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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 19, 2015 

v No. 319726 

Wayne Circuit Court 

LANCE SMALLEY ROGERS, LC No. 13-002481-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 319985 

Wayne Circuit Court 

JAMIL LAKIM BRIGGS-CODY, LC No. 13-002482-FC 

 Defendant-Appellant. 

Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ. 

PER CURIAM. 

 In these consolidated appeals,1

 defendants ask us to overturn their jury trial convictions 

for various criminal offenses, including murder. For the reasons stated below, we reject their 

appeals and affirm their convictions. 

I. FACTS AND PROCEDURAL HISTORY 

 The prosecution charged defendants with the murder of a young college student during an 

attempted robbery in Detroit, and they were tried together before a jury in the Wayne Circuit 

 

1

 Our Court consolidated defendants’ appeals for administrative reasons. See People v Rogers, 

unpublished order of the Court of Appeals, entered February 12, 2015 (Docket Nos. 319726, 

319985). 
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Court. After hearing testimony from two other victims of the robbery, eyewitnesses, police 

officers, and federal agents, the jury convicted defendant Rogers of first-degree, premeditated 

murder under MCL 750.316(1)(a), and possession of a firearm during commission of a felony 

(felony-firearm) under MCL 750.227b. It convicted defendant Briggs-Cody of second-degree 

murder under MCL 750.317, and felony-firearm under MCL 750.227b. 

 On appeal, defendant Rogers argues that he was denied a fair trial because: (1) black 

individuals were supposedly purposely excluded from the jury2; (2) the trial court admitted other 

acts evidence in violation of MRE 404(b). Rogers also says his judgment of sentence must be 

amended because his sentence for felony-firearm was “erroneously imposed” consecutively with 

his conviction for murder. Defendant Briggs-Cody claims that the trial court violated his right to 

due process when it refused to suppress witness testimony identifying him as one of the 

murderers. He also asserts that his trial counsel gave him ineffective assistance. 

II. ANALYSIS 

A. ROGERS’ APPEAL 

1. JURY SELECTION 

 Cases where a criminal defendant claims impermissible exclusion of jurors on the basis 

of race are analyzed under Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). 

When we review a trial court’s decision on a Batson challenge, we use the following standards: 

If the first step is at issue (whether the opponent of the challenge has satisfied his 

burden of demonstrating a prima facie case of discrimination), we review the trial 

court’s underlying factual findings for clear error, and we review questions of law 

de novo. If Batson’s second step is implicated (whether the proponent of the 

peremptory challenge articulates a race-neutral explanation as a matter of law), 

we review the proffered explanation de novo. Finally, if the third step is at issue 

(the trial court’s determinations whether the race-neutral explanation is a pretext 

and whether the opponent of the challenge has proved purposeful discrimination), 

we review the trial court’s ruling for clear error.3 [People v Knight, 473 Mich 

324, 345; 701 NW2d 715 (2005) (footnoted added).]

 “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely 

on account of their race or on the assumption that black jurors as a group will be unable 

impartially to consider the State’s case against a black defendant.” Batson, 476 US at 80; see 

 

2

 Briggs-Cody’s attorney initially made this objection at trial, and Rogers’ attorney joined the 

objection. However, only Rogers—not Briggs-Cody—raises this issue on appeal. 

3

 “A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction 

that a mistake has been made.” People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014) 

(citation omitted). The trial court’s ultimate factual finding with respect to the third step in the 

Batson analysis is “accorded great deference.” Knight, 473 Mich at 344. 
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also People v Armstrong, 305 Mich App 230, 237; 851 NW2d 856 (2014). To determine if such 

a violation of the Equal Protection Clause has occurred, a trial court uses a three-step process. 

Batson, 476 US at 96-98; Armstrong, 305 Mich App at 237-238. 

 First, the defendant must establish a prima facie case of discrimination based on race. 

Armstrong, 305 Mich App at 238. To do so, a defendant must show that: 

(1) he or she is a member of a cognizable racial group; (2) the proponent has 

exercised a peremptory challenge to exclude a member of a certain racial group 

from the jury pool; and (3) all the relevant circumstances raise an inference that 

the proponent of the challenge excluded the prospective juror on the basis of race. 

[Id., quoting Knight, 473 Mich at 336.] 

 “[I]f the proponent of the [peremptory] challenge [that removed the potential jurors at 

issue] offers a race-neutral explanation and the trial court rules on the ultimate question of 

purposeful discrimination, the first Batson step (whether the opponent of the [peremptory] 

challenge made a prima facie showing) becomes moot,” and it is unnecessary for the court to 

perform the analysis associated with that step. Knight, 473 Mich at 338. 

