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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 12, 2015

v No. 318524 Wayne Circuit Court ALEXANDER ISAIAH ANSARI, LC No. 12-010941-FC

Defendant-Appellant.

Before: F ORT H OOD P.J., and J ANSEN and G ADOLA , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial convictions of fi rst-degree murder, MCL 750.316, two counts of assault with intent to commit murder , MCL 750.83, and possession of a firearm during the commi ssion of a felony (felony-firearm) , MCL 750.227b. Defendant was sentenced to life imprisonment without parole for his first-deg ree murder conviction, 20 to 50 years’ imprisonment for both assault with intent to commit murd er convictions, and two years’ imprisonment for his felony-firearm conviction. We affirm, but remand for the ministerial task of amending the judgment of sentence.

I. BACKGROUND

On September 22, 2012, Rosalind Barley and Ileana Cuevas drove to 4238 Cicotte Street in Detroit, Michigan, the residence of Miguel Figeroa. Barley testified that immediately after Figeroa entered the backseat of the vehicle, she heard a series of loud noises that sounded like fireworks. Barley explained that she did not immediately reali ze the noises were gunshots hitting her vehicle; however, after looking out the passenger w indow, she saw defendant across the street holding a long gun. Figeroa testified that he obser ved defendant fire the weapon toward the vehicle.

After hearing the shots, Figeroa quickly exited the vehicle an d Barley drove away from the scene. Barley testified that as she was driving away, she looked at Cuevas and noticed Cuevas’s arm was stiff and her lips were white. Barley drove t o the parking lot of a nearby restaurant where she realized she had been shot in the right sh oulder. Cuevas died as the result of a gunshot wound to the chest.

Meanwhile, upon exiting the vehicle, Figeroa began running fro m the scene. While he was running, Figeroa was shot i n the back and the leg. Figeroa testified that after being shot, he-2- turned around in order “to get a good look at [the shooter] aga in,” and was then shot in the face. Figeroa explained that he called his sister on his phone and co ntinued running, but collapsed when he reached the next block. His sister soon arrived and dr ove him to the hospital. The police later arrived t o investigate the in cident, but the shoot er was not apprehende d at the scene.

On September 27, 2012, Barley was shown a photographic array, which did not include a photograph of defendant. Barley was unable to identify the sho oter among the photographed individuals. On October 2, 2012, Figeroa was shown a differentphotographic array, which also did not include a photograph of d efendant. Figeroa was unable to identify the shooter among the photographed individuals. Ther eafter, Detroit Police Officer M oises Jimenez had Figeroa work with a sketch artist to produce a drawing of the shooter. Jime nez testified that he obtained defendant’s name as a suspect in the shooting, and after compar ing defendant’s photograph with the drawing, he decided to creat e another photographic array fo r Figeroa and Barley to review.

On October 11, 2012, Figeroa was shown a photographic array th at included the defendant, and Figeroa identified him as the shooter. On Octob er 12, 2012, Barley was shown the same photographs, but was unable to identify the shooter. On November 19, 2012, the police held a live lineup in which all participants wore orange caps t o cover their hair. Barley and Figeroa both identified defendant as the shooter at the live li neup. On January 3, 2013, defendant filed a motion to suppress his identification, arguin g that the photographic arrays were unduly suggestive and tainted the live lineup id entifications b y Figeroa and Barley. On May 1, 2013, the court denied defendant’s motion.

At trial, both Figeroa and Bar ley identified defendant in cour t as the shooter. In response, defendant introduced the testimony of Leola Marlowe. Marlowe t estified that on September 22, 2012, she heard gunshots while she was in her home near Cicotte Street. Marlowe stated that she saw a man with a gun run down the alley from Cicotte Street, pl ace the gun in the trunk of a car, and drive away. Marlowe testifi ed that she knew defendant from the neighborhood and he was not the person she saw running from the scene. Over defendant’ s objection, the court allowed the prosecution to call Jimenez as a rebuttal witness. Jimenez testified that when he interviewed Marlowe immediately after the shooting she was nervous, shaky, and scared. The jury found defendant guilty of all crimes charged.

II. UNDULY SUGGESTIVE LINEUP

Defendant first argues that the trial court clearly erred and violated his due process rights by refusing to suppress the iden tification evidence obtained fr om allegedly unduly suggestive pretrial identification pr ocedures. We disagree.

