PEOPLE v POSEY
Docket No. 162373
Michigan Supreme Court
July 31, 2023
334 Mich App 338
Arguеd on application for leave to appeal January 11, 2023. Syllabus Chief Justice: Elizabeth T. Clement. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden. Reporter of Decisions: Kathryn L. Loomis.
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
PEOPLE v POSEY
Docket No. 162373. Argued on application for leave to appeal January 11, 2023. Decided July 31, 2023.
Dametrius B. Posey and a codefendant were tried jointly before a jury in the Wayne Circuit Court on multiple counts of assault with intent to murder,
In an opinion by Justice BOLDEN, joined in full by Justice BERNSTEIN, by Justice CAVANAGH except as to Part II(A)(3), and by Justice WELCH as to Parts II(A)(1), (2), note 10 of Part II(A)(3) concerning ineffective assistance of counsel, and II(B)(1) and (2); an opinion by Justice CAVANAGH, joined in all but Part IV(B) and the statements concerning
The same due-process protections that apply to an in-court identification of a defendant that was preceded by an unnecessarily suggestive pretrial identification procedure also apply to a situation in which the identification of the defendant occurs for the first time at trial. When analyzing whether identification evidence must be excluded, the key question is whether it was rendered unreliable by state action, not just whether there was improper police activity. In this case, however, defendant was not entitled to relief from his convictions. Further, a defendant is entitled to challenge the proportionality of any sentence on appeal. When a trial court sentences a defendant within the guidelines’ recommended range, it creates a rebuttable presumption that the sentence is proportionate. The first sentence of
Court of Appeals judgment reversed in part and vacated in part; case remanded to the Court of Appeals for further proceedings. Leave to appeal denied in all other respects.
Justice BOLDEN, joined in full by Justice BERNSTEIN, further stated that because no objection had been raised to the introduction of Byrd‘s first-time-in-court identification of defendant as an assailant, there was an insufficient record for weighing the reliability of this identification evidence. She noted that defendant had not adequately explained how Byrd‘s identification affected other identification evidence produced at trial, such as surveillance video of the altercation and circumstantial evidence of defendant‘s identity. She also noted that the jury had been apprised of Byrd‘s inability to make a prior identification and of the fact that, between the time of his initial failure to identify Byrd and the time of trial, Byrd had been exposed to considerable media coverage that used defendant‘s name and photograph in connection with the altercation. She stated that defendant failed to explain how this in-court identification necessarily tainted the other evidence of defendant‘s identity. Accordingly, defendant did not meet the requirements of showing plain error that affected the outcome of the proceedings, nor had he established ineffective assistance of trial counsel. With respect to appellate review of sentences that are within the recommended guidelines range, Justice BOLDEN would also have held that the portion of
Justice CAVANAGH, concurring in part and concurring in the judgment, joined Justice BOLDEN‘s opinion except as to Part II(A)(3), and Justice CAVANAGH‘s opinion was joined in all but Part IV(B), addressing ineffective assistance of counsel, and the statements concerning
Justice WELCH, concurring in part, concurring in the judgment, and dissenting in part, joined Part II(A)(1) and (2) of the lead opinion in full, and also concurred with the handling of defendant‘s ineffective assistance of counsel claim in note 10 of Part II(A)(3) of the lead opinion. She agreed with Justice CAVANAGH‘s analysis regarding first-time-in-court identification of a defendant by a stranger and her handling of the plain-error analysis, and she therefore joined Justice CAVANAGH‘s concurrence except for Part IV(B) and the statements concerning
Chief Justice CLEMENT, joined by Justices ZAHRA and VIVIANO, concurring in part and dissenting in part, agreed that defendant was not entitled to relief for his due-process argument regarding the identification procedure, but otherwise dissented, stating that the majority‘s decision unduly expanded the Court‘s due-process jurisprudence regarding identification procedures from cases involving suggestive pretrial identification procedures to first-time-in-court identifications without precedential support or sufficient justification otherwise. She stated that admitting a first-time-in-court identification did not so violate fundamental conceptions of justice that a judicial reliability assessment was necessary before its admission in light of the protections available to a defendant at trial, a conclusion with which the federal appeals courts that had considered the issue agreed. She also disagreed that Lockridge, which rendered the sentencing guidelines advisory, was incompatible with the requirement in
Justice ZAHRA, concurring in part and dissenting in part, agreed that defendant was not entitled to relief for his due-process argument regarding the identification procedure and that his conviction should be affirmed. He also joined the separate opinion authored by Chief Justice CLEMENT, specifically agreeing that
FILED July 31, 2023
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 162373 DAMETRIUS BENJAMIN POSEY, Defendant-Appellant.
BEFORE THE ENTIRE BENCH
Two important issues are considered in this case. The first issue addresses due process rights and how prosecuting attorneys may introduce in-court testimony purporting to identify a defendant when the testifying witness had not identified the defendant before trial. The second issue addresses how an appellate court must consider a defendant‘s challenge to a minimum sentence that falls within the minimum sentence range calculated by the sentencing guidelines.
For a jury to find a defendant guilty of a charged crime, the prosecution must demonstrate that the defendant is guilty of every element of a crime beyond a reasonable doubt. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). One of those elements is identity—whether the defendant was the person who committed the charged crime. People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976). At issue here is a witness‘s trial testimony identifying defendant as the perpetrator of a crime.
Witness identification is guarded by the Due Process Clause of the United States Constitution, and the process used to identify a defendant must not be “so unnecessarily suggestive and conductive to irreparable mistaken identification” as to deny a defendant due process of law. Neil v Biggers, 409 US 188, 196; 93 S Ct 375; 34 L Ed 2d 401 (1972) (quotation marks and citation omitted). Whether an in-court identification of the defendant is admissible evidence depends on whether the procedures employed by the state to obtain the identification evidence result in an identification that is sufficiently reliable to be presented to the jury. Manson v Brathwaite, 432 US 98, 114; 97 S Ct 2243; 53 L Ed 2d 140 (1977). Even when the identification process is unnecessarily suggestive, identification evidence may nonetheless be admissible if there is an independent basis for establishing the reliability of the identification. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). This Court has established criteria for considering whether an independent basis exists, thus rendering the witness‘s identification reliable and admissible. People v Gray, 457 Mich 107, 115-116; 577 NW2d 92 (1998), citing People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977).
This case is unique. Unlike in prior cases, the witness who identified defendant at trial did not identify defendant before trial; the witness‘s first recorded identification of defendant as an assailant occurred at trial. In fact, the witness identified different individuals as possible assailants before trial. The Court of Appeals concluded that the reliability criteria could not be applied given that there was no improper law-enforcement activity and no pretrial identification of defendant obtained through an unnecessarily suggestive pretrial process. People v Posey, 334 Mich App 338, 350-351; 964 NW2d 862 (2020).
We disagree with the Court of Appeals on that point and vacate that portion of its opinion. The key to identification evidence is whether it was rendered unreliable by state action, not just whether there was improper police activity. Moreover, we extend the due process based preadmissibility screening protections from Gray and Kachar to witness identifications of a defendant that take place for the first time at trial. However, we nonetheless affirm defendant‘s convictions because he has not shown plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We also agree with the Court of Appeals that defendant has not satisfied the burden of demonstrating ineffective assistance of trial counsel.
Secondly, this case contains an important issue regarding defendant‘s right to appeal a sentence. Over the past 10 years, this Court has considered questions about the mandatory nature of Michigan‘s sentencing guidelines scheme. In People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), this Court decided that the Sixth Amendment of the United States Constitution requires that the sentencing guidelines used to calculate a suggested range for a defendant‘s minimum sentence are to be advisory—not mandatory—for trial courts when imposing sentences. This means that trial courts have discretion to impose minimum sentences outside the guidelines range so long as the sentence is proportionate to the seriousness of the circumstances surrounding the offense and offender. Two years later, we considered additional issues stemming from the decision in Lockridge, holding, among other things, that the sentencing guidelines are advisory in all applications, that sentencing decisions must be reasonable, and that sentencing decisions are reviewed for an abuse of discretion by determining whether they violated the principle of proportionality. See People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017). In Steanhouse, we remanded to the Court of Appeals to determine whether the defendants’ sentences—both of which exceeded
We must now decide whether appellate review is available for defendant‘s sentence that was within the sentencing guidelines’ range.
As to this issue, we hold that Lockridge requires the conclusion that
In light of these holdings, we remand this case to the Court of Appeals for a reasonableness review of defendant‘s sentence. In all other respects, leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by this Court.
I. FACTS AND PROCEDURAL HISTORY
On a Sunday afternoon in October 2017, Terrence Byrd and his cousin Dwayne Scott left a Detroit Lions tailgate to go to Super X Market in Detroit. They arrived at the market around 5:00 or 6:00 p.m. Scott had consumed alcohol, Byrd had not, and the two occasionally went inside the market to purchase lottery tickets before returning to Byrd‘s car.
At one point, the cousins witnessed two other men walk into the market wearing jeans and hoodies with their hoods up, despite the fact that the temperature at the time was warm. Byrd believed that one of the men was about 6‘3” and the other was to be 5‘7” and light-skinned. Byrd and Scott did not remember much more about these two men.
When the two men walked out of the store, the taller man pulled out what Byrd believed to be a nine-millimeter pistol and said something to Scott. The shorter man confronted Byrd. The witnesses recalled little about what happened immediately after, but gunfire erupted, lasting about one minute. Byrd did not know who shot first, but he testified that he fired 17 shots from his own gun, which emptied it, and that the bullets struck both men. Scott remembered running away, and he believed that he heard about 30 total shots fired.
Shortly after, Detroit police officers reported to the scene of the shootout. None of the involved parties was present, but the officers found bullet casings, a gun, a right-footed low-top shoe, and blood spatter. The recovered casings were later identified as having come from at least three types of guns. The gun found at the scene was never tested for fingerprints. It is unclear whether the blood at the scene was tested for DNA analysis, but no such DNA evidence was admitted at trial. The police
Meanwhile, Byrd took Scott to Detroit Receiving Hospital, where he was treated for a broken bone and nerve damage in his left arm caused by a bullet wound sustained in the shooting. Byrd recalled that when he arrived at the hospital, he believed there had been a car driving behind him with three individuals whom Byrd believed to be associated with the shooting. Byrd reached for his gun while explaining the situation to a hospital security guard, but the guard confiscated it, explaining that guns were not permitted in the hospital. The occupants of the vehicle did not enter the emergency room and instead drove away. Byrd thought the three people in that car could have been the shooters, but he never relayed this information to the police—who arrived at the hospital to interview Byrd after retrieving a gun from the crime scene that nobody disputes belonged to Byrd.
At about 7:12 p.m. on the evening of the shooting, defendant, Dametrius Posey, was admitted to Oakwood Hospital in Dearborn, where he received treatment for injuries sustained from gunshot wounds. The police arrived and interviewed him. He initially misidentified himself as “Devone” Posey. He told the officers that he believed he had been shot around 7:45 p.m. that evening near Rosemont and Warren Streets, which is in a different part of Detroit than the Super X Market—even though he was admitted to Oakwood more than 30 minutes before the time he reported being shot. The police did not investigate the area where defendant told them he was shot. They confiscated defendant‘s clothes to enter them into evidence, but it is unclear what happened to his clothing once it was taken, and it was never presented at trial.