 If the defendant establishes the prima facie case of discrimination based on race, the 

prosecutor may rebut the prima facie case by providing a race-neutral reason for dismissing the 

juror in question. Armstrong, 305 Mich App at 238. The trial court must then decide if the

prosecutor’s reason is a pretext for discrimination. Id. 

 Here, Rogers unconvincingly argues that the prosecution violated the mandates of Batson

and impermissibly excluded black individuals from the jury. Although the trial court ruled that 

Rogers’ Batson challenge had no merit before it required the prosecutor to give a race-neutral 

reason for the dismissal of the potential jurors, the prosecution nonetheless provided such 

reasons. After it heard the prosecution’s explanations, the trial court again held that Rogers’ 

Batson challenge had no merit. Because the trial court ruled on “the ultimate question of 

purposeful discrimination,” we need not review its decision that Rogers failed to establish a 

prima facie case of racial discrimination. Knight, 473 Mich at 338. Accordingly, we look to the 

second and third Batson factors—respectively, (1) whether the proponent of the peremptory 

challenge (here, the prosecution) articulates a race-neutral explanation as a matter of law, and (2) 

whether the race-neutral explanation is a pretext and if the opponent of the challenge (here, 

Rogers) has proved purposeful discrimination—in our review of the trial court’s determination. 

Id. at 345. 

 When it explained its decision to exercise peremptory challenges on the potential jurors 

in question, the prosecution stated that it had done so because the jurors: (1) exhibited certain 

body language; or (2) would likely be overly sympathetic to defendants because defendants were 

young men.4 These rationales are a “clear and reasonably specific explanation of the legitimate 

reasons for exercising the challenges.” Batson, 476 US at 98 n 20 (citation omitted). The 

 

4

 Defendants are indeed young men—Rogers was 23 and Briggs-Cody was 22 at the time of trial. 
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prosecution’s explanations are corroborated by the fact that it asked potential jurors during voir 

dire if they would be sympathetic toward defendants because of their young ages, and explicitly 

mentioned a juror’s body language as a reason for using a peremptory challenge against him. 

The trial court therefore properly held that the prosecutor provided a race-neutral reason for 

dismissing the potential jurors in question. See Armstrong, 305 Mich App at 238. 

 The trial court also correctly determined that Rogers failed to show purposeful 

discrimination, because the prosecution’s race-neutral explanation was not a pretext for racial 

discrimination. Excluding a potential juror for being sympathetic to a defendant’s age is not an 

“implausible or fantastic justification[].” Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 

L Ed 2d 834 (1995). Moreover, “evaluation of the prosecutor’s state of mind based on demeanor 

and credibility lies peculiarly within a trial judge’s province.” Knight, 473 Mich at 364. In this 

case, not only did the trial court observe the prosecution’s demeanor when he provided his 

explanation for dismissing the potential jurors at issue, but the court also witnessed the potential 

jurors’ demeanor when they were questioned during voir dire. Although these individuals said 

they would not be sympathetic to defendants because of their young ages, the transcripts do not 

reflect their “facial expressions, body language, and manner of answering questions.” See 

People v Unger (On Remand), 278 Mich App 210, 258; 749 NW2d 272 (2008). The trial court 

properly ruled that Rogers’ Batson claim of error had no basis, and his argument to the contrary 

is without merit.5

2. EVIDENTIARY ISSUES 

 “A trial court’s decision to admit evidence will not be disturbed absent an abuse of 

discretion, which occurs when the court chooses an outcome that falls outside the range of 

principled outcomes.” People v Douglas, 496 Mich 557, 565; 852 NW2d 587 (2014) (citation 

omitted). “If the court’s evidentiary error is nonconstitutional and preserved, then it is presumed 

not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was 

outcome determinative—i.e., that it undermined the reliability of the verdict.” Id. at 565-566. 

 Here, Rogers claims that the trial court erred in admitting “other acts” evidence—namely, 

the evidence of the circumstances surrounding defendants’ arrest and the recovery of firearms 

from the car in which defendants were arrested—in violation of MRE 404(b). Rogers’ argument 

is wrongheaded and misstates the law, because the evidence of which he complains is not “other 

acts” evidence implicated by MRE 404(b). Rather, it is res gestae evidence, which is an 

exception to MRE 404(b). See People v Robinson, 128 Mich App 338, 340; 340 NW2d 303 

(1983). 