In general, we will not reverse a trial court’s decision to ad mit identification evidence unless it is clearly erroneous. People v McDade , 301 Mich App 343, 356; 836 NW2d 266 (2013). We review a trial court ’s findings of fact with regard to a motion to suppress for clear

error. People v Murphy (On Remand) , 282 Mich App 571, 584; 766 NW2d 303 (2009). “Clear error exists when the reviewing court is left with a definite a nd firm conviction that a mistake was made.” McDade , 301 Mich App at 356. We review issues of constitutional law de novo. People v Hickman , 470 Mich 602, 605; 684 NW2d 267 (2004).-3- “In order to sustain a due process challenge, a defendant must show that the pretrial identification procedure was so suggestive in light of the tota lity of the circumstances that it led to a substantial likelihood of misidentification.” People v Kurylczyk , 443 Mich 289, 302; 505 NW2d 528 (1993). Generally, a phot ographic array is not unduly suggestive if “it contains some photographs that are fairly repre sentative of the defendant’s p hysical features.” Id. at 304. Differences in the physical characteristics or clothing of a de fendant and other persons pictured in a photographic array do not n ecessarily render a lineup impe rmissibly suggestive. Id. at 304- 305. Rather, “[p]hysical differences . . . are significant onl y to the extent that they are apparent to the witness and substantially distinguish the defendant from the other lineup participants.” People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002). 1

A witness’s identification of a defendant may be deemed improp er if differences in the photographs used in a photographic array “led to a substantial likelihood of mis identification.” Kurylczyk , 443 Mich at 305. Generally, reviewing courts will find impro priety if a witness identifies a defendant “on the basis of some external character istic, rather than on the basis of the defendant’s looks.” Id. The mere fact that a defendant was the only individual to app ear in both a photographic array and a subseq uent live lineup does not rend er the pretrial identification procedure improper. People v Currelley , 99 Mich App 561, 568; 297 NW2d 924 (1980).

Defendant argues that the phot ographic arrays with his picture were unduly suggestive because he was the only person with dread locks while the other men had either braids or corn rows. The trial court stated t he following regarding the photo graphic array:

Four of the individuals in the array clearly have braids of so me form, although two have longer braids an d number 4 appears to have hi s hair braided closer to his head, as does that of number 6. Number one does not have braids, but his hair is fairly long. Numbers 1 through 5 all have simi lar facial features, while number 6 has a much fuller face. The photographs are clo se enough in general characteristics that they do not appear impermissibly s uggestive on their face. This is borne out by the actual identifications by the w itnesses. Mr[.] Figeroa was able to identify the defendant. Ms. Ba[r]ley was u nable to identify
anyone. . . .
A review of the photographs confirms that the trial court’s fac tual findings were not clearly erroneous. As the trial court indicated, defendant’s facial fe atures, including his facial hair, are strikingly similar to four of the other photographed men, and d efendant’s skin tone is similar to four of the other men pictured. Additionally, it is difficult to distinguish the exact nature and thickness of defendant’s hairsty le, i.e., dreadlocks versus bra ids, compared with the other men pictured in the array.

1 Our Supreme Court has noted tha t the following differences did not render a phot ographic array unduly suggestive: (1) when the p hotographs included individua ls “with different complexions and facial hair” and the photograp hs were not the same size; (2 ) when “only two of the six photographs depicted mustaches, even though the witness describ ed the robber as having a mustache”; and (3) when four photographed individuals had facia l hair and the defendant was clean shaven. Kurylczyk , 443 Mich at 304 n 11.-4- The record also indicates thatBarley and Figeroa did not expl icitly differentiate between the hairstyles in the photographs and did not rely on character istics other than defendant’s looks in identifying him through the photographic array and at the li ve lineup. When asked whether he identified the shooter in the phot ographic array, Figeroa state d, “I could never forget his face.” Likewise, when asked what defendant’s hair looked like, Barley explained, “I don’t really know, like dreadlocks, braids, whateve r type of hair he had on his he ad.” In her statement to the police, Barley only mentioned that the d efendant “possibly [had] braids /corn rows.” Further, all of the participants in the live lineup wore caps that covered their ha ir, which indicates that Figeroa and Barley identified defendant on the basis of personal characteri stics other than his hairstyle.

In this case, the photographi c array was not “so suggestive in light of the totality of the circumstances that it led to asubstantial likelihood of miside ntification” because the array contained photographs that fairly represented defendant’s physi cal features. Kurylczyk , 443 Mich at 302, 304. Because the photographic array was not undul y suggestive, Figeroa’s and Barley’s subsequent identificati ons of defendant at the live li neup were not improper. Accordingly, the trial court did not err in denying defendant’s motion to suppress his identification. 2

III. REBUTTAL TESTIMONY

Defendant next argues that the trial court abused its discreti on by admitting the rebuttal testimony of Jimenez to contradict Marlowe’s testimony. We agr ee, but conclude that the error was harmless.