The day after the shooting, Byrd and Scott gave statements to the police. Scott thought the shooter was dark-skinned and 5‘9,” and Byrd thought that one individual was 6‘3” and dark-skinned and the other was light-skinned with reddish-blonde hair. Byrd was given two photo arrays and asked whether he could identify the shooters. The photo arrays contained photographs of both defendant and codefendant, Sanchez Quinn. Byrd identified one man frоm each array; neither of the men he identified was charged in connection with this shooting. The next day, Scott was also given two photo arrays. He selected one man, defendant, as the individual he believed to be involved in the shooting, although he later testified that he was “unsure” and “didn‘t really know” if the person he picked was involved in the shooting because he was preoccupied with “getting out of the way of the bullets.”
Almost one year later, defendant and his codefendant were tried jointly on multiple counts each of assault with intent to murder,
Defendant was initially sentenced on August 2, 2018. His guidelines’ recommended sentence range was a minimum sentence of 225 to 562 months’ imprisonment on his controlling sentence of assault with intent to commit murder. He was sentenced within these guidelines to serve 264 months to 480 months in prison on that count.2 However, both the prosecution and defendant filed a joint motion to remand for resentencing based on several errors during defendant‘s first sentencing hearing. The Court of Appeals granted the motion, and the case was remanded to the trial court for resentencing with the Court of Appeals retaining jurisdiction.
Defendant was resentenced on November 7, 2019. Upon rescoring, his guidelines range was corrected to 171 to 427 months. Defendant sought a lesser sentence than he had received during his sentencing hearing, pointing out, among other things, that the 264-month minimum previously imposed was 11% of the original guidelines range and 11% of the rescored guidelines’ range would be 189 months. The trial court rejected defendant‘s arguments and imposed the same minimum sentence—264 months—which was still within his revised guidelines range.
The Court of Appeals affirmed defendant‘s convictions and sentence. Posey, 334 Mich App 338. Defendant applied for leave to appeal in this Court. We scheduled oral arguments on the application, asking the parties to address:
(1) whether the appellant was denied his right to due process when witness [Byrd] was allowed to identify him at trial, or denied the effective assistance of counsel when trial counsel failed to object to the witness’ in-court identification testimony; (2) whether the requirement in
MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and . . . Lockridge, 498 Mich 358 (2015); and, if not, (3) whether the appellant‘s sentence is reasonable and proportionate. [People v Posey, 508 Mich 940, 940-941 (2021).]
II. ANALYSIS
A. DUE-PROCESS RIGHTS AND IN-COURT IDENTIFICATION
1. STANDARD OF REVIEW
The procedure used to obtain identification evidence of a witness is an important consideration under the both the state and federal Constitutions’ protections of defendants’ rights to due process of law.
Defendant also raised, and we asked for briefing on, the question of whether trial counsel‘s failure to object to Byrd‘s testimony denied him his constitutional right to the effective assistance of trial counsel. This is a mixed question of fact and law. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012); Strickland v Washington, 466 US 668, 698; 104 S Ct 2052; 80 L Ed 2d 674 (1984). This Court reviews the questions of law de novo and the questions of fact for clear error. Trakhtenberg, 493 Mich at 47. De novo review means that this Court reviews the legal issue independently without deference to the lower court. People v Bruner, 501 Mich 220, 226; 912 NW2d 514 (2018).
2. RELIABILITY OF IN-COURT IDENTIFICATION
A defendant‘s due-process rights protect against the admissibility of in-court identification evidence that was preceded by a pretrial identification procedure that was “so unnecessarily suggestive” as to be conducive to mistaken identity. Biggers, 409 US at 196 (quotation marks and citation omitted). However, identification evidence stemming from a pretrial identification process that is unnecessarily suggestive may still be admissible if there is an independent basis for establishing the reliability of the identification. Kurylczyk, 443 Mich at 303. This Court, expanding on the factors articulated in Biggers, has identified eight factors to determine whether such an independent basis exists:
- Prior relationship with or knowledge of the defendant.
- The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor[s] affecting sensory perception and proximity to the alleged criminal act.
- Length of time between the offense and the disputed identification.
- Accuracy or discrepancies in the pre-lineup or show-up description and defendant‘s actual description.
- Any previous proper identification or failure to identify the defendant.
- Any identification prior to lineup or showup of another person as defendant.
- . . . [T]he nature of the alleged offense and the physical and psychological state of the victim. In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred. Factors such as “fatigue, nervous exhaustion, alcohol and drugs,” and age and intelligence of the witness are obviously relevant.
- Any idiosyncratic or special features of defendant. [Gray, 457 Mich at 116, citing Kachar, 400 Mich at 95-96 (quotation marks, citations, and emphasis omitted; alterations in original).]
Whether the same protections that apply to an in-court identification that was preceded by an unnecessarily suggestive pretrial identification procedure apply to a situation in which there was no pretrial identification is a matter of first impression for this Court. Defendant argues that
On the surface, language in both Barclay and Perry appears to support the Court of Appeals’ holding, but closer examination shows that both cases are distinguishable, and the Court of Appeals erred by concluding that there was no due-process violation. In Barclay, the Court of Appeals held that there was no need to establish an independent basis for an in-court identification when an eyewitness did not identify the defendant during a pretrial corporeal lineup but then identified the defendant for the first time in the courtroom. Barclay, 208 Mich App at 676. However, the key distinction between this case and Barclay is that the witness‘s first identification of the defendant in Barclay occurred at a pretrial examination in the courtroom, not at trial.3 The first time Byrd identified defendant was at trial, in front of a jury determining defendant‘s guilt.
In Perry, the United States Supreme Court noted that it had “not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.” Perry, 565 US at 232. But Perry did not opine on whether a due-process violation occurs when a witness identifies the defendant for the first time at trial.4 Instead, Perry was a case in which a defendant sought suppression of a pretrial
witness identification when the witness initially identified the defendant as an assailant during a conversation with a police officer at the scene of the crime but later could not identify the defendant in a photographic array. Id. at 234. There was no evidence that any state actor intended the witness to see or identify the defendant at the
When no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. [Id. at 232-233.]
Thus, Perry concluded that—absent intentional state action that created a substantial likelihood of misidentification—the witness‘s pretrial identification at the scene of the crime could be admissible at trial even though the witness later had difficulties identifying the defendant. But Perry did not change the due-process requirement that an identification procured by improper state action must be sufficiently reliable to be presented to the jury.5
Perry focuses on the notion that Supreme Court cases have held that the ordinary due-process check is “not [about] suspicion of eyewitness testimony generally, but only [about] improper police arrangement of the circumstances surrounding an identification.” Id. at 242, citing Coleman v Alabama, 399 US 1; 90 S Ct 1999; 26 L Ed 2d 387 (1970). Perry also acknowledged that the Supreme Court had previously been concerned about the risk of “police rigging” of an unnecessarily suggestive identification procedure. Perry, 565 US at 242, citing United States v Wade, 388 US 218, 233, 235-236; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). Thus, the facts that led to the development of the Supreme Court‘s doctrine concerning due-process rights implicated when identification evidence is admitted were premised on cases developed from unnecessarily suggestive pretrial identifications arranged by the police.
This case does not concern such police activity. But that does not mean that due-process rights might not still be implicated. Here, Byrd was not able to identify defendant before trial. The only time Byrd is on the record as having identified defendant was during defendant‘s trial, and that identification was elicited by the prosecution. We hold that Perry and Barclay are only binding when there is some pretrial identification by the witness presenting identification evidence that was not improperly facilitated by a state actor. Importantly, when there is no pretrial identification of the defendant by the witness at all and the identification evidence is presented for the first time before a jury, we hold that the crux of the analysis cannot be on whether the police behavior was improper, contrary to the Court of Appeals’ approach. Rather, “reliability is the linchpin in determining the admissibility of identification testimony . . . .” Brathwaite, 432 US at 114.
Although this is an issue of first impression, there are concerns about unnecessary suggestiveness associated with first-time-in-court identification evidence. We note that the concern about unnecessary suggestiveness when showing a defendant singly to a witness is well documented. See, e.g., People v Sammons, 505 Mich 31, 41-47; 949 NW2d 36 (2020). As Perry acknowledged, “[m]ost eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do.” Perry, 565 US at 244. This potential suggestiveness increases when the prosecution asks а witness to testify as to whether they can identify the person who committed the crime—for the first time—at the defendant‘s trial. Another jurisdiction has explained that,
because the extreme suggestiveness and unfairness of a one-on-one in-court confrontation is so obvious, we find it likely that a jury would naturally assume that the prosecutor would not be allowed to ask the witness to identify the defendant for the first time in court unless the prosecutor and the trial court had good reason to believe that the witness would be able to identify the defendant in a nonsuggestive setting. [State v Dickson, 322 Conn 410, 425; 141 A3d 810 (2016).]
Like the United States Supreme Court, we “do not doubt either the importance or the fallibility of eyewitness identifications.” Perry, 565 US at 245. An in-court identification following an unnecessarily suggestive out-of-court law-enforcement procedure implicates a defendant‘s due-process rights because of the involvement of improper state action. We hold that due-process rights are also implicated when the prosecution—another agent of the state—conducts an unnecessarily suggestive in-court law-enforcement procedure by obtaining an in-court identification of a defendant by a witness who was unable to identify a defendant at any point prior to that identification.6
Accordingly, we hold that evidence of an unnecessary first-time-in-court identification procured by the prosecution—a state actor—implicates a defendant‘s due-process rights in the same manner as an in-court identification that is tainted by an unduly suggestive out-of-court identification procedure employed by the police.7
same due-process rights
Other jurisdictions have concluded that their state constitutions supported expanding a per se exclusionary rule for eyewitness identification evidence when impermissibly suggestive identification procedures were used. See State v Martinez, 478 P3d 880, 903; 2021-NMSC-002 (2020); People v Marshall, 26 NY3d 495; 45 NE3d 954 (2015); Commonwealth v Silva-Santiago, 453 Mass 782; 906 NE2d 299 (2009), abrogated on other grounds by Commonwealth v Moore, 480 Mass 799 (2018). Defendant asks this Court to adopt such a per se exclusionary rule for first-time-in-court identification procedures. However, because the only jurisdictions we have found that support such a view conclude that it is a state constitutional right and defendant has not demonstrated that the Michigan Constitution compels such a result, we decline to adopt this position in this case.
3. PREJUDICE
At trial, there was no objection raised to the introduction of Byrd‘s first-time-in-court identification of defendant as an assailant. Without an objection, there is an insufficient record for weighing the reliability of this identification evidence. Assuming that this procedure violated defendant‘s right to due process, defendant is not entitled to a new trial because he has not met the requirements of showing plain error or ineffective assistance of trial counsel.
The first question presented is whether defendant was denied due process of law when Byrd was permitted to identify defendant for the first time at trial. The alleged due-process violation is a constitutional error, but since defendant did not object at trial, the issue is unpreserved and subject to plain-error review. Carines, 460 Mich at 763. Plain error occurred if “1) error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id., citing United States v Olano, 507 US 725, 731-734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). Further, for such an error to be reversed on appeal, the error
At trial, Byrd was the only person to positively identify defendant. Although DS had identified defendant before trial, DS did not identify defendant as a perpetrator while testifying under oath before the jury. Assuming, without deciding, that the trial court‘s admission of Byrd‘s identification was plain error, we conclude that defendant cannot show plain error requiring reversal.9
The third element of Carines “generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460 Mich at 763. We conclude that defendant has not made such a showing.
