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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 26, 2022
Plaintiff-Appellee,
v No. 353197
Genesee Circuit Court
ROGER DEWAYNE WILLIAMS, LC No. 17-041328-FC
Defendant-Appellant.
Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of second-degree murder, MCL
750.317; two counts of possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b; carrying a concealed weapon, MCL 750.227; and felon in possession of a firearm,
MCL 750.224f. The trial court sentenced defendant to a prison term of 34 to 51 years for his
conviction of second-degree murder; two years for each felony-firearm conviction; and 60 to 90
months for each of his convictions of carrying a concealed weapon and felon in possession of a
firearm. We affirm.
I. FACTS
This appeal arises out of a fatal shooting that occurred in the early morning hours in a liquor
store parking lot. An eyewitness to the shooting, Richard Grace, testified that the night before the
incident, he gave defendant a ride as an unregistered Uber driver to several locations. When Grace
picked him up, defendant wrapped a gun in a shirt and put it in the trunk of Grace’s car. Grace
eventually dropped defendant off at the liquor store, at which time defendant retrieved the gun
from the trunk of the car. Grace remained in his vehicle in the parking lot of the liquor store,
waiting to see if anyone else needed a ride anywhere. Shortly after arriving at the liquor store,
defendant exchanged a few words with the victim, and then defendant pulled out a gun and fired
several fatal shots at the victim. Defendant ran to Grace’s passenger door, with the gun in his
hand, and demanded Grace open the door. Grace let defendant in the car and drove off, with
defendant firing several more shots from the car as they left. They had driven for approximately
-1-
one mile when defendant jumped out of the car and ran. Grace called 911 and reported what had
happened, then returned to the scene.
At trial, Grace and two additional eyewitnesses, William Newell and Keith Jackson,
identified defendant as the shooter. Four videos from the liquor store’s surveillance cameras
captured the shooting, and were admitted into evidence. The prosecution also introduced into
evidence a letter that the prosecution asserted was written by defendant and intended for Grace;
the letter, which was delivered by an unknown person to Grace while Grace was in jail, referred
to Grace by what he testified was his nickname and provided information concerning the case. At
the conclusion of the trial, defendant was convicted, as indicated above.
II. ANALYSIS
A. IN-COURT IDENTIFICATIONS
Defendant first argues that Newell’s and Jackson’s in-court eyewitness identifications
violated his right to due process. We disagree.
We first note that defendant did not object to either of these in-court eyewitness
identifications on the ground raised on appeal, i.e., that they were unduly suggestive. Therefore,
this issue is not preserved, People v Posey, 334 Mich App 338, 346; 964 NW2d 862 (2020), and
is reviewed for plain error affecting defendant’s substantial rights, People v McNally, 470 Mich 1,
5; 679 NW2d 301 (2004). To show that plain error affected substantial rights a defendant must
show “prejudice, i.e., that the error affected the outcome of the lower court proceedings.” People
v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is only warranted “when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation omitted; alteration in
original).
“A defendant’s right to due process is implicated if an in-court identification was preceded
by a suggestive out-of-court identification.” Posey, 334 Mich App at 347. “If the trial court finds
that the pretrial procedure was impermissibly suggestive, testimony concerning that identification
is inadmissible at trial.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). To
sustain a due-process challenge to an in-court identification, a defendant must demonstrate that in
light of the totality of the circumstances, the pretrial identification procedure was so suggestive
that it led to a substantial likelihood of misidentification. Posey, 334 Mich App at 347. Even if a
defendant meets this burden, an “in-court identification by the same witness still may be allowed
if an independent basis for in-court identification can be established that is untainted by the
suggestive pretrial procedure.” Kurylczyk, 443 Mich at 303.
