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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MARTEZ RAMON DURANT, Defendant-Appellant.

UNPUBLISHED October 26, 1999

No. 207453 Detroit Recorder's Court LC No. 96-004768

Before: O'Connell, P.J., and Talbot and Zahra, JJ. PER CURIAM. Following a jury trial, defendant was convicted of carjacking, MCL 750.529a; MSA 28.797(a), armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to concurrent terms of four to ten years' imprisonment for the carjacking and armed robbery convictions, consecutive to two years' imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm. On appeal, defendant first argues that his convictions are not supported by sufficient evidence and contravene the great weight of the evidence. Defendant only contests the sufficiency and credibility of the evidence as it relates to his identity as the perpetrator. In reviewing the sufficiency of the evidence, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992). A jury verdict is against the great weight of the evidence only where the evidence preponderates heavily against the verdict and a serious miscarriage of justice would result if a new trial were not granted. People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). In the present case, the victim positively identified defendant both at a lineup and at trial as the man who threatened him with a gun and as one of the two men who stole his car. In addition, two police officers testified that they arrested defendant shortly after the incident only a block from where the car was found; that he matched the description given by the victim; and, that he told one officer that another individual had "also" been involved in the carjacking. Viewed in a light most favorable to the -1

prosecution, this evidence was sufficient to establish defendant's identity as the perpetrator. Although the credibility of this testimony was hindered by certain inconsistencies and uncertainties, such credibility determinations are the exclusive province of the jury and must stand even if the trial court would have reached a different conclusion. Lemmon, supra at 646-647. Therefore, after carefully reviewing the record, we find that the jury's verdict was supported by sufficient evidence and that the trial court did not abuse its discretion in concluding that the verdict did not contravene the great weight of the evidence. Defendant next contends that the trial court erred in failing to grant a new trial on the basis of a newly discovered witness. However, this issue is not preserved for review because defendant failed to renew his motion in the trial court with an affidavit from the witness. People v Darden, 230 Mich App 597, 605-606; 585 NW2d 27 (1998). Therefore, our review is limited to whether defendant has demonstrated a plain error that has affected substantial rights, i.e., caused prejudice by affecting the outcome of the trial. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "A motion for a new trial based on newly discovered evidence may be granted upon a showing that (1) the evidence itself, not merely its materiality, is newly discovered, (2) the evidence is not merely cumulative, (3) the evidence is such as to render a different result probable on retrial, and (4) the defendant could not with reasonable diligence have produced it trial." People v Lester, 232 Mich App 262, 271; 591 NW2d 269 (1998). According to defendant, the new witness saw defendant speaking to a neighbor and then saw him go a friend's house around the time the carjacking occurred. This evidence was cumulative to the trial testimony from both the neighbor and the friend and, therefore, would not make a different result probable on retrial. Further, there is no indication that defendant could not have produced the witness, who was merely another neighbor, with reasonable diligence, prior to trial. Accordingly, defendant has failed to demonstrate error. Defendant next argues that the trial court erred in admitting evidence of a second lineup involving another suspect where defendant was not present and where the victim failed to make an identification. Again, because defendant failed to object to the admission of this evidence below, we review this unpreserved issue for plain error. Carines, supra at 763. After a thorough review, we find no error. Contrary to defendant's contention, the testimony regarding the second lineup was relevant. Defendant informed the police (and inferentially maintained at trial) that the main subject of the second lineup, Richard White, was the man who actually stole the victim's car. Defendant's claim that White was involved and the victim's inability to identify White

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