Defendant argues that the plain error affected his substantial rights because of the importance of Byrd‘s identification at trial. Defendant also argues that since Byrd identified defendant and that juries place disproportionate weight on eyewitness identifications, there was almost no evidence that went untainted at defendant‘s trial. Although this Court has recognized the importance of eyewitness identifications, defendant has not explained through more than mere conclusory statements how Byrd‘s identification affected other identification evidence produced at trial. Defendant ignores the fact that surveillance video of the altercation was admitted at trial. Circumstantial evidence of defendant‘s identity is also important. The prosecution produced evidence that defendant was admitted to a nearby hospital with gunshot wounds shortly after a shootout in which Byrd recalled shooting both assailants. There was also evidence that defendant, when interviewed by the police, gave false information about both his name and the time in which he arrived at the hospital in relation to the shooting he was involved in. Finally, the jury was apprised of Byrd‘s inability to make a prior identification of defendant when Byrd conceded on cross-examination that he had never before identified defendant as an assailant and that he was exposed to considerable media coverage that used defendant‘s name and photograph in connection with the altercation. In asking this Court to reverse his convictions under a plain-error analysis, defendant fails to explain how this in-court identification necessarily tainted the other evidence of defendant‘s identity. Defendant has not established that the asserted plain error affected the outcome of the proceedings, so he has not shown that this due-process violation caused the prejudice necessary for reversal. Therefore, we affirm the Court of Appeals’ conclusion that reversal is not appropriate.10
1. STANDARD OF REVIEW
Whether Schrauben correctly interpreted
2. MANDATORY SENTENCING GUIDELINES
The Michigan Constitution vests sentencing authority in the Legislature.
In 1983, this Court used an administrative order to implement judicial sentencing guidelines. People v Babcock, 469 Mich 247, 254; 666 NW2d 231 (2003).11 The guidelines required sentencing courts to “follow the procedure of ‘scoring’ a case on the basis of the circumstances of the offense and the offender, and articulate the basis for any departure from the recommended sentence range yielded by this scoring.” People v Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). In 1998, the Legislature exercised its sentencing authority and replaced the judicial sentencing guidelines by enacting statutory sentencing guidelines,
From 1983 through 2015, for the most part, in Michigan, sentencing guidelines were mandatory.
During this time span, federal sentencing guidelines were undergoing a similar transition. In 1984, Congress passed the Sentencing Reform Act (SRA), which created the United States Sentencing Commission to develop guidelines sentencing ranges for various combinations of offender and offense characteristics and to provide guidance about applying the guidelines.
The United States Supreme Court has entertained several questions about the constitutionality of federal and other states’ mandatory sentencing guidelines. Focusing on just a few of those cases,12 for example, the Supreme Court was faced with the question of whether a New Jersey sentencing enhancement that raised the statutory maximum penalty for firearm possession violated the Sixth Amendment unless it was submitted to a jury for proof beyond a reasonable doubt. Apprendi v New Jersey; 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000). The New Jersey statute at issue in Apprendi was held to be unconstitutional because sentencing factors that impose greater criminal punishments had to be found by a finder of fact, given that there was no constitutional distinction between “elements” and “sentencing factors.” Id. at 494. The Court explained that “the relevant inquiry [was] one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Id. The Court concluded that when sentencing factors increase the potential maximum sentence for a defendant, they deprive the defendant of their right to a jury trial and the right to have the prosecution prove all elements of a crime beyond a reasonable doubt, in violation of the Sixth Amendment. Id. at 496. Thus, sentencing factors become the functional equivalent of elements of a crime when they increase the potential maximum sentence. Id. at 494 n 19.
Then, the Court held that the federal guidelines must be read as merely advisory rather than mandatory for all judges to preserve the federal guidelines as constitutional under the Sixth Amendment‘s requirement that facts that increase maximum sentences must be submitted to a jury unless otherwise admitted by the defendant. United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005). This meant that the federal sentencing guidelines were to be advisory rather than mandatory, despite the seemingly mandatory language that the authorizing statute used, in order to protect the Sixth Amendment rights addressed in Apprendi. Id. Having held that the guidelines were advisory, the Supreme Court directed federal appellate courts to review sentences for reasonableness. Id. at 261, 264.
The Court later extended the logic set forth in Apprendi outside the context of maximum penalties to mandatory enhancements of minimum sentences. In Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013), the Court held that facts that increase the mandatory minimum sentence are elements of an offense that must be submitted to the jury and proved beyond a reasonable doubt. Id. at 108, citing Apprendi, 530 US at 483 n 10. Like any factor that increases the mandatory maximum sentence of a crime, any factor that increases the mandatory minimum sentence for a crime is an element of the crime itself and nоt a mere sentencing
With the United States Supreme Court jurisprudence setting these constitutional bounds in the background, in 2015, this Court recognized the same problems with Michigan‘s then-mandatory sentencing scheme. See Lockridge, 498 Mich 358. In Lockridge, this Court, in accordance with the Supreme Court‘s developing Sixth Amendment jurisprudence, severed two statutory provisions of Michigan‘s sentencing scheme as unconstitutional:
Two years later, this Court provided further guidance in Steanhouse, 500 Mich 453. After Lockridge, questions remained about whether the guidelines were discretionary only when judicial fact-finding was made that increased a defendant‘s sentencing range. Id. at 465. This Court clarified that Lockridge stood for the proposition that the guidelines were advisory in all applications because the sentencing guidelines required both judicial fact-finding and adherence to the guidelines by sentencing courts. Id. at 466-467. The Court explained that the “guidelines ‘remain a highly relevant consideration in a trial court‘s exercise of sentencing discretion’ that trial courts ’ “must consult” ’ and ’ “take . . . into account when sentencing.” ’ ” Id. at 474-475, quoting Lockridge, 498 Mich at 391, quoting Booker, 543 US at 264. In practice, appellate courts are now required to review a sentence that goes beyond the guidelines for reasonableness, with the key test being ” ‘whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range[.]’ ” Steanhouse, 500 Mich at 475, quoting People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990).
3. WITHIN-GUIDELINES SENTENCES MUST BE REVIEWED ON APPEAL FOR REASONABLENESS
After Lockridge was decided, the Court of Appeals interpreted Lockridge to have kept
In Lockridge, this Court noted that “[t]o the extent that any part of
Footnote 1 of Lockridge necessarily, in striking down “any part of
In Lockridge, we held—as reaffirmed in Steanhouse—that the legislative sentencing guidelines are advisory in all applications. Steanhouse, 500 Mich at 459. We now reaffirm Lockridge again, holding that the legislative sentencing guidelines are advisory in all applications, including on appeal. Any confusion about the possible applicability of this footnote to
Had this Court believed that out-of-guidelines sentences and within-guidelines sentences should have been given differential treatment on appeal, the “or adheres to” language would have been omitted from its quotation of Milbourn. But “or adheres to” is important. A sentence that adheres to the guidelines’ recommended range is reviewed for proportionality. Steanhouse meant what it said as it reaffirmed this holding from Milbourn, a case that had been abrogated by statute, and included “or adheres to the guidelines’ recommended range” to explain that a sentence‘s relationship to its guidelines does not alter the standard of review. Steanhouse, 500 Mich at 473.
Here, we assert the same. In accordance with Lockridge and Steanhouse, we hold that appellate courts must review all sentences
Evidence supporting this holding is also found in the ways the Court of Appeals has attempted to apply
Moreover, a mandate that a within-guidelines sentence be affirmed on appeal would effectively collapse the requirement in Lockridge that the sentencing guidelines be advisory “in all applications.” Steanhouse, 500 Mich at 466, citing Lockridge, 498 Mich at 364. Instead, it creates a situation through which a sentencing court can effectively become its own appellate court simply by applying a within-guidelines sentence. In other words, under Schrauben, a sentencing court that wishes to evade appellate review can do just that by imposing a within-guidelines sentence.17 Allowing Schrauben to stand would thus transform the mandatory affirmation required by
Lockridge explained that its constitutional holding had two bases: the judicial fact-finding required to score the sentencing guidelines, and the guidelines’ mandatory nature. Lockridge, 498 Mich at 364; see also Steanhouse, 500 Mich at 466-467. These concerns do not stop at the point a sentence is ordered. Although the guidelines remain a highly relevant consideration, they do not permit a trial court to use them as a shield against appellate review.
In Steanhouse, we explained why this is the case by showing how our proportionality test, which asks “whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range,” comports with Supreme Court caselaw. Id. at 475, quoting Milbourn, 435 Mich at 661. In particular, we explained that our proportionality test—the same test we applied in Steanhouse, and the same one we apply here—comports with the Supreme Court‘s warning that reasonableness review may ” ‘come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.’ ” Steanhouse, 500 Mich at 474, quoting Gall v United States, 552 US 38, 47; 128 S Ct 586; 169 L Ed 2d 445 (2007). We concluded that the principle of proportionality we apply on appeal “does not create such an impermissible presumption” because “[r]ather than impermissibly measuring proportionality by reference to deviations from the guidelines,” we apply the proportionality test outlined in Milbourn. Steanhouse, 500 Mich at 474. The differential treatment of within- and outside-guidelines sentences by both trial courts and appellate courts pre-Lockridge created both a preference for within-guidelines sentences and a presumption of unreasonableness for outside-guidelines sentences. If we are concerned about creating an “impermissible presumption of unreasonableness for sentences outside the [g]uidelines rangе,” it is necessary to permit proportionality review of within-guidelines sentences to erase that concern. Id., quoting Gall, 552 US at 47.
Consider an illustration. Two defendants with similar backgrounds are convicted of similar crimes. Both are required to have a sentence that is “proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich at 636. Both defendants’ guidelines are scored identically. Defendant A receives a minimum sentence matching the highest end of their guidelines. Defendant B receives a minimum sentence in excess of the guidelines’ highest end by 6 months.
4. PRESUMPTION OF PROPORTIONALITY
Although it is insufficient to limit proportionality review on appeal to just those challenges that the Court of Appeals deems constitutional, the Court of Appeals reviews only such “constitutional challenges” to within-guidelines sentences for proportionality. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008), citing Broden, 428 Mich at 354-355. Defendant bears the burden of overcoming the presumption. Powell, 278 Mich App at 324. We adopt this approach for all appellate challenges to within-guidelines sentences.
Again, the United States Supreme Court‘s rulings in this context, although not directly on point, are illustrative. Booker requires federal courts of appeals to review federal sentences for unreasonableness. Booker, 543 US at 261. After that case was decided, the federal circuit courts were split as to whether that meant there should be a presumption that a within-guidelines federal sentence was reasonable. Ultimately, the Supreme Court required appellate courts to apply a reasonableness presumption on appeal of a within-guidelines sentence. Rita v United States, 551 US 338, 341; 127 US 2456; 168 L Ed 2d 203 (2007).19 The reasons given
The Court must now approach the same problem from the opposite direction. This Court has made clear that Michigan‘s sentencing scheme is modeled to be parallel to the federal sentencing scheme. See, e.g., Lockridge, 498 Mich at 391 (explaining that Michigan‘s sentencing scheme was “Booker-ize[d]” when the guidelines were rendered advisory). The appellate considerations are also the same as identified in Booker—reasonableness review in which the guidelines are highly relevant. Steanhouse, 500 Mich at 474-475, citing Booker, 543 US at 264. In Steanhouse, we also recognized that the key to reasonableness review is whether the sentence is proportionate. Steanhouse, 500 Mich at 475, citing Milbourn, 435 Mich at 661. Thus, like the Rita Court, we conclude that on appeal, within-guidelines sentences are to be reviewed for reasonableness, but that applying a presumption of proportionality—such as the one applied by the Court of Appeals in Powell, through which the defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate—is appropriate.
