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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 14, 2016 

v No. 326738 

Muskegon Circuit Court 

MICAH ISHONE QUINN, LC No. 14-064748-FC 

 Defendant-Appellant. 

Before: MURRAY, P.J., and SAWYER and METER, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529, 

unlawful imprisonment, MCL 750.349b, and two counts of possession of a firearm during the 

commission of a felony (“felony-firearm”), MCL 750.227b. He was sentenced to 21 to 40 years’ 

imprisonment for his armed robbery convictions, 10 to 15 years’ imprisonment for his unlawful 

imprisonment conviction, and two years’ imprisonment for each of the felony-firearm 

convictions. We affirm his convictions but remand to comply with the procedures set forth in 

People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). 

I. FACTUAL BACKGROUND 

 This appeal arises out of the robbery of a pizza delivery man, Roy Ferguson. As 

Ferguson was delivering an order to a house in Muskegon, defendant and codefendant Taylin 

Alexander Glenn followed Ferguson to the door, and defendant put a gun to the back of 

Ferguson’s head. Ferguson was ordered to walk back to his car and to empty his pockets, which 

included approximately $20, his cell phone, wallet, and keys. Defendant took Ferguson’s money 

and wallet and then ordered Ferguson into the trunk of the car. Ferguson complied. Unsure of 

what to do with Ferguson, Glenn and defendant drove the car while Ferguson was locked in the 

trunk. 

 After stopping the car multiple times to physically assault Ferguson, Glenn and defendant 

stopped the car a final time, unlocked the trunk, and told Ferguson to count to 100 before exiting 

the trunk. After counting to 100, Ferguson exited the trunk and began walking to the nearest gas 

station to call the police. 
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 After a police investigation, defendant was arrested and charged with armed robbery, 

unlawful imprisonment, and two counts of felony-firearm. A jury convicted defendant as 

charged and this appeal ensued. 

II. ANALYSIS 

A. UNNECESSARILY SUGGESTIVE IDENTIFICATION PROCEDURE 

 Defendant first argues that Ferguson’s identification of him after seeing his picture in the 

newspaper constitutes an unnecessarily suggestive identification procedure that tainted 

Ferguson’s subsequent identifications of defendant at the preliminary examination and at trial. 

Defendant did not raise this issue in the trial court, and is therefore unpreserved for appellate 

review. People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). We review 

unpreserved issues for plain error affecting his substantial rights. People v Carines, 460 Mich 

750, 762-765; 597 NW2d 130 (1999). Under the plain error standard, the defendant bears the 

burden of showing that: “1) error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) 

and the plain error affected substantial rights,” “i.e., that the error affected the outcome of the 

lower court proceedings.” Id. at 763. 

 “An identification procedure that is unnecessarily suggestive and conducive to 

irreparable misidentification constitutes a denial of due process.” People v Williams, 244 Mich 

App 533, 542; 624 NW2d 575 (2001). However, the due process protections against 

unnecessarily suggestive identification procedures do not apply in the absence of state action. 

As the Supreme Court has recently held, the “due process check on the admission of eyewitness 

identification [is] applicable when the police have arranged suggestive circumstances leading the 

witness to identify a particular person as the perpetrator of a crime.” Perry v New Hampshire, __ 

US __; 132 S Ct 716, 730; 181 L Ed 2d 694 (2012) (emphasis added). 

 Here, defendant has not identified any act by law enforcement officers that improperly 

suggested that defendant was the perpetrator. Ferguson merely testified that he had seen a 

picture of defendant in the newspaper. Defendant has not come forth with any evidence 

indicating that Ferguson’s viewing of the news report was arranged by law enforcement or that 

the police officers led Ferguson to identify defendant as the perpetrator of the crimes. Because 

there was no state action involved in Ferguson’s identification of defendant from a picture in the 

newspaper, due process does not require suppression of the subsequent identifications. Id. 

 Even if we were to assume that the pretrial identification procedure was impermissibly 

suggestive, an independent basis for Ferguson’s identification of defendant existed, thus 

removing the taint of the alleged impermissibly suggestive procedure. See Williams, 244 Mich 

App at 542-543. (“If the trial court finds the procedure was impermissibly suggestive, evidence 

concerning the identification is inadmissible at trial unless an independent basis for in-court 

identification can be established that is untainted by the suggestive pretrial procedure.” 

