The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 15, 2021
Plaintiff-Appellee,
v No. 347406
Ingham Circuit Court
SHAWN FEAON PICKENS, LC No. 17-000404-FC
Defendant-Appellant.
Before: CAMERON, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree premeditated murder,
MCL 750.316(1)(a), assault with intent to murder, MCL 750.83, carrying a concealed weapon
(CCW), MCL 750.227, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. He was sentenced to life imprisonment for the murder conviction, 375
to 700 months’ imprisonment for the assault conviction, 24 to 60 months’ imprisonment for the
CCW conviction, and 24 months’ imprisonment for the felony-firearm conviction. Finding no
errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant’s convictions arose from his entry into a crowded barbershop where he shot and
killed a barbershop patron seated on a window ledge and shot another patron near the intended
victim. The victim was able to fire his own weapon back at defendant, injuring him. When
defendant shot the victim, he stood in front of a woman also seated on the ledge, and she identified
him at trial as the shooter. Defendant fled the scene in a burgundy Bonneville or Grand Prix, but
was dropped off at the hospital by the driver of a white Mercury Mountaineer. At the hospital, he
declined to tell police the location of his shooting and to provide any identification of the shooter.
The police were given his clothing and cell phone by hospital personnel. The prosecutor presented
direct eyewitness testimony to support defendant’s identification as the perpetrator, and defendant
was convicted as charged.
II. PROSECUTORIAL MISCONDUCT
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Defendant alleges that he was deprived of a fair trial when the prosecutor knowingly
presented false identification testimony from the key eyewitness to the shooting. We disagree.
To preserve a claim of prosecutorial misconduct, there must be a contemporaneous
objection and a request for a curative instruction. People v Solloway, 316 Mich App 174, 201; 891
NW2d 255 (2016). Although defendant moved for a directed verdict by questioning the
eyewitness testimony, he did not allege that the prosecutor deliberately presented false testimony,
and no curative instruction was given. When prosecutorial statements are not challenged with
contemporaneous objections and requests for curative instructions, this Court reviews the
unpreserved issue for plain error affecting the defendant’s substantial rights. Id. at 201-202.
“To establish entitlement to relief under plain-error review, the defendant must establish
that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected
substantial rights.” People v Lockridge, 498 Mich 358, 392-393; 870 NW2d 502 (2015). The
requirement that the error was plain generally requires a showing of prejudice such that the error
affected the outcome of the lower court proceedings. Id. Even if the plain error criteria are
satisfied, the appellate court must exercise discretion in determining if reversal is warranted. Id.
“Reversal is warranted only when the error resulted in the conviction of an actually innocent
defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings
independently of the defendant’s innocence.” Id. Defendant failed to show plain error affecting
his substantial rights.
Prosecutorial misconduct1 issues are evaluated on a case-by-case basis. People v Mullins,
322 Mich App 151, 172; 911 NW2d 201 (2017). To obtain relief for a claim of prosecutorial
misconduct, a defendant must demonstrate that he was denied a fair trial. People v Bosca, 310
Mich App 1, 26; 871 NW2d 307 (2015). When a claim of misconduct is premised on a
prosecutor’s statements, the remarks must be examined in context to determine if the defendant
was denied a fair and impartial trial. Mullins, 322 Mich App at 172. The statements must be
assessed in light of the defense arguments and the relationship between the comments and the
evidence presented at trial. Id. With regard to argument, the prosecutor has great latitude and is
free to argue the evidence and all reasonable inferences arising from the evidence as it relates to
the theory of the case. Id.
A claim of prosecutorial misconduct cannot be premised on a good-faith effort to admit
evidence because the prosecutor may seek to introduce evidence that he legitimately believes will
be admitted by the court. People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999).
Pursuant to their constitutional obligations of due process and fundamental fairness, prosecutors
must report to the trial court and the defendant when government witnesses lie under oath. People
v Herndon, 246 Mich App 371, 417; 633 NW2d 376 (2001). “[T]he prosecutor may not knowingly
1
Although defendant characterizes the prosecutor’s questions and statements as misconduct, this
Court recently explained that a fairer label for most claims of prosecutorial misconduct would be
“prosecutorial error,” because only the most extreme and rare cases rise to the level of
“prosecutorial misconduct.” People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015).
However, we will use the phrase “prosecutorial misconduct” because it has become a term of art
in criminal appeals. Id.
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use false testimony to obtain a conviction and . . . a prosecutor has a duty to correct false evidence.”
Id.
Contrary to the defense assertion, there is no indication in the record that eyewitness
Yemora Williams testified falsely. A conflict between a witness’s description of an assailant and
other relevant evidence presents an issue for resolution by the jury. See People v Savage, 327
Mich App 604, 614; 935 NW2d 69 (2019). This Court must defer to the jury’s role in determining
the weight of the evidence and the credibility of the witnesses, and we resolve conflicts in the
evidence in favor of the prosecution. Id. The jury may believe or disbelieve, in whole or in part,
the evidence admitted at trial. People v Unger, 278 Mich App 210, 228; 749 NW2d 272 (2008).