We reach many of the same conclusions reached in Rita. A presumption of proportionality does not mean that a within-guidelines sentence is binding on the Court of Appeals. Rita, 551 US at 353. Because the presumption is nonbinding, it alleviates pressure faced by sentencing courts to impose within-guidelines sentences. Id. And it positions appellate courts to recognize both that the guidelines remain highly relevant to sentencing decisions and that a within-guidelines sentence may indeed be disproportionate or unreasonable. See Lockridge, 498 Mich at 391; Milbourn, 435 Mich at 661.
III. APPLICATION
The Court of Appeals affirmed defendant‘s sentence “[b]ecause
In holding that there was no due-process violation when a witness identified defendant for the first time at trial, the Court of Appeals erred. The admissibility of in-court identification is premised on reliability, and this identification was not reliable. Accordingly, we vacate the portion of the Court of Appeals opinion analyzing in-court identification, but nonetheless affirm defendant‘s convictions because defendant has neither shown plain error nor ineffective assistance of trial counsel.
We also reverse the judgment of the Court of Appeals as to whether defendant could challenge his within-guidelines sentence on appeal. In accordance with our decision in Lockridge, we hold that defendants may challenge the proportionality of any sentence on appeal and that the sentence is to be reviewed for reasonableness. When a trial court sentences a defendant within the guidelines’ recommended range, it creates a presumption that the sentence is proportionate. However, unlike a mandate that an appellate court affirm a within-guidelines sentence, the presumption of proportionality may be overcome. We therefore reaffirm the part of Lockridge that declared that any portion of
Kyra H. Bolden
Richard H. Bernstein
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 162373
DAMETRIUS BENJAMIN POSEY, Defendant-Appellant.
CAVANAGH, J. (concurring in part and concurring in the judgment).
I concur in the Court‘s judgment, the majority‘s broad holdings, and in all but Part II(A)(3) of Justice BOLDEN‘s lead opinion.1 Specifically, I agree with the majority that the first sentence of
I write separately for three reasons. First, I write to provide additional explanation as to why first-time trial identifications raise due-process concerns and why, in my view, first-time trial identifications of a defendant with whom the witness had no prior interactions before the alleged crime2 will almost always be insufficiently reliable to satisfy due-process requirements. Second, I write to elaborate on why the Court‘s holding as to first-time trial identifications is consistent with Perry v New Hampshire, 565 US 228; 132 S Ct 716; 181 L Ed 2d 694 (2012). Finally, I write to explain why, instead of affirming defendant‘s convictions on the basis that defendant cannot demonstrate prejudice, I
I. THE BIG PICTURE
I agree with the majority that due process is implicated where a witness identifies the defendant as the perpetrator for the first time at trial.3 It is clear that in-court identifications are highly suggestive; they are simply a formalized version of a police “showup.”4 As aptly stated by the Connecticut Supreme Court, “we are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person who the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime.” State v Dickson, 322 Conn 410, 423; 141 A3d 810 (2016) (emphasis omitted). And the dangers of permitting such identifications are not merely hypothetical or ideological; it is well established both in law and in science that “mistaken eyewitness identifications are a significant cause of erroneous convictions” and that the risk of erroneous convictions is exacerbated “when the identification has been tainted by an unduly suggestive procedure.” Id. at 425.5
While the Due Process Clause does not require trial judges “to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances,” Perry, 565 US at 240 (emphasis added),6 it does function to deter state action that unnecessarily creates a “substantial likelihood of misidentification,” id. at 239
II. DUE PROCESS AND FIRST-TIME TRIAL IDENTIFICATIONS OF A STRANGER
This Court recently summarized the framework for determining the admissibility of eyewitness identifications under the Due Process Clause:
Due process protects criminal defendants against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable. [People v Sammons, 505 Mich 31, 41; 949 NW2d 36 (2020) (quotation marks and citations omitted).]
If evidence of an identification is inadmissible under this test, the witness may identify the defendant at trial only if they have an “independent basis” for the in-court identification. People v Gray, 457 Mich 107, 114-115; 577 NW2d 92 (1998).8 This is not a new concept, as it has existed in various forms since the 1960s. Sеe Perry, 565 US at 237-240 (summarizing Supreme Court caselaw on the issue).9 Thus, the question is simply whether
First, in-court identifications are obviously highly suggestive. As this Court recently explained, it “has long been beyond debate” that a pretrial “showup“—in which a suspect is shown singly to a witness—is a highly suggestive procedure that creates a strong likelihood of misidentification. Sammons, 505 Mich at 41; id. at 41-47. Such a procedure clearly signals to the witness that this is the person the police suspect of having committed the crime, making the witness more likely to incorrectly identify that person as the perpetrator. Id. at 44 (noting “empirical finding[s] that innocent suspects are more often identified in showups than lineups“). This is especially true when a showup is conducted in a police stationhouse. Id. The inherent suggestiveness of showing a suspect singly to the witness is exacerbated to the extreme during in-court identifications. By bringing charges against a defendant, the state is unequivocally expressing its belief to the witness not only that the defendant committed the crime, but also that it can present sufficient evidence to satisfy the relevant burden of proof. See Dickson, 322 Conn at 423 & n 9 (citing cases). “If this procedure is not suggestive, then no procedure is suggestive.” Id. at 424; see also Sammons, 505 Mich at 44 (stating that “[i]n this case, all we need to observe in order to conclude that the procedure was suggestive is that defendant was shown singly to the witness“).
Second, I agree with the majority that it is never necessary to elicit a witness identification for the first time at trial; the state “can always employ a nonsuggestive identification procedure before trial or elicit other incriminating testimony as to the circumstances of the crime without asking the witness to identify the defendant in the courtroom.” Ante at 16 n 6.12 As the
Third, I believe that where a witness identifies a stranger for the first time at trial, that identification will rarely be sufficiently reliable to satisfy due process. The United States Supreme Court has rejected a per se exclusionary rule for unnecessarily suggestive identification procedures in favor of a totality-of-the-circumstances test to determine whether there is a substantial likelihood of misidentification. Sammons, 505 Mich at 49.14 In conducting this inquiry, courts consider a nonexclusive list of factors, which includes:
- (1) “the opportunity of the witness to view the criminal at the time of the crime,”
- (2) “the witness’ degree of attention,”
- (3) “the accuracy of his prior description of the criminal,”
- (4) “the level
of certainty demonstrated at the confrontation,” and - (5) “the time between the crime and the confrontation.”
[Id. at 50-51, quoting Manson v Brathwaite, 432 US 98, 114; 97 S Ct 2243; 53 L Ed 2d 140 (1977).]
The prosecutor bears the burden to show that the indicia of reliability ” ‘are strong enough to outweigh the corrupting effect’ ” of the unnecessarily suggestive identification. Sammons, 505 Mich at 55, quoting Perry, 565 US at 232. This analysis requires a court to consider how suggestive the specific procedure at issue was. Sammons, 505 Mich at 49 n 12 (identifying the “extent of [the] suggestiveness” of a procedure as part of the reliability inquiry).
As discussed earlier, the “corrupting effect” of a first-time trial identification is strong, which weighs heavily in favor of finding a substantial likelihood of misidentification. Moreover, there is always a significant lapse in time between the crime and any trial identification. The Supreme Court has recognized that a lapse of seven months between the crime and identification is a “serious[] negative factor in most cases,” Neil v Biggers, 409 US 188, 201; 93 S Ct 375; 34 L Ed 2d 401 (1972), and criminal trials often occur more than seven months after the offense is committed. Where a witness has no prior relationship with the offender and has not identified the defendant previously in a nonsuggestive identification procedure, it is hard to envision any set of circumstances in which the prosecutor could prove there are sufficient indicia of reliability to outweigh the corrupting effect of the first-time trial identification.
For the same reasons, it is unlikely that a witness in these circumstances will ever have an independent basis for the identification. Generally, the reliability and independent-basis inquiries substantially overlap. See Gray, 457 Mich at 115-116 & n 10.15 The distinction is that the reliability inquiry focuses on the admissibility of the pretrial identification, while the independent-basis inquiry focuses on whether a witness who was subject to an unnecessarily suggestive pretrial procedure may nonetheless identify the defendant at trial. Id. at 114-115 & n 9. In the context of first-time trial identifications, these inquiries essentially collapse into each other, as the trial identification itself is the improper identification procedure.
Chief Justice CLEMENT notes that, unlike a suggestive pretrial identification procedure, a first-time trial identification occurs in front of the defendant and the jury. She argues that because any suggestive identification procedure occurs publicly, there is a greater chance thаt defense counsel will point out the flaws in the identification and that the jury will recognize such flaws.16
In sum, under the generally accepted framework set forth by caselaw, I believe that a first-time trial identification of a stranger will, at minimum, almost always violate due process and therefore must be excluded from trial.19
In rejecting defendant‘s due-process argument, the Court of Appeals did not dispute any of the above points. Indeed, it did not engage in this analysis at all. Rather, it held that, under Perry v New Hampshire, the Due Process Clause does not require exclusion of witness identifications if “there was no improper law enforcement activity and no pretrial identification . . . .” People v Posey, 334 Mich App 338, 351; 964 NW2d 862 (2020), citing Perry, 565 US at 231-233. Under these circumstances, according to the Court of Appeals, ” ‘it suffices to test reliability through the rights and opportunities generally designed for that purpose,’ ” such as cross-examination and the rules of evidence. Id. at 350, quoting Perry, 565 US at 233. While this position is consistent with how many courts have interpreted Perry,20 I agree with the majority that Perry does not dictate such a result.21
The Supreme Court rejected such a broad ruling, reasoning that its due-process identification caselaw was not intended to ensure that only reliable identifications are presented at trial because it is traditionally the jury‘s role to assess reliability subject to generally applicable rules of evidence and “other safeguards built into our adversary system . . . .” Id. at 245. Instead, the Court interpreted its caselaw as only mandating exclusion of unreliable identifications where exclusion would deter the use of unnecessarily suggestive identification procedures:
A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances . . . is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place. Alerted to the prospect that identification evidence improperly obtained may be excluded, . . . police officers will “guard against unnecessarily suggestive procedures.” This deterrence rationale is inapposite in cases . . . in which the police engaged in no improper conduct. [Id. at 241-242, quoting Manson, 432 US at 112 (citation omitted).]
Thus, Perry reasoned that “[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.” Id. at 245 (emphasis added).
The takeaway from Perry is that the federal Due Process Clause does not require a prescreening for reliability of all witness identifications, but it does require prescreening if exclusion would deter the state from using unnecessarily suggestive identification procedures that create a substantial likelihood of misidentification. Admittedly, Perry makes frequent reference to law enforcement pretrial identification procedures, which many courts have read to categorically exclude first-time-in-court identifications elicited by prosecutors. But both in constitutional and in practical terms, the line between law enforcement and prosecutors is not airtight. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972) (noting that “[w]e have held in the past that the prosecutor is the chief law enforcement officer of the county“); Kalina v Fletcher, 522 US 118, 127; 118 S Ct 502; 139 L Ed 2d 471 (1997) (characterizing the Attorney General of the United States as “the senior law enforcement official in the Nation“). To the extent Perry is properly understood to refer only to pretrial police activity, the Supreme Court‘s focus on
In my view, the deterrence rationale endorsed in Perry clearly applies with equal force to first-time trial identifications. Applying an еxclusionary rule would deter prosecutors from creating a substantial likelihood of misidentification by eliciting unreliable first-time trial identifications. It would also create an incentive for both police and prosecutors to timely employ a pretrial nonsuggestive identification procedure where the identity of the perpetrator is at issue.