(quotation marks and citation omitted)). With respect to whether there was an independent basis 

to identify the defendant at trial, there are “eight factors that a court should use in determining if 

an independent basis exists:” (1) “Prior relationship with or knowledge of the defendant;” (2) 

“The opportunity to observe the offense. This includes such factors as length of time of the 

observation, lighting, noise or other factor[s] affecting sensory perception and proximity to the 
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alleged criminal act;” (3) “Length of time between the offense and the disputed identification;” 

(4) “Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual 

description;” (5) “Any previous proper identification or failure to identify the defendant;” (6) 

“Any identification prior to lineup or showup of another person as defendant;” (7) “[T]he nature 

of the alleged offense and the physical and psychological state of the victim;” and (8) “Any 

idiosyncratic or special features of defendant.” People v Gray, 457 Mich 107, 115-116; 577 

NW2d 92 (1998). However, these factors are not exhaustive. Id. at 117 n 12. 

In the present case, Ferguson testified that he looked directly at defendant and that there 

was adequate lighting coming from the house where he was delivering food. Additionally, the 

preliminary examination was slightly longer than a month after the incident, which is considered 

a “relatively short period of time.” Id. at 120. Ferguson was asked to identify the perpetrator in 

a photographic lineup (which did not include a photograph of defendant) and Ferguson did not 

erroneously select anyone in the photographic lineup. Additionally, Ferguson’s description of 

defendant—5’ 9” with a medium build—was generally accurate. While Ferguson testified that 

he was nervous during the offense because of the gun, he also testified that he had “a good look” 

at defendant and that he made a point to remember what defendant looked like in the event he 

needed to tell his employer or the police. Ferguson also testified that he identified defendant 

based on what he saw on the night of the incident and that he was sure that defendant was the 

individual. These factors all weigh in favor of concluding that Ferguson had an independent 

basis for his identification of defendant. In contrast, only two factors weigh against such a 

conclusion. First, Ferguson and defendant did not have a prior relationship, nor did Ferguson 

know defendant before the offense. Second, defendant did not identify any idiosyncratic or 

special features of defendant. Nevertheless, after a review of the relevant factors, the totality of 

the circumstances supported the admission of Ferguson’s identification as an independent basis 

existed to remove any alleged taint of an unnecessarily suggestive pretrial identification. 

Williams, 244 Mich App at 542-543. Thus, defendant has not demonstrated that a plain error 

occurred. Carines, 460 Mich at 763. 

B. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Next, defendant argues that trial counsel was ineffective for failing to bring a motion to 

suppress the pretrial identification, failing to bring a motion to suppress defendant’s confession, 

and failing to ask certain questions and call alibi witnesses. Because no Ginther1

 hearing was 

conducted, this Court’s review is limited to mistakes apparent on the record. People v Wilson, 

242 Mich App 350, 352; 619 NW2d 413 (2000). The questions presented by a claim of 

ineffective assistance of counsel are mixed questions of law and fact; findings of fact by the trial 

court, if any, are reviewed for clear error, and questions of constitutional law are reviewed de 

novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “Clear error exists if the 

reviewing court is left with a definite and firm conviction that the trial court made a mistake.” 

People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). 

 

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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 To establish ineffective assistance of counsel, a defendant must show that “his attorney’s 

performance fell below an objective standard of reasonableness,” and “this performance so 

prejudiced him that he was deprived of a fair trial.” People v Grant, 470 Mich 477, 485-486; 

684 NW2d 686 (2004). In order to establish prejudice, the defendant must establish that there is 

“a reasonable probability that the outcome would have been different but for counsel’s errors.” 

Id. at 486. “Effective assistance of counsel is presumed, and the defendant bears a heavy burden 

of proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). 

