instruction is designed for use where the defendant alleges that 

the act itself was entirely accidental. It is meant to be used as a defense to a murder charge 

only.” 

 In this case, Detective Quinn testified that defendant claimed in his statement to the 

police that the shooting was an accident. However, defendant maintained that it was DiazGaskin, not defendant, who fired the gun. As plaintiff argues, defendant could not know DiazGaskin’s intent, and the circumstances of the shooting, including that the defendants entered the 

store with loaded weapons and that the victim was shot from behind, do not suggest an accident. 

Moreover, although defendant claimed that the shooting was an accident, he did not allege any 

involuntary act or outside force that occurred, such as the gun going off as it hit a wall, which 

would have supported an accident instruction. Contrary to defendant’s assertion, he did not say 

that Diaz-Gaskin and the victim struggled. Thus, despite defendant’s claim that the shooting was 

accidental, M Crim JI 7.1 was not supported by the evidence. See Perkins, 314 Mich App at 

163. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant contends that he was denied the effective assistance of counsel by his trial 

attorney’s failure to object to the officers’ identification testimony. Because we determine that 

the officer’s testimony was admissible, we disagree. 

 Defendant failed to preserve his claim of ineffective assistance of counsel by moving for 

a Ginther8

 hearing or a new trial in the trial court. People v Payne, 285 Mich App 181, 188; 774 

NW2d 714 (2009). Because no Ginther hearing was held, this Court’s review is limited to 

mistakes apparent on the record. Id. To establish a claim of ineffective assistance of counsel, 

[a] defendant must first show that defense counsel’s performance was deficient 

and, second, that counsel’s deficient performance prejudiced the defense. 

Whether defense counsel’s performance was deficient is measured against an 

objective standard of reasonableness. 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. [Payne, 285 Mich App at 

188-189 (citations and quotation marks omitted).] 

 For the reasons discussed in section III, supra, the admission of the officers’ testimony 

did not constitute plain error. “Trial counsel is not ineffective for failing to advocate a meritless 

position.” Payne, 285 Mich App at 191. 

V. SENTENCING 

 

8 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 
-13- 

 Finally, defendant argues that he is entitled to resentencing because the trial court relied 

on the mandatory sentencing guidelines, which have since been rendered advisory. We disagree. 

 Defendant failed to preserve the issue of judicial fact-finding by raising the issue “at 

sentencing, in a motion for resentencing, or in a motion to remand.” People v Terrell, 312 Mich 

App 450, 464 n 40; 879 NW2d 294 (2015), lv held in abeyance ___ Mich ___; 878 NW2d 480 

(2016) (citation and quotation marks omitted). Therefore, review of this issue is for plain error 

affecting defendant’s substantial rights. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 

(2015). 

 In Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s sentencing 

guidelines are unconstitutional to the extent that they require judicial fact-finding beyond facts 

admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily 

increase the floor of the sentencing guidelines minimum sentence range. The Court held that in 

order to avoid any Sixth Amendment violation, Michigan’s sentencing guidelines are to be 

deemed advisory, instead of mandatory. Id. at 391. The Court expressly articulated what is 

necessary to establish a plain error warranting appellate relief in cases involving an unpreserved 

Sixth Amendment claim. Id. at 394. The Court concluded that in cases 

in which (1) facts admitted by the defendant and (2) facts found by the jury were 

sufficient to assess the minimum number of OV points necessary for the 

defendant’s score to fall in the cell of the sentencing grid under which he or she 

was sentenced, . . . because the defendant suffered no prejudice from any error, 

there is no plain error and no further inquiry is required. [Id. at 394-395.] 

 In this case, defendant admits that facts found by the jury were sufficient to assess the 

minimum number of points necessary for his score to fall in the cell of the sentencing grid under 

which he was sentenced. Accordingly, defendant did not suffer prejudice from any error, and no 

further inquiry is required. See Lockridge, 498 Mich at 394-395. 

 Affirmed. 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens 

/s/ Amy Ronayne Krause