That is, the trier of fact has the right to disregard all, part, or none of the testimony of a witness.
See People v Goodchild, 68 Mich App 226, 235; 242 NW2d 465 (1976). Thus, this Court will not
weigh the competing evidence because the jury had the special opportunity to do so while assessing
the credibility of the witnesses that appeared before it. Unger, 278 Mich App at 228-229.
The jury did not find, and we have no reason to conclude, that Williams testified falsely.
More importantly, there is no indication in the record that even if Williams did testify falsely, that
the prosecutor knew she would not testify truthfully. See Herndon, 246 Mich App at 417.
Williams testified that she brought her son to the barbershop and was seated on the ledge closest
to the door with her son next to her. A man entered the barbershop, and her view was at his waist
level because of her seated position. The man reached into his pants, and Williams was about to
admonish him for his inappropriate conduct when he pulled a gun and began firing. Williams
testified that she pushed her son behind her and leaned away from the gun. She could hear return
gunfire. Williams was able to describe defendant’s appearance. Although she may have
contradicted defendant’s race or skin-tone between her statements and 911 call, Williams
expressed that she could identify defendant because of his eyes.
When examined in light of testimony from other witnesses, Williams appeared to be
mistaken that, after defendant left the barbershop, he approached her for a ride to the hospital.
Williams testified that defendant left the barbershop before her and then paused at a wall.
However, she went in the opposite direction, lived by the “street code” that what occurred was
none of her business, and had a criminal history in her past that she attributed to drug and alcohol
use. She had no intention of testifying and was surprised when the police were able to contact her
from her 911 call. However, Williams changed her mind when she was contacted by her niece
who knew the victim’s family. Williams recognized that her statements regarding the skin-tone
of defendant varied, but explained that she was emotional and excited after the shooting when she
made her 911 call.
Williams may have believed that defendant followed her to her car and requested a ride,
but Francoise Bigelow left the barbershop with her son after his hair was cut. She was parked
directly in front of the barbershop when she heard popping sounds and saw the window of the
barbershop vibrating. She told her son to leave the passenger side of the car and come to her at
the driver’s side. She saw a man exit the barbershop carrying a silver gun. Bigelow did not see
this man follow Williams to the parking lot and request a ride. Rather, she saw him proceed to
and enter a waiting vehicle, and the vehicle sped off.
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Similarly, Jordin Ward was in his vehicle, stopped at a traffic light near the barbershop
when he heard 12 to 15 “pops” that sounded like fireworks. Ward saw a man run from the
barbershop with a chrome color gun in his hand and jump into the passenger side of a burgundy
Bonneville or Grand Prix, which was in the driveway on the side of the building, but then sped off.
Ward then witnessed multiple people come out of the barbershop, including an older woman and
child. A white male, Isiah Naranjo-Gale (Gale), was shot and bleeding, banged on Ward’s
passenger window, and stated, “Call 911.” Accordingly, Ward testified consistently with Bigelow,
that defendant left the barbershop carrying his silver gun in his hand and fled in a waiting vehicle.
Thus, when Williams was approached by a man in the parking lot, she identified defendant, but it
was presumably Gale because defendant immediately left the scene according to Ward and
Bigelow.
However, a conflict in the evidence between the testimony of Williams, Bigelow, and Ward
required the jury to evaluate the credibility of the witnesses, and the jury was not required to
believe all of the testimony offered by Williams. Rather, in accordance with the criminal jury
instructions, M Crim JI 2.6 entitled Judging Credibility and Weight of Evidence, the jury does “not
have to accept or reject everything a witness says,” but is “free to believe all, none, or part of any
person’s testimony.” See also Unger, 278 Mich App at 228; Goodchild, 68 Mich App at 235. The
jury was entitled to conclude that Williams positively identified defendant as the shooter in light
of the fact that he stopped immediately in front of her, pulled a gun, and began firing. Williams
was able to advise that the victim returned gunfire in light of the sound of the exchange occurring
from another area of the room. Moreover, Williams explained her history and indicated why she
would be mistaken as to the identification of defendant approaching her instead of Gale. Williams
lived by a “street code,” had a criminal past, and had no intention of testifying at trial. However,
after being contacted by her niece and empathizing that the victim was a son to a mother, Williams
agreed to come forward. Thus, the jury was entitled to give credence to the identification by
Williams that defendant was the barbershop shooter. Despite defendant’s assertion, a mistake by
Williams regarding who approached her in the parking lot (as indicated by the testimony of
Bigelow and Ward) does not equate with the prosecutor presenting false or perjured testimony.
The jury was able to account for witness mistakes in testimony because jurors need not accept all
of it in order to find a witness credible. Defendant failed to establish plain error affecting his
substantial rights.
III. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that there was insufficient evidence of his identification2 as the
barbershop shooter to support his convictions and sentences. We disagree.