Prosecutors are clearly state actors subject to constitutional and ethical limitations on their conduct, including the obligation to comply with due process. See, e.g.,
Moreover, it is logical to conclude that exclusion of such identifications at trial (and possible reversal of a conviction on appeal) would deter prosecutors from eliciting such identifications and would encourage them to advise law enforcement to timely employ pretrial nonsuggestive identification procedures. Prosecutors are not bystanders who passively present all relevant evidence to a jury. Rather, they have significant discretion as to all aspects of a criminal case, including what evidence of guilt is presented (or not presented) to the jury. See, e.g., People v Pratt, 254 Mich App 425, 429; 656 NW2d 866 (2002) (“Case law is clear that a prosecutor has the discretion to prove his case by whatever admissible evidence he chooses.“); People v Gillis, 474 Mich 105, 141 n 19; 712 NW2d 419 (2006) (noting that “[t]he exercise of judicial power over the discharge of the prosecutor‘s duties is limited to those activities or decisions by the prosecutor that are unconstitutional, illegal, or ultra
Moreover, a necessary part of a prosecutor‘s job is to communicate and coordinate with law enforcement regarding pending and future cases.26 Indeed, such coordination is expected to ensure compliance with shared constitutional obligations.27 In light of the significant prosecutorial discretion and the frequent coordination with law enforcement, “the rationale for the rule excluding identifications that are the result of unnecessarily suggestive procedures—deterrence of improper conduct by a state actor—applies equally to prosecutors.” Dickson, 322 Conn at 426; see also Colorado v Connelly, 479 US 157, 169; 107 S Ct 515; 93 L Ed 2d 473 (1986) (recognizing that “[e]xclusionary rules are . . . aimed at deterring lawless conduct by police and prosecution“) (emphasis added; quotation marks and citation omitted).
Perry is clear that the Due Process Clause does not categorically preclude a prosecutor from presenting identification testimony at trial that is of questionable reliability. Nor does it impose on trial courts the obligation to prescreen all eyewitness testimony that a prosecutor seeks to present at trial. Perry, 565 US at 243 (declining to adopt a rule that would “open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications“). Thus, not all prosecutorial conduct that elicits unreliable evidence is subject to prescreening and exclusion under the Due Process Clause.
But the situation here is narrower than that. The question is whether the prosecutor may—working in concert with the police—forgo entirely nonsuggestive pretrial identifications procedures or (as in this case) ignore the unfavorable results of a nonsuggestive pretrial identification and nonetheless elicit identification testimony of a stranger for the first time at trial. This goes beyond merely presenting unreliable evidence to a jury. Rather, this is state action that creates a substantial likelihood of misidentification, especially as applied to strangers. As Justice Appel of the Iowa Supreme Court aptly explained:
Plainly, a first-time, in-court identification is infused with state action. The state has arrested the defendant, charged the defendant with a crime, brought the defendant into court, and presented the jury with an eyewitness who knows that the state believes the defendant is the culprit. It is hard to imagine a more intensive state involvement in a suggestive lineup.
A contrary view would set a dangerous precedent and invite gamesmanship. Specifically, if the state is concerned that an eyewitness might be uncertain, it could avoid a nonsuggestive lineup or photo array, and instead present the witness in-court where the defendant is on trial. In the most suggestive environment imaginable, a court of law, where the defendant is facing potentially severe penalties, the witness is then asked to identify the defendant. The witness knows their role, does not want to disappoint, and is inclined to be helpful to the state. Even a witness who could not describe the defendant’s facial features
contemporaneously with the crime can have a sudden improvement in memory! [State v Doolin, 942 NW2d 500, 543 (Iowa, 2020) (Appel, J., dissenting).]
Like the majority, I see no meaningful difference between this scenario and the police improperly using a pretrial showup, which is precisely the type of unnecessarily suggestive procedure that the Due Process Clause deters. See United States v Morgan, 248 F Supp 3d 208, 213 (DDC, 2017) (holding that “[a]lthough the Supreme Court implied in Perry that it did not want all in-court identifications to be subject to judicial reliability screening, due process concerns require such screening for an initial in-court identification that is equivalent to a one-man showup“) (citation omitted); Crayton, 470 Mass at 241 (comparing a first-time-in-court identification to an out-of-court showup and concluding that “[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup“); Commonwealth v Collins, 470 Mass 255, 265; 21 NE3d 528 (2014) (holding that “we shall not admit [an unnecessarily suggestive showup identification] in evidence simply because it occurred in the court room rather than out of court“).28
At various times in his dissent, Justice ZAHRA characterizes the majority opinion as requiring a judicial assessment of reliability where the state did not “influence” the identification and where there was “no intentional government suggestion.” According to Justice ZAHRA, the Court is now requiring judicial prescreening where “witnesses on their own changed their mind after a prior identification, recollected their memories, and provided an in-court identification in conflict with a prior statement.” But as discussed earlier, the prosecutor—an agent of the state—plays a very active role in the decision to elicit a first-time trial identification. And it is beyond any reasonable doubt that a first-time trial identification is at least as suggestive as a pretrial showup, which generally triggers a judicial prescreening for reliability. In practice, there is no way to divorce a first-time trial identification from state action that is likely to influence a witness‘s identification and create a substantial likelihood of misidentification.
As noted earlier, Chief Justice CLEMENT argues that first-time trial identifications are categorically distinct from pretrial suggestive identification procedures because the former occur publicly in the presence of the defendant and the jury, while the latter do not. She therefore finds Perry‘s observations regarding the other avenues for challenging unreliable identifications (including the right to cross-examine) applicable to first-time trial identifications.
I recognize that the United States Supreme Court is generally circumspect in mandating exclusion as a remedy where exclusion would undermine the truth-seeking function of the criminal trial. See, e.g., Herring v United States, 555 US 135, 141-142; 129 S Ct 695; 172 L Ed 2d 496 (2009); Manson, 432 US at 112. However, this concern is minimized in this context, given that identifications are only excluded where state action creates a “substantial likelihood of misidentification.” Biggers, 409 US at 201. Unlike other contexts in which the exclusionary rule serves only a deterrent purpose (such as the Fourth Amendment), exclusion in this context may further the search for truth in criminal trials by excluding evidence that a jury is likely to give undue weight. Manson, 432 US at 112 (noting “the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability“); cf.
I therefore disagree with Justice ZAHRA that the Court‘s decision today “deprives juries of highly relevant information that can be foundational to a proper determination of truth.” Under today‘s decision, prosecutors are only deprived of the use of unreliable identifications that would be excluded from trial under preexisting caselaw if a similar unnecessarily suggestive procedure was arranged by the police before trial. It would be inappropriate and highly formalistic to base exclusion on which state actor arranged the unnecessarily suggestive identification procedure. It is worth emphasizing that reliance on unnecessarily suggestive identification procedures does not benefit anyone, because such reliance is “counterproductive to efforts to obtain the most accurate and reliable evidence.” Sammons, 505 Mich at 49 n 11; see also Berger, 295 US at 88 (“It is as much [the prosecutor‘s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.“).29
In this case, Byrd had no prior relationship with defendant before the offense at issue, and he identified defendant for the first time at trial. Accordingly, I would hold that Byrd‘s identification violated due process because this is not the rare situation in which a first-time trial identification of a stranger could possibly be sufficiently reliable to satisfy due process.
However, as the lead opinion recognizes, this does not settle the question of whether defendant is entitled to relief from his conviction. For an unpreserved constitutional error, a defendant is only entitled to relief if they can demonstrate plain error or ineffective assistance of counsel. See People v Hughes, 506 Mich 512, 523; 958 NW2d 98 (2020). The lead opinion concludes that defendant was not sufficiently prejudiced by the error to warrant relief under plain-error review and that trial counsel‘s failure to object to the identification testimony did not fall below an objective standard of reasonableness. I agree that defendant is not entitled to relief, but I reach that conclusion for different reasons.
As this Court has noted, the standards for plain error and ineffective assistance of counsel have separate elements, and “the specific error that is the focus of each standard is different.” People v Randolph, 502 Mich 1, 10-11; 917 NW2d 249 (2018). In broad strokes, the plain-error standard focuses on the trial court‘s behavior and whether the court‘s failure to sua sponte recognize the error and prevent it from occurring requires reversal. See id. at 10. By contrast, the ineffective-assistance-of-counsel analysis in this context focuses on whether trial counsel failed to act as counsel guaranteed under the Sixth Amendment when they failed to object in an attempt to prevent the error from occurring or to make a record for appellate review. Id. at 10-11. Despite this different focus, the standards overlap in many respects. As relevant to this case, under both standards a defendant must show more than an error and prejudice to be entitled to relief.
A. PLAIN ERROR
Under the plain-error standard, a defendant must show that any error was “plain.” Id. at 10. An error is “plain” if the error is so “clear or obvious” that it “is not subject to reasonable dispute.” Id. (quotation marks and citation omitted). As discussed earlier, the position the Court adopts today is the minority position among courts that have addressed this issue post-Perry. See notes 20 and 21 of this opinion. And, before the Court‘s decision today, there was no Michigan caselaw recognizing a due-process violation under these circumstances.30 Finally, as noted by the majority, in-court identifications have historically been considered a permissible part of the trial process. See, e.g., Walker v Commonwealth, 74 Va App 475, 502 & n 13; 870 SE2d 328 (2022). Accordingly, I cannot say that the trial
B. INEFFECTIVE ASSISTANCE OF COUNSEL
To demonstrate ineffective assistance of counsel, defendant must show that trial counsel‘s failure to object to the identification fell below an objective standard of reasonableness. Randolph, 502 Mich at 9. Trial counsel‘s failure to object to the identification in this case did not fall below an objective standard of reasonableness for the same reasons that the trial court did not plainly err.
I emphasize that, in some circumstances, defense counsel‘s failure to object could constitute deficient performance even if the error was not sufficiently plain for the purposes of plain error. See id. at 11-12 (noting that the “obviousness” of the error for plain-error purposes might not correlate with whether trial counsel performed deficiently). I agree with a recent decision of the Court of Appeals that there need not be “authority directly addressing” an issue for trial counsel‘s failure to object to constitute deficient performance if there are “well-established broader principles to draw from and caselaw to analogize” to the situation at hand or if there is “existing precedent that would have strongly supported” that position. People v Hughes (On Remand), 339 Mich App 99, 109; 981 NW2d 182 (2021), lv den 509 Mich 867 (2022). Relatedly, I agree that in some circumstances trial counsel‘s failure to preserve an issue for appeal via a broad objection may constitute deficient performance even if no Michigan appellate opinion has yet adopted the precise analysis that would provide defendant relief. Id. As I recently noted, “‘[t]he purpose of the appellate preservation requirement is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice.‘” People v Tyson, ___ Mich ___ (2023) (Docket No. 162968) (CAVANAGH, J., dissenting), slip order at 13, quoting People v Mayfield, 221 Mich App 656, 660 (1997) (emphasis added). Thus, reasonable counsel would be aware that a timely objection might be warranted in some circumstances to facilitate appellate review even if it is unlikely that the trial court will sustain that objection under current law.