However, “[t]he need to establish an independent basis for an in-court identification only
arises where the pretrial identification is tainted by improper procedure or unduly suggestive
comments.” Posey, 334 Mich App at 349 (quotation marks and citation omitted). Accordingly, if
there is no pretrial identification facilitated by law enforcement, there can be no suggestive out-
of-court identification, and therefore, the in-court identification is admissible and questions
regarding the identification’s validity are left for the jury to assess. See id. at 359 (stating that
-2-
because there was no pretrial identification of one of the defendants by the witnesses in question,
“and thus no suggestive out-of-court identification,” the in-court identification of the defendant
“was properly left for the jury to assess”).
Defendant acknowledges that Posey is controlling in this case, but nevertheless argues that
the in-court identifications of defendant were inadmissible because they were impermissibly
suggestive, the totality of the circumstances did not support their admission, and no independent
basis was established for either of these identifications. Defendant’s argument is misplaced
because like in Posey, in this case, there was no evidence that either of these two eyewitnesses
participated in any pretrial identification facilitated by law enforcement. Although defendant
contends that one of the witnesses participated in a pretrial identification because he looked up
defendant on Facebook prior to trial, there was no law enforcement activity and as a result, this
does not amount to a pretrial identification facilitated by law enforcement. Because there was no
pretrial identification or improper law enforcement activity, and therefore no suggestive out-of-
court identification, the credibility of these in-court eyewitness identifications was properly left to
the jury. Posey, 334 Mich App at 349-351, 359.1
Defendant also argues that trial counsel was ineffective for failing to move to suppress
these two in-court eyewitness identifications. We disagree.
Because the trial court did not conduct an evidentiary hearing, our review is limited to
mistakes apparent from the record. People v Hughes, ___ Mich App ___, ___; ___ NW2d ___
(2021) (Docket No. 338030), slip op at 3. Trial counsel is ineffective when “counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). To demonstrate that trial counsel was ineffective, a defendant must show “(1)
that trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced
the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), citing Strickland, 466
US at 688. A trial counsel’s performance was objectively deficient if it fell below an objective
standard of reasonableness. People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). A
defendant is prejudiced if there is a reasonable probability that but for trial counsel’s errors, the
outcome would have been different. Randolph, 502 Mich at 9.
Defense counsel’s failure to move to suppress these in-court identifications on the ground
that they were unduly suggestive did not constitute objectively deficient assistance because raising
an objection would have been futile. See People v Zitka, 335 Mich App 324, 341; 966 NW2d 786
(2020) (“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.”) (quotation marks and citation omitted). As discussed above,
these in-court identifications were admissible because there was no pretrial identification
facilitated by law enforcement. See Posey, 334 Mich App at 359. In addition, defendant has failed
to demonstrate that there is a reasonable probability that the outcome of the proceedings would
have been different had defense counsel moved to suppress these identifications. Substantial
additional evidence was presented to demonstrate that defendant committed the charges against
him, such as Grace’s testimony that defendant was the shooter and video surveillance footage of
1
We decline defendant’s request to call for a special conflict panel pursuant to MCR 7.215(J).
-3-
the shooting introduced as evidence at trial. Therefore, defendant’s ineffective assistance of
counsel fails.
B. AUTHENTICATION OF LETTER
Defendant next argues that the trial court abused its discretion by admitting the letter
purportedly given to Grace because there was no proof that defendant wrote this letter. We
disagree.
“A trial court’s decision to admit evidence is reviewed for an abuse of discretion.” People
v Smith, 282 Mich App 191, 194; 772 NW2d 428 (2009). A trial court abuses its discretion when
it “chooses an outcome that falls outside the range of reasonable and principled outcomes.” People
v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
The authentication of evidence is governed by MRE 901(a), which requires that a
proponent of an exhibit present “evidence sufficient to support a finding that the matter in question
is what its proponent claims.” According to MRE 901(b)(4), examples of authentication or
identification that satisfy MRE 901(a) are distinctive characteristics and the like, including the
evidence’s “[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.”