A challenge to the sufficiency of the evidence is reviewed de novo. People v Thorne, 322
Mich App 340, 344; 912 NW2d 560 (2017). The evidence is examined in a light most favorable
to the prosecution to determine whether a rational trier of fact could conclude that the prosecutor
proved the elements of the crime beyond a reasonable doubt. People v Miller, 326 Mich App 719,
735; 929 NW2d 821 (2019). “Conflicting evidence and disputed facts are to be resolved by the
2
Defendant does not protest the sufficiency of each element of his convicted offenses, but rather,
solely challenges his identification. Therefore, our analysis of this issue is similarly limited.
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trier of fact.” Id. The credibility of identification testimony presents a question for the jury that
this Court does not resolve anew. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).
“[P]ositive identification by witnesses may be sufficient to support a conviction of a crime.” Id.
There was sufficient evidence to support defendant’s identification as the barbershop
shooter and, in turn, his convictions. Williams expressly testified that she was seated on the
window ledge of the barbershop when defendant entered. He stood in front of her and pulled a
gun from his pants and began firing. Although Williams initially believed that defendant wore a
mask, at trial, she testified that she believed it was his hoodie. Williams admittedly gave various
descriptions of defendant’s skin-tone to the 911 operator and the police. However, she expressed
with certainty, by his eyes, that defendant was the shooter.
Indeed, cell phone data placed defendant in the area of the barbershop. Because the
barbershop was located near the home of defendant’s employer it was equally plausible that the
tracking data reflected his presence at that home. However, the individual who drove defendant
to the hospital testified that defendant told her he was shot in the barbershop, albeit without
admitting that he was the shooter. Conflicts in the evidence and credibility determinations were
for the trier of fact to resolve. Unger, 278 Mich App at 228-299.
Finally, Williams testified that defendant was shot in the side when he left the barbershop,
and he appeared at the hospital with a gunshot wound to his left abdomen. The jury found by its
verdict that the identification by Williams coupled with the circumstantial evidence of defendant’s
injury and his phone records was proof beyond a reasonable doubt that defendant entered the
barbershop, killed the victim, assaulted nearby bystander Gale by shooting him, and did so contrary
to Michigan’s firearm statutes. Viewing the evidence in the light most favorable to the prosecution
and in light of the jury’s assessment of the credibility of the witnesses, there was sufficient
evidence for the jury to find defendant’s identification as the barbershop shooter.
IV. SEARCH AND SEIZURE
Defendant next contends that the trial court improperly admitted cell phone data3 that was
obtained as a result of an unreasonable and unconstitutional search. We disagree.
3
Defendant’s statement of the issue refers solely to cell phone data. Furthermore, he does not
distinguish between whether the information was recovered from defendant’s actual cell phone or
whether the data itself was recovered through a court order directed to defendant’s cell phone
carrier. Additionally, in the discussion of the issue, defendant contends that the police improperly
obtained his cell phone, clothing, and wallet without a search warrant. An issue is not properly
presented for review because it has not been raised in the statement of questions presented, Unger,
278 Mich App at 262, and the statement of the issue does not address the wallet or clothing.
Despite the disparity in the presentation, defendant failed to demonstrate plain error regardless of
the item recovered by the police.
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This issue was not raised in the trial court, and therefore, it is unpreserved. Solloway, 316
Mich App at 197. Unpreserved claims of constitutional error are reviewed for plain error. People
v Burger, 331 Mich App 504, 516; 953 NW2d 424 (2020).
Defendant failed to demonstrate plain error affecting his substantial rights. The Fourth
Amendment protects people instead of places and things. People v Antwine, 293 Mich App 192,
195; 809 NW2d 439 (2011). For purposes of the Fourth Amendment, a search occurs when there
is a government intrusion on an individual’s reasonable or justifiable expectation of privacy. Id.
Recently, in People v Madhi, 317 Mich App 446, 457-458; 894 NW2d 732 (2016), this Court
summarized the law governing search and seizure:
The United States and Michigan Constitutions protect against unreasonable
searches and seizures. US Const, Am IV; Const 1963, art 1, section 11. The Fourth
Amendment to the United States Constitution provides, “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” The corresponding
provision of the Michigan Constitution provides, in part, “The person, houses,
papers and possessions of every person shall be secure from unreasonable searches
and seizures.” Const 1963, art 1, section 11. Whether a search or a seizure is lawful
depends on whether it is reasonable. People v Nguyen, 305 Mich App 740, 751;
854 NW2d 223 (2014). Therefore, “a search for purposes of the Fourth
Amendment occurs when the government intrudes on an individual’s reasonable,
or justifiable, expectation of privacy.” People v Antwine, 293 Mich App 192, 195;
809 NW2d 439 (2011) (citation and quotation marks omitted).
“In general a search conducted without both a warrant and probable cause
to believe evidence of wrongdoing might be located at the place searched are
unreasonable per se.” Lavigne v Forshee, 307 Mich App 530, 537; 861 NW2d 635
(2014). “And, generally, when evidence has been seized in violation of the
constitutional prohibition against unreasonable searches and seizures, it must be
excluded from trial.” People v Chowdhury, 285 Mich App 509, 516; 775 NW2d
845 (2009) (citations and quotation marks omitted).