I disagree with the lead opinion to the extent it endorses a blanket rule that it is never deficient performance if trial counsel does not lodge an objection that seeks to clarify or modify currently binding Michigan law. There may be circumstances in which Michigan law is unclear, undeveloped, or in tension with caselaw from other jurisdictions. A per se rule that trial counsel always performs effectively by accepting the status quo would undermine a defendant‘s Sixth Amendment right to counsel and the related right to a fair criminal proceeding conducted consistently with the law. Moreover, such a per se rule would inhibit the development of Michigan caselaw, especially where, as in this case, this Court has not addressed an issue and the only arguably governing caselaw is from the Court of Appeals.
But it also true that trial counsel cannot reasonably be expected to predict every new development in the law. Hughes (On Remand), 339 Mich App at 109, citing United States v Palacios, 982 F3d 920, 924 (CA 4, 2020). While I believe that trial counsel could have lodged
C. SUMMARY
In sum, considering the existing law when trial occurred, I do not believe that either the trial court or defense counsel failed in their duties by not recognizing that Byrd‘s trial identification should have been excluded. Therefore, defendant is not entitled to relief from his conviction.32 However, the Court‘s decision today clearly establishes the rule for Michigan criminal trials going forward such that the bench and the bar are now on notice that unreliable first-time trial identifications violate due process and must be excluded from trial.33
V. CONCLUSION
The Court takes two steps in the right direction today by holding that first-time trial identifications implicate due process and that, post-Lockridge, all sentences are subject to appellate review for reasonableness. I concur in these broad holdings, in all but Part II(A)(3) of the lead opinion, and in the judgment affirming defendant‘s conviction and remanding to the Court of Appeals to assess his sentence for reasonableness. However, I would hold that the identification here was insufficiently reliable to satisfy due process but that defendant is not entitled to relief from his conviction because, under the law predating this decision, the error was not plain and trial counsel did not perform deficiently by failing to object.
Megan K. Cavanagh
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 162373 DAMETRIUS BENJAMIN POSEY, Defendant-Appellant.
WELCH, J. (concurring in part, dissenting in part, and concurring in the judgment).
I agree with the results reached in Justice BOLDEN‘s lead opinion, but because I
I write separately to offer different legal reasoning about appellate review for proportionality of sentences that fall within the sentencing guidelines. As to this issue, I join Parts II(B)(1) and (2) and the remedy provided in (B)(4) of the lead opinion, but I respectfully dissent from Part II(B)(3). My focus concerns the continued viability of
Rather, I believe the Sixth Amendment constitutional defects identified in Lockridge were cured by that opinion when the guidelines were rendered advisory such that they no longer restrict a trial court‘s exercise of sentencing discretion. Thus, I do not believe a Sixth Amendment violation can be found within
I. LOCKRIDGE AND STEANHOUSE DO NOT, ON THEIR OWN, MANDATE RENDERING MCL 769.34(10) ADVISORY
The ultimate question before the Court is whether
If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant‘s sentence. [ MCL 769.34(10) (emphasis added).]
On its face, the first sentence of
To understand the limits of the Court‘s holding in Lockridge, it is necessary to review the nature of the constitutional violation that was at issue and remedied in that case. In Lockridge, this Court stated the following about whether a mandatory minimum sentencing statute violates the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and later cases after Apprendi:
Does that scheme constrain the discretion of the sentencing court by compelling an increase in the mandatory minimum sentence beyond that authorized by the jury‘s verdict alone? Michigan‘s sentencing guidelines do so to the extent that the floor of the guidelines range compels a trial judge to impose a mandatory minimum sentence beyond thаt authorized by the jury verdict. Stated differently, to the extent that [offense variables] scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e., the defendant‘s “mandatory minimum” sentence, that procedure violates the Sixth Amendment. [Lockridge, 498 Mich at 373-374.]
The majority in Lockridge specifically acknowledged that if a sentencing court had complete discretion to impose a sentence within a range that is statutorily authorized by the jury‘s verdict, then there would have been no Sixth Amendment violation. Id. at 375-377. But we determined that Michigan‘s sentencing scheme violated the Sixth Amendment because the sentencing courts were both required by statute to score variables based on facts found by the judge rather than the jury and to impose a minimum sentence within a subset of the total possible ranges that resulted from scoring those variables. Id. at 377-379. A variable score required the sentencing court to impose a higher minimum sentence.
The Lockridge remedy for this violation was to render advisory the requirement in
The lead opinion premises its decision to also render
Additionally, like Chief Justice CLEMENT in her partial dissent, I do not agree that a single footnote from Lockridge can be read to justify striking a lawfully enacted statutory provision in the absence of a constitutional infirmity specific to the provision in question. Because
When this Court decided Steanhouse, it explicitly declined to address the viability of
Based on the foregoing, I do not believe
II. THE STATE CONSTITUTIONAL RIGHT TO APPEAL IN CRIMINAL PROSECUTIONS PRECLUDES THE LEGISLATURE FROM FORECLOSING APPELLATE REVIEW OF A CRIMINAL SENTENCE
A. MICHIGAN CONSTITUTIONAL AND LEGISLATIVE AUTHORITY
The Michigan Constitution grants the Legislature the power to set the terms of a
As a result, the Legislature has long enacted statutes to create a system of indeterminate sentencing for criminal convictions, and it has also consistently delegated to the judiciary the authority to exercise discretion in setting the minimum term of imprisonment in accordance with the sentencing statutes enacted by the Legislature. See People v Boykin, 510 Mich 171, 183; 987 NW2d 58 (2022); People v Garza, 469 Mich 431, 434; 670 NW2d 662 (2003). One such sentencing statute is
When a person is convicted for the first time for committing a felony and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in [Chapter 9 of the Code of Criminal Procedure,
MCL 769.1 et seq.] and shall be stated by the judge in imposing the sentence.
Under this indeterminate sentencing scheme, the sentencing judge does not determine the exact amount of time a convicted individual will serve. Rather, the judge sets the minimum term of years and imposes the statutory maximum term of years. The Court reaffirmed last term that “[i]t is the trial court‘s duty to exercise discretion in a way that ensures the individualized sentence conforms with the principle of proportionality.” Boykin, 510 Mich at 183. But whether convicted individuals will remain incarcerated after completing their minimum sentence is left to the parole board.
B. JUDICIAL REVIEW OF SENTENCING—PEOPLE v COLES
It is undisputable that a certain amount of judicial discretion is inherent in a system that uses an indeterminate sentencing scheme. Prior to 1983, the exercise of this judicial discretion had few limitations in Michigan. Appellate courts had been reviewing certain aspects of a trial court‘s exercise of sentencing discretion in piecemeal fashion, but, when initially faced with the “strong case” for “appellate review of sentencing[s],” the Court was “not . . . yet prepared to take that step.” People v Burton, 396 Mich 238, 243; 240 NW2d 239 (1976). In 1983, however, this Court formally held that a convicted individual was
Coles did not overrule Burton but instead took the next step that Burton refused to take, holding that appellate review of sentences was required. The Court acknowledged in
Coles that the Court‘s “general review power is grounded in
[A] sentence following a conviction is as much a part of the final judgment of the trial court as is the conviction itself. Since the Court of Appeals has jurisdiction to hear appeals from final judgments of trial courts [under
MCL 600.308 ], whether the appeal be one to which a defendant is absolutely entitled or one in which a defendant must apply for leave to appeal, the Court of Appeals has jurisdiction to hear appeals involving a review of a defendant‘s sentence. We find no sound reason for interpreting the applicable constitutional and statutory provisions as carving out an exception to the right of appeal regarding sentencing matters. None of those relevant provisions limit the particular issues subject to appellate review. We therefore conclude that the foregoing constitutional and statutory authority vest appellate courts with the jurisdiction to review all sentencing issues. [Coles, 417 Mich at 535 (emphasis added).]
Coles further held that appellate review of sentencing discretion did not offend separation of powers principles. Id. at 538-540.
Coles grounded its holding both in public policy and the Court‘s general powers under
We do not agree that the constitutionally guaranteed right of appeal mandates review of the trial court‘s exercise of discretion in sentencing in order to comport with due process of law. The expansion of the scope of appellate review of sentencing is a matter of public policy within this Court‘s power to adopt; it is not constitutionally required. [Id.]
Nothing in Coles suggests that this statement was necessary to resolution of the legal dispute at hand, considering the Coles Court‘s earlier conclusion that its general power of review granted it authority to review the exercise of sentencing discretion. Stated differently, it was not necessary for Coles to decide whether due process or the state constitutional right to appeal also required appellate courts to
Coles contained limited analysis as to why a convicted individual‘s state constitutional right to appeal under
sentencing guidelines nor the previously mandatory (but now advisory) sentencing guidelines had been implemented. In other words, Coles was not a case challenging sentences under the sentencing guidelines because they did not yet exist. Given the foregoing, I do not believe Coles in any way binds this Court as to whether
Even if we treat Coles‘s statement—that appellate review of sentences is not rooted in due process—as binding precedent (as opposed to dicta), the state constitutional right to appeal is independent from any due process rights implicated in a criminal prosecution. Thus, the most Coles can logically stand for is that the lack of an ability to seek appellate review of the exercise of sentencing discretion does not offend constitutionally guaranteed due process requirements. But it still offends the clear language of Michigan‘s Constitution. If a judgment of sentence is just as much a part of the final judgment in a criminal case as the conviction itself, Coles, 417 Mich at 535, then I see no avenue for denying a constitutional right to appeal that sentence under
C. THE RIGHT TO SEEK APPELLATE REVIEW FOLLOWING A CRIMINAL PROSECUTION
I am convinced that a more thorough review of the state constitutional right to appeal in criminal prosecutions and subsequent developments in this Court‘s jurisprudence compel us to step through the door that Coles left open. To begin,
Prior to the 1994 amendment,
At the 1961–1962 Constitutional Convention, the official committee comment concerning the addition of the right to appeal following criminal prosecutions provided as follows:
The guarantee of a categorical right of appeal in criminal cases the committee believes to be consistent with the recent trend of opinion in the federal courts and, in any event, to be sound and fair procedural practice. As one of the members of the committee said, “It is not merely the consequence or inconsequence of the punishment which may be imposed upon a defendant upon conviction; there is also the fact that a conviction for any offense, no matter how trivial it may be, nowadays constitutes a blot upon an individual‘s record which may be of subsequent significance with respect to employment, government service, or merely a person‘s standing and reputation in the community at large.” We desire to grant the status of a categorical constitutional right to at least one appeal in a criminal case. We do not intend to restrict the legislature in its power to provide by law for additional appeals. [1 Official Record, Constitutional Convention 1961, p 469.]
There was debate at the convention about whether this right should be enshrined in the state Constitution, with some delegates raising concerns about the burden such a right would place on the taxpayers and court dockets. But this debate did not contemplate excluding from this right of appeal the review of a sentence imposed following a conviction. See 1 Official Record, Constitutional Convention 1961, pp 564-568.