1. MOTION TO SUPPRESS FERGUSON’S IDENTIFICATION 

 First, defendant argues that defense counsel was ineffective for failing to file a motion to 

suppress Ferguson’s identification before trial because it violated his due process rights. As 

explained above, because law enforcement was not involved in Ferguson’s identification of 

defendant in the newspaper, and because there was an independent basis for the in-court 

identification that was untainted by any suggestive pretrial procedures, defense counsel’s 

objection to Ferguson’s trial identification would not have had merit, and counsel cannot be 

ineffective for failing to make this meritless argument. People v Collins, 298 Mich App 458, 

470; 828 NW2d 392 (2012). 

2. MOTION TO SUPPRESS DEFENDANT’S CONFESSION 

 Second, defendant argues that defense counsel was ineffective for failing to file a motion 

to suppress defendant’s confession because the confession was involuntary. “Statements of an 

accused made during custodial interrogation are inadmissible unless the accused voluntarily, 

knowingly, and intelligently waived his or her Fifth Amendment rights.” People v Gipson, 287 

Mich App 261, 264; 787 NW2d 126 (2010). Voluntariness is a totality of the circumstances 

analysis, which “consider[s] factors such as: the duration of the defendant’s detention and 

questioning; the age, education, intelligence, and experience of the defendant; whether there was 

unnecessary delay of the arraignment; the defendant’s mental and physical state; whether the 

defendant was threatened or abused; and any promises of leniency.” Id. at 264-265. Ultimately, 

“whether a waiver of Miranda[2] rights is voluntary depends on the absence of police coercion.” 

People v Daoud, 462 Mich 621, 635; 614 NW2d 152 (2000). “In contrast to the voluntary 

prong, determining whether a suspect’s waiver was knowing and intelligent requires an inquiry 

into the suspect’s level of understanding, irrespective of police behavior.” Id. at 636. “A very 

basic understanding of those rights is all that is necessary,” and “[i]ntoxication from alcohol or 

other substances can affect the validity of a waiver, but is not dispositive.” Gipson, 287 Mich 

App at 265. 

 Here, the interview lasted approximately two hours, defendant was 17 years old with an 

11th grade education, and he had a prior juvenile record with an adult conviction for unlawfully 

driving away a motor vehicle. On appeal, defendant argues that his statements were involuntary 

because (1) he was under the influence of various substances, (2) he was 17 years old, and (3) the 

interviewing officers “moved closer to him, suggesting threatening or coercive behavior.” 

 

2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 
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Defendant’s contention that the interviewing officers moved closer to defendant in a threatening 

or coercive manner is refuted by the record. Our review of the interview video indicates that the 

officers did not make any movements toward defendant in a threatening or coercive manner. In 

fact, the video of the interview demonstrates the opposite of a coercive or threatening 

environment: the officers spoke in a friendly tone, laughed, and did not question defendant in an 

intimidating manner. Further, defendant was offered water or pop during the interview, he was 

informed multiple times that he did not have to answer the questions, and he was not threatened. 

And, while defendant was 17 years old at the time of the interview, his age is only one of the 

relevant factors to be considered within the totality of the circumstances. See id. Defendant’s 

age is outweighed by other factors such as his experience with the police and the lack of threats 

from the police. 

 With respect to defendant’s claim that he was under the influence of various substances, 

Detective Peter Boterenbrood testified that defendant did not appear to be high in any way 

during the interview, that defendant did not have a glassy appearance in his eyes, and that 

defendant did not appear tired, exhausted, or “anything like that.” Similarly, Detective Kory 

Luker testified that, as a police officer, he observed people under the influence of narcotics 

numerous times, that one can often tell when someone is under the influence, and that defendant 

did not appear under the influence of narcotics in any way during the interview. Luker further 

testified that defendant’s eyes were not bloodshot or red, that defendant was not struggling to 

speak, that defendant did not appear to be lethargic, that defendant did not have difficulty 

walking in or out of the room, that defendant did not fall asleep, that defendant did not fall out of 

his chair, and that defendant was able to answer the questions coherently. Notably, near the end 

of the interview, defendant was asked whether he was under the influence of drugs or alcohol, 

and he responded, “No.” 

