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People v. Green

Court of Appeals of Michigan

January 23, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ROBERT MONYA GREEN, Defendant-Appellant.

         Wayne Circuit Court LC No. 16-003081-01-FC

          Before: Talbot, C.J., and Murray and O'Brien, JJ.

          MURRAY, J.

         This case arises from defendant's robbery and shooting of James Winbush on December 15, 2015, during the course of what was supposed to be a sale of Wimbush's video game equipment to defendant. Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84, armed robbery, MCL 750.529, carrying a concealed weapon, MCL 750.227, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant does not argue that anything occurring during trial warrants a reversal of his convictions. Nor does he challenge his sentences. Instead, defendant argues that the use of a one-person grand jury, see MCL 767.3 and MCL 767.4, violated his right to counsel and his right to confront the witnesses against him. And, because his counsel did not lodge these objections to the proceedings, defendant argues that he received the ineffective assistance of counsel. We affirm.

         I. PERTINENT BACKGROUND

         On December 14, 2015, Winbush made arrangements through the internet to sell two video game systems and some accompanying video games to a buyer named "Darius King." The transaction was to be completed at Winbush's house on the morning of December 15, 2015. Winbush had never met King, and did not otherwise know who King was. That morning, Winbush informed his adoptive brother, Dion Strange, that a buyer was coming to their house to purchase the video game systems and accompanying video games. Not long after the discussion between Winbush and Strange, the buyer arrived at the house and called to let Winbush know. Winbush and Strange went to the porch to complete the sale. The buyer then exited a parked Ford Taurus and came to the porch. Winbush, however, recognized the buyer not as King, but as defendant, because the two had spent time together at a juvenile detention facility. Winbush attempted to proceed with the sale. However, not long after arriving at the porch, defendant pulled out a gun and indicated that he was robbing Winbush. In response, Winbush reached out to grab the gun, a struggle ensued, and defendant subsequently shot Winbush a few times before fleeing the scene. Strange, who was in the doorway leading into the house during the incident, was not hit by any bullets. Before being taken to the hospital, Winbush indicated to his aunt that he was shot by someone named "TSN Monya."

         While at the hospital, Strange asked Winbush who shot him. Winbush responded "TSN Monya." Strange recognized the name because, at some point in the past, Strange had seen defendant rapping in a music video. Once Strange heard Winbush's response, he searched for defendant on Facebook, an internet website, and was able to find a corresponding Facebook account entitled "TSN Big Homie Monya, " that featured photographs of defendant. Strange then showed Winbush two photographs from the account, and Winbush recognized the photographed individual as the shooter. Strange later showed the photographs to a detective. In turn, the detective spoke to Winbush, obtained a statement, and showed Winbush a photographic lineup. Winbush selected defendant from the photographic lineup. The lineup was eventually introduced at trial.

         Defendant was indicted by a one-person grand jury where Winbush and Strange were the only witnesses that testified. At trial, both Winbush and Strange made in-court identifications of defendant as the shooter. Defendant was subsequently convicted by the jury.

         II. STANDARD OF REVIEW

         "The question whether [defendant's trial attorney] performed ineffectively is a mixed question of law and fact[.]" People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). To the extent that defendant's arguments rely on constitutional provisions, this Court reviews constitutional issues de novo. People v Fonville, 291 Mich.App. 363, 376; 804 N.W.2d 878 (2011). Likewise, to the extent defendant's arguments involve the interpretation and application of a statute, this Court's review is also de novo. People v Waclawski, 286 Mich.App. 634, 645; 780 N.W.2d 321 (2009).

         Constitutional challenges must be raised in the trial court, otherwise those challenges are "not properly preserved for appellate review." People v Hogan, 225 Mich.App. 431, 438; 571 N.W.2d 737 (1997). Because defendant failed to challenge the use of the one-person grand jury procedure in the trial court, defendant's arguments are unpreserved and are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). To satisfy the plain error test, defendant must show that an obvious or clear error occurred and that the error affected the outcome of the trial court proceedings. Id. However, reversal is only warranted when the plain error results in the conviction of an "actually innocent defendant" or when an error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763 (quotation marks and citation omitted).

         III. ANALYSIS

         Defendant contends that his trial attorney was ineffective for failing to object to the use of the statutory one-person grand jury procedure because its use to indict defendant was unconstitutional given that it unduly impinged upon defendant's constitutional right to counsel and to confront the witnesses against him.

         The first part of the one-person grand jury procedure is set forth in MCL ...


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