To determine if an individual had a reasonable expectation of privacy, there must be an
examination of whether the individual exhibited an actual subjective expectation of privacy and
whether the actual expectation is one that society recognizes as reasonable. Antwine, 293 Mich
App at 195. However, what a person knowingly exposes to the public is not given Fourth
Amendment protection. People v Lillis, 181 Mich App 315, 318; 448 NW2d 818 (1989), citing
Katz v United States, 489 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967).
However, there are exceptions to the warrant requirement that include: (1) searches
incident to arrest, (2) automobile searches and seizures, (3) plain view seizure, (4) consent, (5)
stop and frisk, and (6) exigent circumstances. People v Davis, 442 Mich 1, 10; 497 NW2d 910
(1993). Additionally, when the police are providing emergency aid or community caretaking, the
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police are generally not searching for evidence of a crime, but for someone in need of assistance,
and therefore, this may serve as an exception. Id. at 11-12.
When a defendant moves for suppression of evidence by alleging that it was illegally
obtained, the prosecutor bears the burden of showing that the search and seizure was justified by
an exception to the warrant requirement. People v Jordan, 187 Mich App 582, 589; 468 NW2d
294 (1991). In Jordan, the victim was using an automatic teller machine at a local bank branch
when the defendant attempted to rob him at gunpoint. The victim was also armed and thwarted
the attempted robbery by shooting the defendant first. The defendant was driven from the scene
by an accomplice and taken to the local hospital. He was in surgery when a police officer arrived.
The officer requested defendant’s clothing, and the hospital staff gave it to him. The officer had
to physically open the bag to determine that he was given the defendant’s clothing. Id. at 584-585.
Before trial, defense counsel moved to suppress the clothing because it was obtained without a
search warrant, but the motion was denied. Id. at 585.
On appeal, this Court concluded that there was no evidence that defendant intended to
abandon his clothing, and the hospital possessed the clothing as a bailee. Thus, it was their duty
to safeguard it. Id. at 592. This Court concluded that the trial court clearly erred in denying the
motion to suppress. However, it went on to conclude that the admission of the evidence was
harmless error, stating:
A two-tiered analysis is used in determining whether an error concerning
the erroneous admission of evidence is harmless. First, it must be determined
whether the error is so offensive to the maintenance of a sound judicial system that
it can never be regarded as harmless and, second, whether the error was harmless
beyond a reasonable doubt so that not even one juror, or, in the event of a bench
trial, the judge, would have voted to acquit the defendant but for the error. People
v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). The first criterion is
intended to deter prosecutorial and police misconduct, while the second is intended
to safeguard the decisional process. People v Furman, 158 Mich App 302, 317;
404 NW2d 246 (1987). An error may be intolerably offensive to the maintenance
of a sound judicial system if it was deliberately injected into the proceedings by the
prosecution, if it deprived the defendant of a fundamental element of the adversarial
process, or if it is of a particularly inflammatory or persuasive kind. Id., p 318.
Upon review of the record, we believe that, even if the evidence had been
excluded, it is unlikely defendant would have been acquitted in light of the victim’s
positive and independent identification of defendant, which was based on his
physical appearance and not on the clothing he was wearing at the time of the
assault. We also believe that defendant’s misidentification defense had little chance
of success when he was hospitalized for several weeks recuperating from a gunshot
wound. He was positively identified by [the victim] and had the bullet wound to
prove it. Moreover, it cannot be said that the error was deliberately injected into
the trial by the prosecutor, but rather occurred as a result of the court’s pretrial
ruling that the evidence was admissible. Considering there was no Michigan case
law on point and that only four other states had addressed the issue, it can hardly
be said that the error was knowing or purposeful. [Id. at 593-594.]
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Applying the above caselaw to the present factual scenario, we conclude that the facts and
circumstances of the police officer’s retrieval of the clothing from the hospital was not thoroughly
addressed because the issue of suppression of this evidence was not raised in the trial court. Thus,
it cannot be determined that an exception, such as exigent circumstances, applied to the retrieval
of the clothing and cellular telephone.
However, defendant fails to explain how the failure to obtain a warrant for the items harmed
him. Indeed, defendant’s arrival at the hospital was preserved on video. Thus, it was known that
he was dropped off at the hospital by an individual driving a Mercury Mountaineer, and the clothes
that he wore were shown when he entered the hospital. Furthermore, the location of defendant’s
injury was testified to by patrons of the barbershop. Additionally, his sweatshirt was left at his
employer’s home. To the extent that the articles of clothing demonstrated that defendant was
injured by a gunshot, this was cumulative to the admission of defendant’s medical records at trial.
Finally, although defendant contests the data obtained from his cell phone, the prosecutor notes
that the crucial data evidence was obtained directly from the cell phone carrier, and not removed
from the physical phone.