 Considering the totality of the circumstances based on the facts apparent from the record, 

there is nothing to suggest that defendant’s statements were the product of police coercion. Id. at 

264-265. Rather the record demonstrates that they were “the product of a free and deliberate 

choice rather than intimidation, coercion, or deception.” Id. Moreover, defendant was read his 

Miranda warnings, and he stated that he understood his Fifth Amendment rights. Therefore, 

defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights and a 

motion to suppress would have been meritless. Because counsel will not be rendered ineffective 

for failure to file a meritless motion, defendant was not denied the effective assistance of 

counsel. Collins, 298 Mich App at 470. 

3. COUNSEL’S FAILURE TO ASK CERTAIN QUESTIONS 

 Third, defendant “asserts that he asked counsel to ask certain questions during trial.” 

This argument invokes an issue of trial strategy as “[d]ecisions regarding what evidence to 

present and whether to call or question witnesses are presumed to be matters of trial strategy, and 

this Court will not substitute its judgment for that of counsel regarding matters of trial strategy.” 

People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). “[W]ith regard to trial strategy 

and tactics,” trial counsel has “great discretion in the trying of a case.” People v Pickens, 446 

Mich 298, 330; 521 NW2d 797 (1994). Further, defendant has not explained or indicated on 

appeal what questions he wanted defense counsel to ask. Accordingly, defendant has not 

overcome the presumption that defense counsel’s decisions regarding the questioning of 
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witnesses was sound trial strategy. Id. Counsel’s performance did not fall below an objective 

standard of reasonableness in this regard. 

4. COUNSEL’S FAILURE TO CALL ALIBI WITNESSES 

 Defendant lastly argues that counsel was ineffective for failing to call two alibi witnesses. 

With respect to this alleged deficiency, defendant’s affidavit attached to his brief on appeal states 

that he “asked [his] attorney to call [his] sister, Lynitra Quinn, as [his] alibi witness, but he did 

not” and that he “told [his] attorney James Marek that [he] had an alibi: Keith Washington and 

Lynitra Quinn.” As mentioned above, the decision to call a witness is presumed to be a matter of 

trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). The failure to 

call a witness only constitutes ineffective assistance of counsel if it deprives the defendant of a 

substantial defense. Id. A substantial defense is one that might have made a difference in the 

outcome of trial. In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). Assuming that 

defendant’s alibi witnesses exist and were willing to testify, defendant has not provided any 

affidavits from these proposed alibi witnesses regarding their proposed testimony. Because 

“[t]here is no evidence that the alibi witness[es] would have testified favorably,” Pickens, 446 

Mich at 371, defendant has not demonstrated he was denied a defense that might have made a 

difference in the outcome of trial. As such, defendant has not established ineffective assistance 

of counsel. Grant, 470 Mich at 485-486.3

 

C. SENTENCING 

 Finally, defendant argues that he is entitled to resentencing under Lockridge because the 

trial court engaged in impermissible judicial fact-finding in scoring OVs 3, 4, 7, and 13.4 Unlike 

in Lockridge, defendant preserved this issue through a motion to remand, see People v Terrell, 

312 Mich App 450, 464; 879 NW2d 294 (2015), thus we review his claims for harmless error. 

People v Stokes, 312 Mich App 181, 198; 877 NW2d 752 (2015). 

 The core holding of Lockridge is that the 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 . . . that mandatorily increase the floor of the guidelines 

minimum sentence range[.]” Lockridge, 498 Mich at 364. To remedy this constitutional 

violation, the Court severed MCL 769.34(2) to the extent that it makes the guidelines mandatory. 

Id. at 391. Although the guidelines are no longer mandatory, “they remain a highly relevant 

consideration in a trial court’s exercise of sentencing discretion” and thus the trial court must still 

score the guidelines and “consult the applicable guidelines range and take it into account when 

imposing a sentence.” Id. at 391. 

 

3

 We reject defendant’s alternative argument requesting a remand for a Ginther hearing because 

we previously denied defendant’s request for a remand. See People v Horn, 279 Mich App 31, 

38; 755 NW2d 212 (2008). 