We review a trial court’s deci sion to admit rebuttal testimony for an abuse of discretion. People v Figgures , 451 Mich 390, 398; 547 NW2d 673 (1996). An abuse of discreti on occurs when a trial court “chooses an out come that is outside the rang e of reasonable and principled outcomes.” People v Orr , 275 Mich App 587, 589; 739 NW2d 385 (2007).

A trial court may admit rebuttal evidence to “ ‘contradict, re pel, explain or disprove evidence produced by the other party and tending directly to we aken or impeach the same.’ ” People v DeLano , 318 Mich 557, 570; 28 NW2d 909 (1947), quoting People v Utter , 217 Mich 74, 83; 185 NW 830 (1921). “[T]he test of whether rebuttal evi dence was properly admitted is not whether the evidence could have been offered in the prosecu tor’s case in chief, but, rather, whether the evidence is properly responsive to evidence introdu ced or a theory developed by the defendant.” Figgures , 451 Mich at 399. “[E]vidence [t hat] is responsive to materia l presented by the defense . . . is properly classified as rebuttal,” but “ a denial cannot be elicited on crossexamination simply to facilitate the admission of new evidence. ” Id . at 399, 401.

2 Because we conclude that the pretrial identification procedure s were not unduly suggestive, we also conclude that the prosecuto r was not required to establish an independent basis for the witnesses’ in court identif ication of defendant. People v McElhaney , 215 Mich App 269, 286; 545 NW2d 18 (1996).-5- This Court has affirmed the following regarding the relationsh ip between evidence of specific conduct offered to attack or bolster a witness’s credi bility that is inadmissible under MRE 608 and evidence that is admi ssible as rebu ttal evidence:

Although MRE 608(b) generally prohibits impeachment of a witne ss by extrinsic evidence regarding collateral, irrelevant, or immater ial matters, a party may introduce rebuttal evidence to contradict the answers elici ted from a witness on cross-examination regarding matters germane to the issue if the rebuttal evidence is narrowly focused on refuting the witness’[s] statem ents. [ People v Spanke , 254 Mich App 642, 644-645; 658 NW2d 504 (2003).]

In this case, although the prosecutor offered Jimenez’s testim ony to weaken Marlowe’s testimony, Jimenez’s testimony wa s not “properly responsive to evidence introduced or a theory developed by the defendant.” Figgures , 451 Mich at 399. During cross-examination, Marlowe testified that she was not afraid to testify in court or to liv e in her neighborhood. On recrossexamination, the prosecutor asked Marlowe whether she was afrai d at the time she spoke with Jimenez, and Marlowe clarifie d in the following exchange:

Q . And you did talk to him about the fear that you feel, also, Officer Jimenez, in the neighborhood, isn’t that correct?

A . Yes.

Q . Okay.

A . At that time.

Q . At that time?

A . Mm—hmm.

Q . And you’re testifying a little bit differently than you did the first time, is that fair to say?

A . Well, I’m not afraid of the neighborhood anymore. We pretty well cleared it up.

On rebuttal, Jimenez testified that when he spoke with Marlowe on September 22, 2012, she was shaky, scared, and nervous.

Jimenez’s testimony regarding Marlowe’s demeanor did not contr adict, repel, explain, or disprove a substantive matter about which Marlowe testified or a theory developed by the defense. Jimenez’s rebuttal testimony was not germane to—and d id not contradict or refute—the main issue to which Marlowe’s testimony was relevant, i.e., whe ther defendant was the perpetrator of the crimes. Jimenez’s rebuttal testimony also did not properly fall within the narrow exception that permits a prosecutor to introduce rebutta l testimony to contradict statements elicited on cross-examination. During cross-examina tion, Marlowe testified that she was not afraid to live in her neighborhood. However, during re cross-examination, she clarified that she was afraid at the time she spoke with Jimenez, but she was no longer afraid because the-6- neighborhood had improved. Jimenez’s testimony regarding Marlo we’s demeanor did not contradict, but rather confirme d Marlowe’s testimony. Further, the fear or apprehension Marlowe felt while conversing w ith Jimenez was not “closely bea ring” on defendant’s guilt or innocence. People v LeBlanc , 465 Mich 575, 590; 640 NW2d 246 (2002). Therefore, the trial court abused its discretion by admitting Jimenez’s rebuttal tes timony.