Although a motion to suppress was not filed in the lower court and an analysis of potential
exceptions to the warrant requirement could not be addressed because of a cursory record
pertaining to the retrieval of defendant’s items, we conclude that the admission of this evidence
was harmless error. The articles of clothing and the physical cell phone itself were not the pivotal
evidence that secured defendant’s convictions. Rather, the identification by Williams as the
shooter, the testimony that the victim fired his weapon back at his assailant, the testimony by
eyewitnesses that defendant was injured as he fled the barbershop and bled from his side,
defendant’s presence at his employer’s home shortly after the shooting and the home’s proximity
to the barbershop (regardless of any cell phone data), the vehicle and defendant’s arrival at the
hospital that preserved on video his clothing, and defendant’s need for medical treatment for a
gunshot wound were the key pieces of evidence that resulted in defendant’s convictions. In light
of the opinion that the admission of the clothing and the cell phone were harmless error, defendant
cannot show plain error affecting his substantial rights. Accordingly, this issue does not entitle
defendant to appellate relief.
V. COURT ORDERED CELL PHONE RECORDS
Defendant submits that the cell phone records should have been suppressed because they
were obtained pursuant to a court order instead of a search warrant. We disagree.
A trial court’s factual findings following a suppression hearing are reviewed for clear error.
People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). However, if the trial court’s ruling
presents a question of law or the application of a constitutional standard to undisputed facts,
appellate review is de novo. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014).
During trial, defendant moved to suppress the phone records, citing Carpenter v United
States, ___ US ___, ___; 138 S Ct 2206; 201 L Ed 2d 507 (2018) for the proposition that a search
warrant was required to obtain cell tower call detail records, and a petition was no longer adequate
authorization for the records. However, defense counsel noted that the cell phone records were
obtained a year before the Carpenter decision was rendered, and there was a good-faith exception
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to the decision. Consequently, defendant brought the motion to “preserve it for the record.” In
turn, the prosecutor argued that there was no binding precedent holding that the Carpenter decision
had retroactive application. Further, it was alleged that a good-faith exception applied because the
police relied on the law that existed at the time the records were obtained. The trial court held that
the petition seeking the records essentially constituted a search warrant because a reasonable
suspicion and probable cause had to be established, the court order was an appropriate manner to
obtain the information at the time it was sought, the change in the law had not been given
retroactive application, and the police acted in good-faith by obtaining the court order.
Consequently, the trial court denied the motion to suppress.
Applying the Carpenter decision, we affirm the trial court’s ruling. In Carpenter, police
officers arrested four men suspected of robbing stores in Detroit. One of the men, petitioner
Carpenter, admitted that the group included lookouts and getaway drivers and had robbed nine
different stores. He also provided the cell phone numbers of different accomplices to the crimes.
The FBI used the petitioner’s cell phone records to identify other phone numbers called in
proximity to the robberies. The prosecutors applied for court orders under the Stored
Communication Act (SCA), 18 USC 2703(d), to obtain cell phone records for the petitioner and
several other suspects. The provision of the SCA allowed the government to compel the disclosure
of certain telecommunications records when specific articulable facts were offered to demonstrate
reasonable grounds to believe that the records were relevant and material to an ongoing criminal
investigation. See 18 USC 2703(d).
After the petitioner was charged with six counts of robbery and firearm offenses, he moved
to suppress the cell-phone data provided by his wireless phone carriers, asserting that the failure
to obtain a search warrant to seize the phone records violated the Fourth Amendment. The trial
court denied the motion, and the Sixth Circuit affirmed. The Supreme Court concluded that the
acquisition of the records constituted a search, stating: “[W]e hold that an individual maintains a
legitimate expectation of privacy in the record of his physical movements as captured through
CSLI [cell phone data].” It went on to state:
Having found that the acquisition of Carpenter’s CSLI was a search, we also
conclude that the Government must generally obtain a warrant supported by
probable cause before acquiring such records. Although the “ultimate measure of
the constitutionality of a government search is ‘reasonableness,’ ” our cases
establish that warrantless searches are typically unreasonable where “a search is
undertaken by law enforcement officials to discover evidence of criminal
wrongdoing.” Thus, “[i]n the absence of a warrant, a search is reasonable only
if it falls within a specific exception to the warrant requirement.”
The Government acquired the cell-site records pursuant to a court order
issued under the Stored Communications Act, which required the Government to
show “reasonable grounds” for believing that the records were “relevant and
material to an ongoing investigation.” That showing falls well short of the probable
cause required for a warrant. The Court usually requires “some quantum of
individualized suspicion” before a search or seizure may take place. Under the
standard in the Stored Communications Act, however, law enforcement need only
show that the cell-site evidence might be pertinent to an ongoing investigation-a
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“gigantic” departure from the probable cause rule, as the Government explained
below. Consequently, an order issued under [18 USC 2703(d)] of the Act is not a
permissible mechanism for accessing historical cell-site records. Before
compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s
obligation is a familiar one – get a warrant. [Citations omitted; emphasis added.]
