Circuit Court LC No. 16-003081-01-FC
Before: Talbot, C.J., and Murray and O'Brien, JJ.
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.
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
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.
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.
STANDARD OF REVIEW
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).
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).
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.
first part of the one-person grand jury procedure is set
forth in MCL ...