If a proposed exhibit is shown to be what its proponent claims it is, the exhibit has been
sufficiently authenticated. People v Berkey, 437 Mich 40, 52; 467 NW2d 6 (1991). This
determination is exclusively for the trial court. People v Smith, 336 Mich App 79, 106; 969 NW2d
548 (2021). The trial court must determine whether the “proponent of the evidence has made a
prima facie showing that a reasonable juror might conclude that the proffered evidence is what the
proponent claims it to be.” Id. (quotation marks and citation omitted). If the proponent of the
evidence satisfies this standard, the evidence is authenticated and may be submitted to the jury,
which remains the ultimate fact-finder and determines the reliability and weight of the evidence.
Id.
In this case, the prosecution sought to admit three letters into evidence. The prosecution
claimed these letters were written by defendant and delivered by an unknown individual to Grace
while he was in jail on pending charges related to this case, which were later dismissed. On the
third day of trial, the admissibility of the letters was addressed and the trial court made a
preliminary ruling, subject to the prosecutor’s ability to authenticate the letter with testimony, that
only one letter was authenticated because the letter’s contents and substance, taken in conjunction
with other circumstances in the case, contained distinctive characteristics.
The evidence presented at trial demonstrated that the letter at issue was properly
authenticated pursuant to MRE 901 because it contained distinctive characteristics relevant to this
case that outside parties likely would not be privy to, which indicated that defendant wrote the
letter. MRE 901(b)(4). The letter referred to Grace by what he testified was his nickname and
referenced the charging history in this case, including that Grace was initially charged as an
accessory after the fact. The letter further stated, “They dont got me on no damn camera”; directed
“Cuz” to tell Grace that he was the only witness and that he appeared in the store video footage
for “all of 5 seconds” with another person who was wearing a hat that obscured his face; and
-4-
referred to specific facts and the procedural charging history in the case. The letter concluded,
“As long as [Grace] don’t testify . . . [w]e straight”; this statement was in alignment with
defendant’s interest in preventing Grace from testifying because he was a key witness against
defendant. These distinctive characteristics indicate that the letter was what the prosecutor claimed
it to be: a letter written by defendant. See MRE 901(b)(4). Because a reasonable juror might
conclude that the letter was what the prosecutor claimed it to be, see Smith, 336 Mich App at 107,
the letter was sufficiently authenticated, and the trial court did not abuse its discretion by admitting
it.
C. LESSER INCLUDED OFFENSE INSTRUCTION
Defendant, in a Standard 42 brief, argues that the trial court wrongly denied his request to
provide a lesser included offense instruction for manslaughter. We disagree.
Questions of law concerning jury instructions are reviewed de novo. People v Gillis, 474
Mich 105, 113; 712 NW2d 419 (2006). “But a trial court’s determination whether a jury
instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” Id.
(quotation marks and citation omitted). “Manslaughter is a necessarily included lesser offense of
murder.” Id. at 137. “[W]hen a defendant is charged with murder, an instruction for voluntary
and involuntary manslaughter must be given if supported by a rational view of the evidence.” Id.
(quotation marks and citation omitted; alteration in original). “Voluntary manslaughter is an
intentional killing committed under the influence of passion or hot blood produced by adequate
provocation and before a reasonable time has passed for the blood to cool.” People v Hess, 214
Mich App 33, 38; 543 NW2d 332 (1995).
Because defendant has failed to provide any authority, analysis, or record evidence to
support his assertion that an instruction on manslaughter was supported by a rational view of the
evidence, this issue has been abandoned. See People v Matuszak, 263 Mich App 42, 59; 687
NW2d 342 (2004). Regardless, there was no evidence of a confrontation between the victim and
defendant, and therefore no evidence of adequate provocation to support an instruction for
voluntary manslaughter. See Hess, 214 Mich App at 38. Therefore, the trial court did not abuse
its discretion by denying defendant’s request for a voluntary manslaughter instruction.
Affirmed.
/s/ Michael F. Gadola
/s/ Deborah A. Servitto
/s/ James Robert Redford
2
Administrative order 2004-6, Standard 4.
-5-