 “Evidence of other criminal acts is admissible when so blended or connected with the 

crime of which defendant is accused that proof of one incidentally involves the other or explains 

the circumstances of the crime.” People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978). 

 

5

 We note that the trial court’s comments on the fact that the defense attorneys, prosecutor, trial 

judge, and officer in charge are black is not necessarily related to the question of whether the 

prosecutor used his peremptory challenges to exclude prospective jurors because of their race. 
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It is the nature of things that an event often does not occur singly and 

independently, isolated from all others, but, instead, is connected with some 

antecedent event from which the fact or event in question follows as an effect 

from a cause. When such is the case and the antecedent event incidentally 

involves the commission of another crime, the principle that the jury is entitled to 

hear the “complete story” ordinarily supports the admission of such evidence. 

[Id.] 

 Res gestae evidence is admissible because “it is essential that prosecutors and defendants 

be able to give the jury an intelligible presentation of the full context in which disputed events 

took place.” People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996). In sum, MRE 404(b) 

does not preclude the admission of evidence that allows the jury to hear the “complete story.” 

Id. at 742. 

 The evidence of the circumstances surrounding defendants’ arrest and the recovery of 

firearms from the vehicle in which they were arrested not only provided the jury with context, 

but was also relevant evidence that linked defendants to the murder.6

 At the hearing on the 

prosecution’s motion in limine, the prosecutor noted that the murderers were driving a red car on 

January 3, 2013. On January 7, 2013, defendants were passengers in a red 2009 Volkswagen 

Jetta. Rogers’s then-girlfriend owned the car, and Rogers borrowed her car the night of the 

shooting. One of the robbery victims also stated that the rifle found in the Jetta looked like the 

one held by Briggs-Cody during the shooting. Thus, the evidence that defendants were in a red 

2009 Volkswagen Jetta four days after the shooting and that a rifle was also found in the car 

directly tied defendants to the shooting.7

3. JUDGMENT OF SENTENCE 

 Rogers did not challenge his sentence in the trial court, so this issue is unpreserved. See 

People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). An 

unpreserved claim is reviewed for plain error that affects a defendant’s substantial rights. People 

v King, 297 Mich App 465, 481; 824 NW2d 258 (2012). “Reversal is warranted only when the 

plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error 

seriously affected the fairness, integrity or public reputation of judicial proceedings independent 

of the defendant’s innocence.” People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 

 

6

 “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” MRE 401. 

7

 Nor did the trial court err when it allowed a Michigan State Trooper to testify that two 

handguns were also found in the Jetta. Despite the fact that both parties later stipulated that 

neither of these handguns were identical to those used in the murder, “[e]vidence of a 

defendant’s possession of a weapon of the kind used in the offense with which he is charged is 

routinely determined by courts to be direct, relevant evidence of his commission of that offense.” 

People v Hall, 433 Mich 573, 580-581; 447 NW2d 580 (1989). 
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(1999). Issues of statutory interpretation, including whether the trial court erred in ordering a 

defendant’s felony-firearm sentence to be served consecutively to his other sentences, are 

reviewed de novo. People v Clark, 463 Mich 459 n 9; 619 NW2d 538 (2000). 

 “From the plain language of the felony-firearm statute, it is evident that the Legislature 

intended that a felony-firearm sentence be consecutive only to the sentence for a specific 

underlying felony.” Clark, 463 Mich at 463. MCL 750.227b(2) provides that a term of 

imprisonment for felony-firearm “shall be served consecutively with and preceding any term of 

imprisonment imposed for the conviction of the felony or attempt to commit the felony.” 

(Emphasis added.) This emphasized language refers back to the predicate offense discussed in 

MCL 750.227b(1)—“the offense during which the defendant possessed a firearm.” Clark, 463 

Mich at 464. 

 Here, Rogers unconvincingly says that the trial court erred when it made his sentence for 

his first-degree murder and felony-firearm convictions consecutive. Though the amended felony 

information mistakenly lists the underlying felony for his felony-firearm charge as armed 

robbery and/or larceny,8

 an offense of which he ultimately was not charged, he has failed to 

show that this clerical error prejudiced him in any way. Carines, 460 Mich at 763-764. 

 In any event, the trial court instructed the jury that defendant was charged with 

“possessing a firearm at the time he committed or attempted to commit the crime of murder in 

the first degree or murder in the second degree.” The court said the elements were: 

 

8

 Rogers was presumably aware of this mistake, yet he did nothing to correct it in the trial court. 