As originally ratified by the electorate of Michigan, this new personal right to appeal in criminal prosecutions—a right that did not exist under the
and that lacks a counterpart in the United States Constitution—applied equally to those convicted following a trial and those who entered a plea. Then, in 1994, the electorate approved Proposal B—a legislatively proposed constitutional amendment to limit those who enter a plea in a criminal matter to an appeal by leave of the court—enshrining the current text of
Considering this history, it is surprising that the Legislature has claimed the authority to make exceptions to the substance of this constitutional right to appeal. Even before the sentencing guidelines were enacted, Coles recognized that “[t]he judicial power to exercise discretion in the imposition of sentences is thus an integral part of the legislative scheme of indeterminate sentencing, and it will always remain that unless removed or curtailed by the Legislature.” Coles, 417 Mich at 539. Stated differently, so long as the Legislature chooses to provide for a legislative system of indeterminate sentencing that is to be administered at the discretion of the judiciary, the judiciary will have a critical role to play both in imposing those sentences at the trial court level and ensuring that trial courts do not abuse the discretionary authority that the Legislature has delegated.
statute would not permit an appellate court to review and vacate a defendant‘s sentence on the basis that the sentence violates the Michigan or United States Constitution. As the Court of Appeals recognized in this case, ”
It is well established that the Legislature has no authority to take away a right that the Constitution explicitly provides to the People. See, e.g., Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 374; 663 NW2d 436 (2003) (“[N]o act of the Legislature can take away what the Constitution has given.“); Sharp v Lansing, 464 Mich 792, 810; 629 NW2d 873 (2001) (“[I]t is axiomatic that the Legislature cannot grant a license to state and local governmental actors to violate the Michigan Constitution. In other words, the Legislature cannot so ‘trump’ the Michigan Constitution.“).10
D. THE LEGISLATURE CANNOT ELIMINATE A CONSTITUTIONALLY PROVIDED RIGHT TO APPEAL
More recent precedent from this Court hammers home the point that the right to judicial review cannot be eliminated by statute. In Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich 83; 803 NW2d 674 (2011), this Court considered whether a statutory provision—
While Naftaly was a civil case involving the constitutional right to appeal quasi-judicial administrative decisions, the logic of that decision applies analogously to the issue here. This Court has previously concluded that “a sentence following a conviction is as much a part of the final judgment of the trial court as is the conviction itself.” Coles, 417 Mich at 535. The authority of appellate courts to hear appeals from a criminal conviction is partially set by statute, but the right of a convicted individual to appeal is mandated by
Moreover, while
Although Coles stated that the initial recognition of the right to appeal a trial court‘s exercise of sentencing discretion was not required by
Just as the Court took a step in Coles that was explicitly rejected in Burton without overruling its prior decision, I would do the same here. The Court‘s reasoning in Naftaly compels the conclusion that there are substantial constitutional limitations on how the Legislature may constrain a convicted individual‘s constitutionally mandated appellate
rights in all criminal prosecutions. If applied as written,
Just as the Legislature does not have authority to preclude a defendant from arguing that their within-guidelines sentence is unconstitutional, see Powell, 278 Mich App at 323; Conley, 270 Mich App at 314-317, the Legislature does not have authority to preclude appellate review of a sentencing court‘s exercise of discretion in setting the minimum term of imprisonment under its chosen indeterminate sentencing scheme.12
while the Legislature may lawfully mandate a specific standard of review that appellate courts must apply when reviewing the exercise of sentencing discretion and impose general procedural rules under
III. REMEDY—AN APPELLATE PRESUMPTION OF PROPORTIONALITY
Given my conclusion that
As this Court did in both Naftaly, 489 Mich at 95-97, and Lockridge, 498 Mich at 389-392, the Court must determine whether
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
The statute at issue in this case provides as follows:
If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant‘s sentence. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals. [
MCL 769.34(10) .]
The second sentence of
Despite its constitutional flaws,
the intent of the Legislature to give no weight to the imposition of a within-guidelines sentence. A rebuttable appellate presumption of proportionality is a remedy that recognizes the Legislature‘s intent while also being consistent with this Court‘s holdings in Lockridge and Steanhouse that the guidelines remain highly relevant and must be scored and consulted when crafting a sentence. Accordingly, I join Part II(B)(4) of the lead opinion and agree with the remedy of severing the first sentence of
IV. CONCLUSION
Although I do not agree with the lead opinion‘s conclusion that
Elizabeth M. Welch
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 162373
DAMETRIUS BENJAMIN POSEY,
Defendant-Appellant.
CLEMENT, C.J. (concurring in part and dissenting in part).
I respectfully dissent. Although I agree that defendant is not entitled to relief for his due-process argument regarding the identification procedure, I believe that the majority‘s decision today unduly expands our due-process jurisprudence regarding identification procedures from cases involving suggestive pretrial identification procedures to first-time in-court identifications without precedential support or sufficient justification otherwise. I also disagree that this Court‘s decision rendering our sentencing guidelines advisory in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), is incompatible with the requirement in
I. DUE PROCESS AND FIRST-TIME-IN-COURT IDENTIFICATIONS
In the present case, a witness who previously failed to identify defendant in a pretrial photographic array identified defendant for the first time during his trial testimony. The
majority holds that this identification violated defendant‘s due-process rights. But the precedent relied on by the majority to come to this conclusion is conditioned on the existence of a suggestive pretrial identification, which did not occur in this case. Further, first-time-in-court identifications are subject to the myriad constitutional and statutory protections available to a defendant at trial, and these safeguards prevent the admission of such an identification from rising to the level of a due-process violation absent unusual circumstances.
A. FACTUAL BACKGROUND
I do not dispute the facts as laid forth by the lead opinion but reiterate here the pertinent factual background of the identification at issue.
Defendant‘s convictions arise from an October 2017 shooting outside the Super X Market in Detroit. Victims Terrence Byrd
The police investigation quickly focused on defendant and Sanchez Quinn as the suspected assailants when the two were discovered being treated for gunshot wounds at local area hospitals. Quinn initially denied being at the scene, but then admitted to having been present. Defendant provided a false name and claimed that he had been shot by two men at a location on the other side of town.
The police separately presented Byrd and Scott with two photographic arrays within two days of the shooting. Byrd chose one individual from each array and identified them
as the assailants. Neither of the chosen individuals was defendant or Quinn, and law enforcement informed Byrd of this fact. Scott identified defendant from the photographic arrays.
Defendant was eventually charged with two counts of assault with intent to commit murder, two counts of assault with intent to do great bodily harm less than murder, carrying a concealed weapon, arming oneself with a weapon with unlawful intent, being a felon in possession of a firearm, and six counts of possession of a firearm during the commission of a felony. At trial, Byrd—who had failed to identify defendant in the photographic arrays—identified defendant as one of the shooters, but Scott—who had identified defendant in the photographic arrays—did not identify defendant as one of the shooters. On cross-examination and in closing arguments, defense counsel emphasized Byrd‘s failure to identify defendant shortly after the shooting in the photographic arrays and argued that Byrd‘s in-court identification was based only on media coverage and the charges against defendant rather than any true memory of defendant at the scene. Ultimately, the jury found defendant guilty as charged.
Defendant now argues that Byrd‘s in-court identification of defendant violated his due-process rights such that he is entitled to a new trial.
B. LEGAL BACKGROUND
Both the United States and Michigan Constitutions provide that no person will be deprived of life, liberty, or property, without the due process of law.
admission violates fundamental conceptions of justice.” Dowling v United States, 493 US 342, 352; 110 S Ct 668; 107 L Ed 2d 708 (1990) (quotation marks and citation omitted). This due-process limitation on the admission of evidence is “very narrowly” interpreted, in part to prevent the constitutional protections from being arbitrarily defined by any one judge‘s or court‘s idea of fairness. Id. at 352-353. Evidence that does not rise to this level of extreme unfairness is otherwise regulated by state and federal rules regarding the admissibility of evidence and through constitutional safeguards such as the right to counsel, compulsory process, confrontation of witnesses, and cross-examination of witnesses, which “afford[] the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.” Perry v New Hampshire, 565 US 228, 237; 132 S Ct 716; 181 L Ed 2d 694 (2012).
The United States Supreme Court has recognized that the admission of a witness‘s identification of a defendant can rise
only person who participated in both lineups, and the police arranged an eventual one-on-one showup between the defendant and the witness). These identification procedures lead to a substantial likelihood of misidentification because their “suggestive elements . . . [make] it all but inevitable” that the witness will identify the defendant. Id. at 443. Further, these identifications are largely insulated from later challenge, because “there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations” later at trial. United States v Wade, 388 US 218, 230; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). This often leaves defense counsel unable to effectively challenge the identification procedure at trial, so “the jury‘s choice is between the accused‘s unsupported version and that of the police officers present.” Id. at 231.
Nonetheless, if the totality of the circumstances surrounding the identification demonstrates that it “was reliable even though the confrontation procedure was suggestive,” the identification may still be admitted. Id. at 199. Among the circumstances to be considered are (1) “the opportunity of the witness to view the criminal at the time of the crime“; (2) “the witness’ degree of attention“; (3) “the accuracy of the witness’ prior description of the criminal“; (4) “the level of certainty demonstrated by the witness at the confrontation“; and (5) “the length of time between the crime and the confrontation.” Biggers, 409 US at 199-200.
When a pretrial identification is excluded under Biggers, a question may remain whether the witness may nonetheless be allowed to identify the defendant at trial. This Court has previously recognized that an identification derived from a suggestive pretrial procedure “may unduly influence any subsequent identification” because the witness is unlikely to change that selection once made. People v Carter, 415 Mich 558, 598; 330 NW2d 314 (1982),
overruled on other grounds People v Sturgis, 427 Mich 392, 410 n 6 (1986). See also Wade, 388 US at 229 (“[I]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.“) (quotation marks and citation omitted). Given the influence of a suggestive pretrial identification procedure, a subsequent in-court identification by the same witness is only permissible if the prosecution can prove that a basis for the in-court identification exists that is untainted by the suggestive pretrial identification procedure. Kurylczyk, 443 Mich at 303. To determine whether such an independent basis exists, the court should consider: (1)
Particularly relevant to the present case is the United States Supreme Court‘s decision in Perry, in which the Court considered whether the above-described framework applies to all identifications resulting from suggestive procedures or only those identifications whose suggestive procedures were arranged by law enforcement. Perry,
565 US at 231-232. In Perry, law enforcement responded to a complaint from an apartment-complex resident that a Black man was attempting to break into vehicles in the parking lot. Id. at 233. A responding officer discovered the defendant in the parking lot with two car-stereo amplifiers; the defendant claimed that he had found them in the parking lot. Id. As the defendant was being questioned at the scene by the first officer, a second officer went to the apartment of another resident, Nubia Blandon, who claimed to have seen someone breaking into her neighbor‘s car. Id. at 234. Blandon reported that she had seen “a tall, African-American man roaming the parking lot and looking into cars“; when asked for a more detailed description of the man, Blandon “pointed to her kitchen window and said the person she saw breaking into [her neighbor‘s] car was standing in the parking lot, next to the police officer.” Id. Blandon was unable to identify the defendant in a photographic array arranged one month later. Id.
Before trial, the defendant moved to suppress Blandon‘s identification from the evening of the defendant‘s arrest, arguing that under Biggers the identification procedure—effectively a one-person showup—was so suggestive that it led to a substantial likelihood of misidentification and that the totality of the circumstances did not otherwise render the identification sufficiently reliable to be admissible. Id. at 234-235. The state court rejected the defendant‘s motion, reasoning that the Biggers framework applied only where law enforcement created the unnecessarily suggestive identification procedure. Id. at 235. Because law enforcement had not manufactured the showup at issue, the state court concluded that the admission of the identification did not violate due process.