Thus, regardless of whether the Carpenter decision may be applied retroactively or whether the
process for obtaining an order under the SCA was akin to the information submitted to obtain a
search warrant, the Supreme Court held that in the absence of a search warrant, an exception to
the warrant requirement may be examined and applied. Id.
“The ‘good-faith’ exception renders evidence seized pursuant to an invalid search warrant
admissible as substantive evidence in criminal proceedings where the police acted in reasonable
reliance on a presumptively valid search warrant that was later declared invalid.” People v
Hellstrom, 264 Mich App 187, 193; 690 NW2d 293 (2004). Thus, unless it was established that
the magistrate abandoned his neutral and detached role, “suppression is appropriate only if the
officers were dishonest or reckless in preparing their affidavit or could not have harbored an
objectively reasonable belief in the existence of probable cause.” Id. at 198.
In the present case, there was no allegation that the police submitted false information to
obtain the court order under the SCA. Rather, it appeared that it was a matter of police practice to
utilize the SCA in lieu of obtaining a warrant. Further, there was no evidence that the police
deliberately utilized the SCA because they did not have an objectively reasonable belief in the
existence of probable cause. Consequently, the trial court did not err in denying defendant’s
motion to suppress. Although the police investigation obtained the cell phone records in light of
the SCA, the good-faith exception precluded the suppression of evidence because the police acted
in reasonable reliance on the court order secured through the SCA. This claim of error does not
entitle defendant to appellate relief.
VI. EFFECTIVE ASSISTANCE
A. EXPERT TESTIMONY
Defendant first alleges that trial counsel was ineffective for stipulating to allow lay
witness Megan Johnston to provide cell phone data testimony because her testimony exceeded
the scope of lay testimony, she was not qualified as an expert, and the jury instruction failed to
advise the jury regarding the weight to give her “opinion.” We disagree.
To preserve a claim of ineffective assistance of counsel, defendant must request a new
trial or an evidentiary hearing in the trial court. People v Head, 323 Mich App 526, 538-539; 917
NW2d 752 (2018). Although an evidentiary hearing was conducted addressing defendant’s alibi
defense, this claim of error was not raised in the trial court or in a motion to this Court.
Consequently, this issue is unpreserved.
“Whether a defendant received ineffective assistance of trial counsel presents a mixed
question of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011). This Court reviews a trial court’s factual findings for clear error and its conclusions of
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law de novo. People v Miller, 326 Mich App 719, 726; 929 NW2d 821 (2019). When no Ginther4
hearing is held in the trial court, appellate review is limited to mistakes apparent on the record. Id.
“Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions.” People v Schrauben, 314 Mich App 181, 189-190; 886 NW2d
173 (2016). To obtain a new trial premised on ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of reasonableness and
that there is a reasonable probability that but for counsel’s errors, the result of the proceeding
would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012). It is
presumed that defense counsel was effective, and a defendant must overcome the strong
presumption that counsel’s performance was sound trial strategy. People v Trakhtenberg, 493
Mich 38, 52; 826 NW2d 136 (2012). “[D]ecisions regarding what evidence to present and which
witnesses to call are presumed to be matters of trial strategy, and we will not second-guess strategic
decisions with the benefit of hindsight.” People v Dunigan, 299 Mich App 579, 589-590; 831
NW2d 243 (2013). “Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010). “The fact that defense counsel’s strategy may not have worked does not
constitute ineffective assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996). However, counsel may be found ineffective for the strategy employed
when it is not a sound or reasonable strategy. People v Dalesandro, 165 Mich App 569, 577-578;
419 NW2d 609 (1988). The burden of establishing the factual predicate for a claim of ineffective
assistance is on the defendant. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Megan Johnston, a crime analyst with the Lansing Police Department, testified that she
took phone records from a company and used “various programs” to examine communication and
tower data. After delineating her two-day course training and basic knowledge, Johnston testified
that she used a program to detail call records and their origination location. She delineated
defendant’s calls in proximity to the shooting in a listing, and she color coded the most frequent
contacts. She also created a map of defendant’s cell phone calls and identified a tower in proximity
to the barbershop. In the time period following the shooting, Johnston identified the sectors on the
map of where defendant’s phone was connecting to cell phone towers.
On cross-examination, Johnston admitted that her training was a basic level course, and
she had not completed advanced month-long training. Additionally, she could only identify that
defendant’s phone number made various calls, but not that he placed them. She further admitted
that the cell phone towers varied in a particular location, and the phone did not necessarily “hit”
the closest tower. She also acknowledged that the cell phone “hit” did not reflect whether the
phone was a block away or a mile away from the tower.