The felony information indicates that the sentence for the felony-firearm conviction would be 

two years’ imprisonment, consecutive to and preceding “any term of imprisonment imposed for 

the felony or attempted felony conviction.” Rogers had notice that the prosecution intended 

first-degree, premeditated murder to serve as the underlying basis for the felony-firearm charge, 

because the first-degree murder charge is the only other charge listed on the felony information. 

Accordingly, the felony-firearm sentence could not have been consecutive to any other sentence 

besides the murder sentence. As such, the prosecution obviously sought consecutive sentences 

for the first-degree murder and felony-firearm convictions, if defendant was convicted of both. 

Because Rogers had notice of this intent, he had the opportunity to “adequately prepare a 

defense” and “respond to the charges against him,” but he did not. People v Chapo, 283 Mich 

App 360, 364; 770 NW2d 68 (2009). 

Had Rogers actually raised this issue in the trial court, it could have been remedied. Although 

the amended information is not dated, the court used it to arraign Rogers on March 27, 2013. 

Thus, he had several months before his trial began to object to the information, question its 

accuracy, or argue that his sentence for felony-firearm, if he was convicted, should not be 

consecutive to any other sentences. If Rogers had done so, then the felony information could 

have been amended to fix this error, so that first-degree murder was listed as the underlying 

felony for the felony-firearm charge. “A trial court may permit amendment of the information at 

any time to correct a variance between the information and the proofs, unless doing so would 

unfairly surprise or prejudice the defendant.” Unger, 278 Mich App at 221. 
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First, that the defendant committed or attempted to commit either of those crimes 

which have been defined for you. It is not necessary however that the defendant 

be convicted of a [sic] that crime. 

Second, that at the time the defendant committed or attempted to commit a crime 

he knowingly carried or possessed a firearm. A pistol is a firearm. 

 The court gave Rogers’ lawyer the opportunity to voice any objections to the jury 

instructions, and the attorney did not raise any challenge to the court’s instruction on the felonyfirearm charge. In light of these instructions, the jury obviously found that Rogers used a firearm 

to commit first-degree murder. Again, Rogers’ attorney also did not object at sentencing when 

the court sentenced Rogers to life imprisonment for his first-degree murder conviction and two 

years’ imprisonment for his felony-firearm conviction, to be served consecutively. 

B. BRIGGS-CODY’S APPEAL 

1. IDENTIFICATION EVIDENCE9

 “A photographic identification procedure or lineup violates due process guarantees when 

it is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” 

People v Henry (After Remand), 305 Mich App 127, 160-161; 854 NW2d 114 (2014). A 

photographic lineup may be impermissibly suggestive if the witness is told that the police have 

apprehended the right person or the defendant is singled out in some way. People v Gray, 457 

Mich 107, 111; 577 NW2d 92 (1998). However, 

physical differences between a suspect and other lineup participants do not, in and 

of themselves, constitute impermissible suggestiveness. Differences among 

participants in a lineup are significant only to the extent they are apparent to the 

witness and substantially distinguish defendant from the other participants in the 

line-up. It is then that there exists a substantial likelihood that the differences 

among line-up participants, rather than recognition of defendant, was the basis of 

the witness’ identification. [Henry, 305 Mich App at 161.] 

 When determining if an identification procedure was suggestive, a court should consider 

“the totality of the circumstances.” Id. “[S]light physical differences or variations” between a 

defendant and the other lineup participants merely constitute “noticeable differences,” and do not 

“result in a substantial likelihood of misidentification.” McDade, 301 Mich App at 358. If 

lineups did not include individuals with “slight physical differences or variations, it would make 

it nearly impossible for the police to compose a lineup, forcing authorities to search for ‘twinlike’ individuals to match against a defendant.” Id. 

 

9

 “The trial court’s decision to admit identification evidence will not be reversed unless it is 

clearly erroneous.” People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995). The trial 

court clearly errs when “the reviewing court is left with a definite and firm conviction that a 

mistake was made.” People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). 
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 Here, Briggs-Cody says the trial court erred when it denied his pretrial motion to 

suppress evidence that one of the robbery victims identified him in a photographic lineup as the 

man who had the rifle at the scene of the shooting. Specifically, Briggs-Cody argues that the 

photographic lineup the police showed to the witness was impermissibly suggestive, because 

none of the other participants in the lineup looked like him, due to differences in skin tone, eye 

color, and other physical characteristics. 