However, reversal of defendant ’s convictions is not required b ecause the trial court’s error was harmless. MCL 769.26 provides the following:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of . . . the improper admission or rejection of evidence . . . unless in the opinion of the court, after an examination of the ent ire cause, it shall affirmativel y appear that the error complained of has resulted i n a miscarriage of justice.

An evidentiary error related t o rebuttal testim ony is a noncons titutional error, as the purpose of limiting rebuttal testimony is to “preclude the trial from turn ing into a trial of secondary issues,” and not to protect the constitutional rights of the defendant. Figgures , 451 Mich at 398. As a result, the error in this case “ ‘is presumed not to be a groun d for reversal unless it affirmatively appears that, more probably than not, it was outcome determinat ive.’ ” People v Feezel , 486 Mich 184, 192; 783 NW2d 67 (2010), quoting People v Krueger , 466 Mich 50, 54; 643 NW2d 223 (2002). In determining whether an error was prejudicial, w e consider the weight of the error compared with the strength of the untainted evidence. Feezel , 486 Mich at 192.

In this case, it is not more probable than not that the trial court’s error was outcome determinative. The prosecution introduced significant untainte d evidence against defendant. Figeroa testified that defendant fired multiple gunshots at Bar ley’s car, killing Cuevas and injuring Barley and Figeroa. Barley testified that defendant wa s standing across the street holding a gun after the shots were fired. Figeroa testified th at defendant continued shooting at him after he exited Barley’s vehicle, and that defendant shot h im in the face when he turned around to look at defendant. Jimenez’s rebuttal testimony was brief and did not explicitly contradict Marlowe’s substantive testimony because it only addr essed Marlowe’s demeanor after the incident. Contrary to defendant’s argument on appeal, Jime nez’s testimony did not imply that defendant frightened Marlowe or that Marlowe fabricated he r testimony at defendant’s behest. Given the strength of the untainted evidence, it is un likely that Jimenez’s rebuttal testimony was outcome determina tive. Accordingly, the trial co urt’s error was harmless and defendant is not entitled to a new trial.

IV. CONSECUTIVE SENTENCE

Finally, defendant argues that t he trial court erred by ruling that the sentence imposed for his felony-firearm conviction must be served consecutive to the sentences imposed for his assault with intent to commit murder convi ctions. Defendant did not ra ise this issue below, so it is unpreserved for appeal. People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). We review unpreserved claims for plain error a ffecting substantial rights, which “generally requires a show ing of prejudice, i.e., that th e error affected the outcome of the lower court proceedings.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).-7- Under Michigan law, “[a] consecu tive sentence may be imposed o nly if specifically authorized by statute.” People v Lee , 233 Mich App 403, 405; 592 NW2d 779 (1999). MCL 750.227b(1)-(2), the felony-fir earm statute, provides the f ollowing:

(1) A person who carries or has in his or her possession a fire arm when he or she commits or attempts to commit a felony . . . shall be im prisoned for 2
years. . . .
(2) A term of imprisonment prescribed by this section is in add ition to the sentence imposed for the conviction of the felony or the attemp t to commit the felony, and shall be served cons ecutively with and preceding an y term of imprisonment imposed for the conviction of the felony or attemp t to commit the felony.

Our Supreme Court has interpreted MCL 750.227b(2) and held that “the Legislature intended that a felony-firearm sentence be consecutive only to the sente nce for a specific underlying felony.” People v Clark , 463 Mich 459, 463; 619 NW2d 538 (2000). T he “felony” referen ced in subsection 2 “refers back to the predicate offense discussed in subsection 1, i.e., the offense during which the defendant possessed a firearm.” Id . at 464. Therefore, the felony-firearm statute only permits a trial court to impose a se ntence for a f elony-firearm convic tion consecutive with the sentence for a charged predicate offense. Id

. In this case, the amended information indicates that defendant ’s first-degree murder charge was the only predicate fe lony for his felony-firearm cha rge. The prosecutor did not file separate felony-firearm charges fo r either count of assault wit h intent to commit murder. Accordingly, the trial court erred in imposing defendant’s felo ny-firearm sentence consecutive with the sentences for his assault with intent to commit murder convictions. Both parties agree that this matter should be remanded to correct the judgment of sentence, so it is unnecessary to determine whether defendant was prejudiced by the trial court’s error.

We affirm defendant’s convicti ons and sentences, but remand fo r the ministerial task of amending the judgment of sentence to indicate that the sentence imposed for defendant’s felonyfirearm conviction should be served consecutive to the sentence imposed for his first-degree murder conviction and concurrent with the sentences imposed for his assault with intent to commit murder convictions.

/s/ Karen M. Fort Hood /s/ Kathleen Jansen /s/ Michael F. Gadola