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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DAMON EUGENE JOHNSON, Defendant-Appellant.

UNPUBLISHED June 26, 2007

No. 267149 Oakland Circuit Court LC No. 2005-200796-FC

Before: Servitto, P.J., and Jansen and Schuette, JJ. PER CURIAM. Defendant appeals as of right his jury trial conviction of armed robbery, MCL 750.529. Pursuant to MCL 769.11, defendant was sentenced as a third habitual offender to 15 to 40 years in prison. We affirm defendant's conviction, but vacate defendant's sentence and remand for resentencing. Defendant first argues that the trial court erred by admitting the identification testimony of defendant's coworkers, who were not eyewitnesses to the incident. We disagree. To preserve an issue regarding identification procedures, the defendant must raise the issue at trial. People v Davis, 146 Mich App 537, 547; 381 NW2d 759 (1985). Defense counsel did not object to the testimony of the three employees, so this issue is not properly preserved for appellate review. Unpreserved claims are reviewed for plain error. People v Carines, 460 Mich 750, 763 764; 597 NW2d 130 (1999). To avoid forfeiture (1) an error must have occurred, (2) the error must be clear or obvious, and (3) the error must have affected substantial rights, meaning it affected the outcome of the trial. Id. at 763, citing United States v Olano, 507 US 725, 731-734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). 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. Carines, supra at 763-764; see also Olano, supra at 736-737. In this case, defendant's coworkers were not eyewitnesses to the robbery and were not used to identify defendant as the person who committed the offense. Thus, the law regarding unduly suggestive identification procedures is inapplicable in this matter. The credibility of identification testimony is a question for the trier of fact. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). A witness may testify to a matter if -1-


evidence is introduced to establish that the witness has personal knowledge of the matter. MRE 602; People v Holleman, 138 Mich App 108, 114; 358 NW2d 897 (1984). A lay witness may give opinion testimony that is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. MRE 701; People v Dobek, 274 Mich App 58, 77; ___ NW2d ___ (2007). Lay witnesses may testify concerning physical observations and their opinions formed as a result of those observations. People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988). Surveillance video shows a man wearing a dark jacket and brown boots committing an armed robbery at Ruby Tuesday in Farmington Hills on January 2, 2005. Detective Michael Flatt testified that he was provided with a still photo from the Ruby Tuesday surveillance equipment to take to Fishbones in Detroit, where defendant was employed, and to show to the employees there. Flatt believed that he went to Fishbones on the day after defendant was arrested. Flatt spoke with each employee individually. Flatt did not tell the employees why he was there or who he was investigating. Flatt testified that a manager at Fishbones identified defendant as the person in the photo. A cashier and a chef also responded that the photo looked like defendant. The chef specifically said it looked like defendant "because of the build, posture, and bald head." The surveillance photos were admitted into evidence at trial. The Fishbones manager testified at trial that defendant was a cook at Fishbones, but that she did not know him well because she did not work in the kitchen. She testified that when the police officer came with the picture, he asked her if defendant worked there and if he was scheduled to work that day. She then looked at the picture and told the officer that the person in the photograph looked similar to defendant. She thought that the picture she had been shown at the restaurant was clearer than the picture she was shown in court. However, in her written statement to the police, the Fishbones manager confirmed her belief that the person in the picture was defendant. A Fishbones cashier testified that the police officer showed her a blurred picture after defendant was arrested, and that she told the officer that it looked like defendant. Similarly, the chef testified that a police officer had shown him a blurry picture. He told the officer that that it looked like defendant, but that he was not sure because he always saw defendant in a cook's uniform. The chef was not certain if the officer mentioned defendant's name before showing him the picture, but testified that the type of jacket and the brand of boots defendant was wearing in the picture were both commonly worn in Detroit. The testimony of defendant's coworkers was admissible. The coworkers had personal knowledge regarding how defendant looked at the time. MRE 602; Holleman, supra at 114. Their testimony constituted lay opinions that were rationally based on their perceptions of defendant's appearance. MRE 701; Oliver, supra at 50. We are unconvinced by defendant's arguments that the identification procedure was unduly suggestive, conducive to an irreparable misidentification, and unfairly prejudicial. Defendant's coworkers did not identify him as the person who actually committed the armed robbery. They merely stated that he resembled the person depicted in the surveillance photos. In addition, the jury was able to observe defendant throughout the trial and compare his appearance to the perpetrator depicted in the surveillance video and still photos. By doing so, the jury was able to determine whether the witness identifications were credible. We perceive no plain error in this regard.

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Defendant also argues that his counsel was ineffective for failing to object to the admission of the testimony of the three coworkers. We disagree. To preserve the issue of ineffective assistance of counsel, a defendant must move for a new trial or an evidentiary hearing. People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989); see also People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Defendant did not move for a new trial or an evidentiary hearing before the trial court on this issue, so we review the issue on the basis of the existing record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). If the record does not contain sufficient detail to support defendant's ineffective assistance claim, he has waived the issue and is entitled to no relief. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). The right to effective assistance of counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

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