 This argument is not convincing, because, as noted, “physical differences between a 

suspect and other lineup participants” are generally insufficient to “constitute impermissible 

suggestiveness.” Henry, 305 Mich App at 161. Physical differences are significant only when 

they substantially distinguish the defendant from the other individuals in the lineup, or when the 

defendant is singled out in some way. Id. Again, “slight physical differences or variations” 

between a defendant and the other lineup participants merely constitute “noticeable differences,” 

and do not “result in a substantial likelihood of misidentification.” McDade, 301 Mich App at 

358.10

 In addition, the court made the photographic lineup available to the jury, and both parties 

discussed it thoroughly at trial. The jury thus had the opportunity to see the physical differences 

between Briggs-Cody and the participants, and determine if those differences undermined the 

victim’s identification of Briggs-Cody as one of the assailants. “The credibility of identification 

testimony is a question for the trier of fact that we do not resolve anew.” People v Davis, 241 

Mich App 697, 700; 617 NW2d 381 (2000). For these reasons, the trial court properly denied 

Briggs-Cody’s motion to suppress the victim’s pretrial identification of him from a photographic 

lineup. See McDade, 301 Mich App at 356. 

2. ASSISTANCE OF COUNSEL11

 Criminal defendants have the right to effective assistance of counsel. US Const, Am VI; 

Const 1963, art 1, § 20. “To demonstrate ineffective assistance of counsel, a defendant must 

show that his or her attorney’s performance fell below an objective standard of reasonableness 

under prevailing professional norms and that this performance caused him or her prejudice.” 

People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013). “To demonstrate prejudice, a 

 

10 Moreover, the description the victim gave to the police stated that the man who held the rifle 

during the shooting was black, 24 to 25 years old, and about 5 feet, 7 inches tall. Given this 

vague description, it is understandable that the lineup included individuals with different skin 

tones, varied eye colors, and other physical dissimilarities. And Briggs-Cody could not have 

been singled out by the lineup, because the participants all varied in terms of physical 

appearance. See Gray, 457 Mich at 111. 

11 Generally, whether a defendant had the effective assistance of counsel is a “mixed question of 

fact and constitutional law.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). 

Findings of fact are reviewed for clear error, while questions of law are reviewed de novo. Id. 

Because Briggs-Cody did not move for a new trial or an evidentiary hearing in the trial court, our 

“review is limited to mistakes apparent from the record.” Id. 
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defendant must show the probability that, but for counsel’s errors, the result of the proceedings 

would have been different.” Id. 

 “An attorney’s decision whether to retain witnesses, including expert witnesses, is a 

matter of trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). 

Counsel is presumed to employ effective trial strategy, and it is a heavy burden for a defendant to 

prove otherwise. Id. at 190. “In general, the failure to call a witness can constitute ineffective 

assistance of counsel only when it deprives the defendant of a substantial defense.” Id. This is 

in part because jurors do not need an expert to tell them that memories are fallible—instead, 

“questions of eyewitness identification, fading memories, witnesses’ body language, and the like 

involve obvious human behavior from which jurors can make commonsense credibility 

determinations.” People v Kowalski, 492 Mich 106, 143; 821 NW2d 14 (2012). 

 Here, Briggs-Cody unavailingly claims that his trial counsel gave him ineffective 

assistance because she did not call an expert witness to testify about the supposed fallibility of 

eyewitness identification. But it was unnecessary for trial counsel to call such a witness, because 

doing so did not “deprive[] defendant of a substantial defense.” Payne, 285 Mich App at 190. 

Briggs-Cody’s attorney explicitly argued that the prosecution’s witnesses misidentified him, and 

she thoroughly examined the witness who identified Briggs-Cody in the photographic lineup. 

The identifying witness also testified that he was kicked in the eye, could not see very clearly 

during the robbery, and that he had smoked marijuana earlier in the day. The jury heard his 

testimony, which brought into question his identification of Briggs-Cody—and yet the jury still 

convicted Briggs-Cody. Briggs-Cody has failed to show that his attorney’s decision to attack the 

credibility of the witness’ identification of him through cross-examination and highlights of his 

earlier testimony was not a sound trial strategy. See Payne, 285 Mich App at 190. 

 In any event, Briggs-Cody does not provide an offer of proof with the name of a 

proposed expert who would have testified in his favor, or the exculpatory nature of the expected 

testimony. A defendant does not establish “the factual predicate for his claim” if he offers “no 

proof that an expert witness would have testified favorably if called by the defense.” People v 

Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). 

 Accordingly, Briggs-Cody’s trial attorney did not provide him with ineffective assistance, 

and his claim to the contrary is without merit. 

 Affirmed. 

/s/ Mark J. Cavanagh 

/s/ Henry William Saad