4

 Defendant also argues that OVs 10 and 16 were also impermissibly scored by the use of 

judicial fact-finding. However, OVs 10 and 16 were assessed 0 points. 
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 With regard to OV 3, the trial court scored 10 points because it found that “[b]odily 

injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). Here, no portion 

of the jury’s verdict necessarily found that bodily injury requiring medical treatment occurred to 

a victim. Indeed, none of the elements needed to convict defendant of armed robbery, unlawful 

imprisonment, or felony-firearm established the scoring of OV 3. In addition, defendant did not 

admit that bodily injury requiring medical treatment occurred to a victim. While defendant 

admitted in the police interview and apology letter to beating Ferguson, defendant denied 

committing the offense and testified that his statements to the police and in the apology letter 

were false. Accordingly, the trial court’s score of OV 3 was based on facts that were neither 

found by the jury nor admitted by defendant. 

 Next, defendant argues, and the prosecution concedes, that OV 4 and OV 7 were 

improperly assessed 10 and 50 points respectively. OV 4 requires a finding that serious 

psychological injury requiring professional treatment occurred to a victim to support a score of 

10 points. MCL 777.34(1)(a). OV 7 is properly scored 50 points when a victim was treated with 

sadism, torture, excessive brutality or similarly egregious conduct designed to substantially 

increase the fear and anxiety a victim suffered during the offense. MCL 777.37(1)(a). The 

jury’s verdict is silent regarding whether psychological injury requiring professional treatment 

occurred to the victim or whether the victim was treated with sadism, torture, excessive brutality 

or similarly egregious conduct designed to substantially increase the fear and anxiety a victim 

suffered during the offense. In addition, defendant did not admit the facts necessary to support a 

scoring of OVs 4 and 7. Therefore, OVs 4 and 7 were scored based on judicially found facts. 

 Defendant also challenges the scoring of OV 13. The trial court assessed 25 points for 

OV 13, which requires a finding that “[t]he offense was part of a pattern of felonious criminal 

activity involving three or more crimes against a person.” MCL 777.43(1)(c). While armed 

robbery and unlawful imprisonment are crimes against a person, see MCL 777.16y and MCL 

777.16q, felony-firearm is not. Thus, three crimes against a person were not found by the jury. 

In addition, defendant did not admit to a third crime that constitutes a crime against a person. 

While defendant admitted to police officers that he committed an additional armed robbery that 

occurred at McCrea Park, defendant subsequently testified at trial that his statements to police 

officers were not true. Therefore, defendant did not admit to having committed a third crime 

against a person. Thus, the facts used to support the scoring of OV 13 were not admitted by 

defendant or found by the jury beyond a reasonable doubt. 

 It is clear that 95 out of the 130 points assessed for defendant’s OV score were assessed 

solely based on judicially found facts. Without judicial fact-finding, defendant’s OV score 

would have been 35 points, and the minimum range calculated under the sentencing guidelines 

range would have been 81 to 135 months instead of 171 to 285 months. See MCL 777.62; MCL 

777.68. Clearly, defendant’s minimum sentence range was altered by the Sixth Amendment 

violation, and defendant is entitled to a Crosby5

 remand. Lockridge, 498 Mich at 395-399;

Stokes, 312 Mich App at 198-199. 

 

5 United States v Crosby, 397 F3d 103 (CA 2, 2005). 
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[O]n a Crosby remand, a trial court should first allow a defendant an opportunity 

to inform the court that he or she will not seek resentencing. If notification is not 

received in a timely manner, the court (1) should obtain the views of counsel in 

some form, (2) may but is not required to hold a hearing on the matter, and (3) 

need not have the defendant present when it decides whether to resentence the 

defendant, but (4) must have the defendant present, as required by [MCR 6.425], 

if it decides to resentence the defendant. Further, in determining whether the 

court would have imposed a materially different sentence but for the 

unconstitutional constraint, the court should consider only the circumstances 

existing at the time of the original sentence. [Lockridge, 498 Mich at 398 

(quotation marks and citation omitted).] 

 We affirm defendant’s convictions and remand solely for further inquiry as to whether 

resentencing is required. We do not retain jurisdiction. 

/s/ Christopher M. Murray 

/s/ David H. Sawyer 

/s/ Patrick M. Meter