Under the circumstances, defendant failed to meet the factual predicate for the claim of
ineffective assistance of counsel. The decision to stipulate that Johnston was merely a lay as
opposed to an expert witness seemingly reflected defense counsel’s questioning of Johnston’s
qualifications. He noted that she merely completed a basic two-day course, and there was more
extensive training that she had not completed. Additionally, defense counsel’s questioning led to
4
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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Johnston’s admission that cell phones did not necessarily “hit” the closest towers and that the
distance between the phone and the towers could be a block or a mile. Thus, regardless of whether
Johnston was labeled a lay or expert witness, defense counsel obtained admissions regarding the
deficiencies in cell phone analysis. Furthermore, there was evidence that defendant went to his
employer’s home after he was shot, and the home was within two blocks or walking distance of
the barbershop. Thus, the defense did not dispute that defendant was in the area of the barbershop
in proximity to the timing of the shooting, but offered the alternative explanation that it was
because his employer lived in the area, not to commit the shooting. Whether Johnston was
classified as a lay or an expert witness had no bearing on the fact that the evidence demonstrated
that defendant was in the area of the barbershop, although he submitted it was for an entirely valid
reason. Thus, a clarifying jury instruction regarding the nature of this testimony was unnecessary.
This claim of error is simply not a mistake apparent on the record and does not entitle defendant
to appellate relief.
B. RETAIN AN EXPERT, OBJECTION TO EVIDENCE AND FALSE IDENTIFICATION
To preserve a claim of ineffective assistance of counsel, defendant must request a new trial
or an evidentiary hearing in the trial court. Head, 323 Mich App at 538-539. Although an
evidentiary hearing was conducted addressing defendant’s alibi defense, these challenges were not
raised in the trial court or in a motion to this Court. Consequently, these alleged errors are
unpreserved.
In part A of this issue, defendant alleged that trial counsel was ineffective for stipulating
to allow Johnston to provide lay testimony on cell phone data and mapping. However, it was
undisputed that defendant was in the area of the shooting because he was at his employer’s home,
a legitimate reason. In this claim, defendant contends that trial counsel was ineffective for failing
to retain his own expert in cell phone analysis. However, on appeal, defendant fails to present an
affidavit or other documentary evidence from an expert that his opinion would have contradicted
Johnston’s testimony. More importantly, in light of the testimony that defendant was at his
employer’s home and it was located within walking distance of the barbershop, it is unclear what
benefit defendant’s own retained expert would have offered or that he could have countered
Johnston’s testimony.
Additionally, defendant contends that it was error to fail to object to the seizure of his
clothing, his wallet, and his cell phone from the hospital. Indeed, defense counsel did not move to
suppress defendant’s clothing or his wallet. However, defendant’s clothing was captured on the
hospital’s video recording system when he was dropped off at the hospital. Thus, even if the
clothing had been suppressed, the eyewitness testimony regarding what defendant was wearing
could have been compared to the video recording preserved by the hospital. Although defendant
notes that his wallet was seized at the hospital, he fails to argue any admission or evidentiary
citation at trial that should have been excluded. Finally, defense counsel did move for suppression
of the cell phone from trial, citing the change in the law premised on the Carpenter decision.
However, the trial court denied this motion, and we concluded that the cell phone data was properly
admitted pursuant to the good-faith exception, regardless of Carpenter.
Finally, as concluded in subsection II of this opinion, there was no evidence that the
prosecutor knowingly presented false testimony or that Williams committed perjury. Rather, the
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shooting occurred directly in front of Williams, and she testified that could identify defendant from
his eyes because he fired his weapon directly in front of her. Although Williams may have been
mistaken that defendant asked her for a ride to the hospital in light of the testimony from Bigelow
and Ward, the jury was entitled to believe all, part, or none of her testimony. Contradictory
testimony did not reflect that Williams’s testimony was false or that she committed perjury or that
the prosecutor knowingly presented false testimony. Thus, defendant failed to meet the burden of
demonstrating mistakes apparent on the record. Accordingly, in turn, it cannot be concluded that
counsel’s performance fell below an objective standard of reasonableness and that, but for the
alleged errors, the result of the proceeding would have been different.
VII. NEW TRIAL
Lastly, defendant alleges that the trial court erred in failing to order a new trial following
this Court’s remand order for a Ginther hearing to address trial counsel’s failure to investigate and
raise an alibi defense.5 We disagree.
“Whether a defendant received ineffective assistance of trial counsel presents a mixed
question of fact and constitutional law.” Armstrong, 490 Mich at 289. This Court reviews a trial
court’s factual findings for clear error and its conclusions of law de novo. Miller, 326 Mich App
at 726.
Peter Watkins authored the letter that asserted defendant was shot when a drug deal
between defendant, Watkins, and “Breezy,” essentially went “bad.” However, trial counsel did
not call Watkins as a witness at trial. When appellate counsel called Watkins to the stand at the
Ginther hearing, Watkins advised the court that, “I’m not about to testify.” Indeed, Watkins
acknowledged the content of the letter, but declined to confirm its authenticity, repeatedly advising
that he could not remember. On cross-examination, Watkins declined to even confirm that he
authored the letter and continued to answer any questions with, “I don’t know” or “I don’t
remember.” If called to testify at defendant’s trial, Watkins would have simply stated that he could
not remember whether he was with defendant on the day of the shooting and to any other details.
Watkins even failed to remember what he did the day before or after the barbershop shooting.
Defendant’s trial counsel, Henry Scharg, testified that, shortly before trial, defendant
presented the letter prepared by Watkins claiming that defendant was shot in the park during a
drug deal. Scharg did not have the resources for an investigator to interview Watkins because
defendant’s family had exhausted their finances. However, Scharg now believed that he should
have contacted Watkins’s lawyer to determine consent for an interview. Yet, Scharg testified that
the alibi theory was inconsistent with the theory being pursued, and he urged defendant to abandon
the alibi although they continued to discuss the issue between 2 and 5 times, including at trial.
Because of the lack of defendant’s blood present at the crime scene and the eyewitness testimony
that the victim shot his assailant (i.e., Gale), it was best to pursue the theory that defendant was
shot elsewhere. Scharg also opined that the alibi provided by Watkins was not supported by the
phone records and exploring the phone records was a “waste of my resources.” Scharg did not ask
5
People v Pickens, unpublished order of the Court of Appeals entered December 13, 2019 (Docket
No. 437406).
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defendant where he was shot until shortly before trial, and defendant then provided the alibi
defense. However, Scharg believed that he looked for a phone call from Watkins in the phone
records.
Defendant and Scharg had “rolling” conversations about the alibi defense, but Scharg
deemed it to be a “defense of last resort” because it was not generally successful unless there was
independent written evidence to support it. Scharg believed that it was more effective to assert
that defendant was shot elsewhere than to claim that he was shot during a drug deal as corroborated
by Watkins, an individual defendant met in jail. The late receipt of the alibi letter was also a
concern. Although in retrospect Scharg believed that he should have investigated the alibi defense,
he opined that it would not have made a difference in the outcome, but simply demonstrated that
all possibilities were exhausted.
The trial court denied defendant’s motion for a new trial in a written opinion. The trial
court found that “the failure to pursue the alibi defense did not deny Defendant a substantial
defense because the alibi was completely inconsistent with the overwhelming evidence. Trial
counsel elected to pursue a strategy that was, in actuality, consistent with the realities of the case
rather than pursue an alibi that risked substantial scrutiny in the eyes of the jury.” The trial court
concluded:
Ultimately, the Court sees with convincing clarity that trial counsel could
not present a defense that was almost certainly fabricated, or at a minimum, was
entirely inconsistent with the evidence and trial counsel’s reasoned strategy. There
was no specific evidence to support that Defendant was shot in an unrelated
incident. Accordingly, trial counsel did what he could and supported the theory
with circumstantial evidence. Trial counsel should have conducted a minimum
investigation by interviewing Mr. Watkins; however, given trial counsel’s
extensive experience and his testimony pertaining to his overall strategy, this Court
does not believe the omission rises to the level of ineffective assistance of counsel.
The jury convicted Defendant because of the overwhelming evidence of his guilt,
not because trial counsel was ineffective.
In light of the record and the trial court’s factual findings and conclusions of law, we
conclude that the trial court did not err in denying the motion for new trial. Although the trial
court found that Scharg should have conducted an investigation of the alibi offered by Watkins,
the trial court concluded that it did not constitute ineffective assistance in light of Scharg’s
experience as a defense attorney and his trial strategy.
Scharg acknowledged that he was given the Watkins letter before trial. However, Watkins
met defendant in jail when they were housed in the same pod for a lengthy period of time. A close
friendship was not reflected in defendant’s cell phone history. The letter proffered by Watkins
was not notarized or signed. In the letter, he offered to provide additional information and was
“willing to talk,” but it did not reflect that he would provide sworn testimony. Indeed, when
Watkins was called to testify at the Ginther hearing, he declined to provide any details or even
recall the drug deal and shooting that gave defendant an alibi. He simply stated he could not
remember any details, but he recognized what was written on the paper. Further, defendant’s
parole agent documented an interview that she conducted with Watkins. Watkins asked to act as
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an informant, but he was told that the nature of his charge in the federal system would not permit
it. He purportedly then recanted his alibi for defendant to his parole agent and further apprised the
agent that there was a “hit” on her life.
Because defendant’s phone records did not evidence an extensive relationship with
Watkins, the relationship with Watkins was initiated through their time in jail, the phone number
for “Breezy,” was linked to a female located in Flint and not a male drug dealer, and the possible
admission of defendant’s statement that he was shot at the barbershop as impeachment evidence,
it is apparent that Scharg, as trial counsel, did not want to pursue the alibi defense. Scharg testified
that he addressed this issue with defendant on multiple occasions, and defendant reluctantly agreed
to not pursue it. Indeed, Watkins’s testimony at trial demonstrated that he would not have been a
favorable witness and abandoned any alibi for defendant when it became apparent that it had
adverse consequences to himself. In light of the factual findings, the trial court appropriately
denied the motion for new trial, and we cannot conclude that it clearly erred.
Affirmed.
/s/ Thomas C. Cameron
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
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