On appeal, the United States Supreme Court agreed, holding that due-process concerns arise only when the suggestive identification procedure is manufactured by law
enforcement. Id. at 232-233. In reviewing Biggers and its progeny, the Court concluded that each case involved improper police arrangement of the identification procedure. Id. at 241-242. See also, e.g., Wade, 388 US at 228 (referring to the confrontation “compelled by the State“); Manson v Brathwaite, 432 US 98, 112; 97 S Ct 2243; 53 L Ed 2d 140 (1977) (reasoning that a primary aim of the Biggers framework is to deter police from using unnecessarily suggestive procedures “for fear that their actions will lead to the exclusion of identifications as unreliable“). The Court further reasoned that applying the Biggers framework to suggestive identifications
C. APPLICATION
Today, the lead opinion assumes that Byrd‘s first-time-in-court identification of defendant as one of his assailants constituted plain error but holds that defendant is not entitled to relief because he has not proved that the error was prejudicial.1 While I agree that defendant is not entitled to relief, I disagree that plain error occurred.
To reach the assumption that plain error occurred, the lead opinion has expanded the Biggers framework to apply to first-time-in-court identifications2 without any precedential support.3 Although Biggers refers generally to “suggestive identification procedures,” Biggers and its progeny all involve the admission of suggestive pretrial identifications—or in-court identifications following suggestive pretrial identifications. See, e.g., Biggers, 409 US at 196-198; Brathwaite, 432 US at 101; Wade, 388 US at 220;
Perry, 565 US 234-235; Kurylczyk, 443 Mich at 303-304; Kachar, 400 Mich at 85-86. Here, the challenged identification is the in-court identification by Byrd, not the pretrial photographic arrays. Further, in Perry, the United States Supreme Court affirmed that the Biggers framework applies only where law enforcement arranged for the suggestive pretrial identification. Perry, 565 US at 232-233. Here, the police did not arrange the challenged identification. The majority argues that Biggers should apply nonetheless by attempting to limit this rule from Perry to only pretrial identifications, but the majority fails to recognize that the precedent it applies exclusively involves suggestive pretrial identifications, like Perry. If Perry is meaningfully distinguishable because it applies to pretrial identifications alone, so is all the caselaw on which the majority relies.4
In support of applying the Biggers framework to the first-time-in-court identification offered by Byrd, the majority summarily quotes Brathwaite for the proposition that “reliability is the linchpin in determining the admissibility of identification testimony . . . .” Brathwaite, 432 US at 114. But the majority here makes the same mistake that the defendant in Perry made: it has “removed [the Court‘s] statement in
Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of [the] opinion does not bear.” Perry, 565 US at 241. As emphasized in Perry, “the Brathwaite Court‘s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure.” Id. This statement does not support applying a reliability framework outside the context of a suggestive pretrial identification arranged by law enforcement.
To the extent that the majority opinion can be interpreted as an argument that Biggers should be broadened to first-time-in-court identifications because of their suggestive nature, the caselaw does not support such an expansion. “[T]he jury, not the judge, traditionally determines the reliability of evidence,” Perry, 565 US at 245, and only that evidence whose admission “is so extremely unfair that its admission violates ‘fundamental conceptions of justice,’ ” Dowling, 493 US at 352 (citation omitted), is subject to a judicial reliability assessment. The justification offered in categorizing suggestive pretrial identifications as this type of “extremely unfair” evidence is not applicable to first-time-in-court identifications. Pretrial lineups, photographic arrays, and showups often occur in secrecy, which causes “a gap in our knowledge as to what in fact goes on” at the identification, making it difficult for a defendant to “reconstruct the manner and mode” of the identification at trial in order to effectively challenge it. Wade, 388 US at 230 (quotation marks and citation
But first-time-in-court identifications occur publicly, with both the defendant and counsel present. This means that the defendant is fully aware of the manner and mode in
which the witness was asked to identify the assailant and is alert for any prejudicial conditions. Defendants also have a constitutional right to confront and cross-examine identifying witnesses and to an effective attorney‘s assistance in doing so. Perry, 565 US at 245-246. In addition, defendants challenging a first-time-in-court identification need not testify themselves, as might be required when challenging a pretrial identification procedure. See Wade, 388 US at 230. And because the jury has witnessed the first-time identification and subsequent challenge to that identification, the jury has a more robust decision than a choice merely “between the accused‘s unsupported version [of the identification] and that of the police officers present.” Id. Further, a defendant faced with a first-time-in-court identification may request jury instructions or present expert witness testimony explaining the weaknesses inherent in eyewitness identification. Perry, 565 US at 246-247. The defendant may also challenge the admissibility of the identification as incompatible with federal or state rules of evidence—for example, if the probative value of the identification is outweighed by its prejudicial effect or potential for misleading the jury. Id. at 247. Considering the protections available to a defendant at trial, the admission of a first-time-in-court identification does not violate our fundamental conceptions of justice such that a judicial reliability assessment is necessary before its admission. See Dowling, 493 US at 352. This conclusion is consistent with the conclusions of the federal appeals courts that have considered the issue. See, e.g., Lee v Foster, 750 F3d 687, 691 (CA 7, 2014) (noting that “a defendant‘s mere presence at the defense table is not enough to establish a violation of due process“) (quotation marks and citation omitted); United States v Davis, 103 F3d 660, 670 (CA 8, 1996) (rejeсting the defendant‘s argument that the in-court identification procedure was impermissibly suggestive under Biggers); United States v Domina, 784 F2d 1361, 1369 (CA 9, 1986)
(“There is no constitutional entitlement to an in-court line-up or other particular methods of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room.“).5
I dispute neither the potential fallibility of eyewitness evidence nor the importance that is often placed on eyewitness evidence by juries. See Perry, 565 US at 244-245. However, “the potential unreliability of a type of evidence does not alone render its introduction at the defendant‘s trial fundamentally unfair.” Id. at 246. In the absence of the significant and irremediable unfairness in pretrial suggestive identifications, I do not believe that first-time-in-court identifications are the type of evidence whose admission is violative of our fundamental conceptions of justice such that it justifies thieving the reliability analysis from the jury.6 Today, it appears that the majority has done what the
United States Supreme Court has repeatedly cautioned against: it has substituted its own notions of fairness for those fundamental conceptions of justice and, in so doing, eroded the province of the jury. See Dowling, 493 US at 352-353. Because I believe that the reliability of Byrd‘s identification was properly submitted to the jury, I would have affirmed the Court of Appeals decision below that no error occurred. Even if I agreed with the majority‘s new rule, I would have found that the trial court did not plainly err by failing to apply a rule that did not exist at the time of trial, and so would have held that defendant still could not establish entitlement to relief.7
II. CONSTITUTIONALITY OF MCL 769.34(10)
Although the lead opinion assumes that the admission of Byrd‘s identification was erroneous, the majority holds that defendant is not entitled to relief on that ground because he has not proven prejudice, and so the majority also addresses defendant‘s sentencing argument regarding the constitutionality of
The majority also notes that in Perry, the defendant “was put on notice of the possibility that the witness would likely identify the defendant at trial.” Ante at 14 n 5. But defendant was presumably aware that Byrd would testify,
in determining the defendant‘s sentence.” Defendant asserts that this provision is incompatible with this Court‘s decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), wherein this Court rendered the sentencing guidelines advisory to cure a constitutional violation. To assess defendant‘s challenge, it is necessary to understand the historical underpinnings and the federal counterpart of the Lockridge decision.
A. LOCKRIDGE AND THE MOVEMENT TO ADVISORY SENTENCING GUIDELINES
The
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation . . . .
See also
a reasonable doubt.” See also Jones, 526 US at 243 n 6 (“[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.“). Later, in Alleyne v United States, 570 US 99, 103; 133 S Ct 2151; 186 L Ed 2d 314 (2013), the Supreme Court extended this ruling to findings that increase the mandatory minimum sentence for a crime, holding that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.”
This interpretation of the right to jury trial, originally developed in the context of sentencing enhancement laws, had significant consequences for the federal—and later, this state‘s—sentencing guidelines scheme. Both the federal and state sentencing guidelines schemes provided a sentencing range based on the trial court‘s assessment of offender and offense characteristics, and the trial courts were generally required to adhere to that range. See Koon v United States, 518 US 81, 92; 116 S Ct 2035; 135 L Ed 2d 392 (1996); People v Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). But in United States v Booker, 543 US 220, 227; 125 S Ct 738; 160 L Ed 2d 621 (2005), the United States Supreme Court held that this process ran afoul of the Apprendi rule. When the trial court made additional factual findings about the defendant and the offense to calculate the mandatory sentencing guidelines range, it increased the defendant‘s sentence beyond what was authorized by the jury verdict alone. Id. at 232-233. In other words, the application of the sentencing guidelines caused a defendant‘s sentence to be based on facts not found beyond a reasonable doubt by the jury or admitted by the defendant, violating the dеfendant‘s Sixth Amendment rights. See id.
As applied in Booker, the defendant was convicted of possessing at least 50 grams of crack cocaine based on the jury‘s determination that he possessed approximately 90 grams of crack cocaine, which authorized a sentence of 210 to 262 months’ imprisonment under the guidelines. Id. at 235. But at sentencing, the judge found by a preponderance of the evidence that the defendant had possessed a substantial, additional amount of crack
In fashioning a remedy for the unconstitutional, mandatory application of the sentencing guidelines, the Court considered and rejected imposing a requirement that the jury make all factual findings relevant to the guidelines. It reasoned that such a requirement would fundamentally remake the manner by which jury trials are administered. Instead, the Court chose a more limited remedy of rendering the sentencing guidelines advisory. To do so, the Court severed and excised two statutory provisions:
the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see
[18 USC 3553(b)(1)] , and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see[18 US 3742(e)] . [Id. at 259.]
The Court reasoned that this remedy not only caused less disruption to the criminal justice system than the suggested alternative but was also most consistent with the sentencing guidelines’ goal of increasing sentencing uniformity. Id. at 249-258, 264-265. Post-Booker, federal trial courts remain required to calculate and consult the sentencing
guidelines range, but they have the discretion to sentence outside the guidelines. Id. at 259. And on appellate review, sentences are reviewed for reasonableness. Id. at 264.
This Court reached a similar conclusion regarding Michigan‘s sentencing guidelines scheme in Lockridge. Because the sentencing guidelines caused a defendant‘s minimum sentence to increase on the basis of facts found by a preponderance of the evidence by the judge at sentencing and not beyond a reasonable doubt by a jury, this Court held that the scheme violated Alleyne and the Sixth Amendment. Lockridge, 498 Mich at 374, 387-389. Like the United States Supreme Court, this Court chose to render the sentencing guidelines advisory. Id. at 391 (agreeing to “Booker-ize the Michigan sentencing guidelines“). Specifically, this Court held that the mandatory “shall” language in
at 392. This Court also summarily adopted the “reasonableness” standard from Booker as
B. CONSTITUTIONAL CHALLENGE TO MCL 769.34(10)
Lockridge fundamentally changed Michigan‘s sentencing jurisprudence. Like most watershed cases, it was followed by a series of cases that sought to further refine its holdings and application. See, e.g., People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017) (wherein this Court defined the “reasonableness” standard for appellate sentence review as “whether the trial court abused its discretion by violating ‘the principle of proportionality’ set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender’ “); People v Barnes, 502 Mich 265, 274; 917 NW2d 577 (2018) (wherein this Court determined that Lockridge would only be given prospective application on collateral review). However, until today, this Court has never addressed whether the directive in
The Court of Appeals has done so in People v Schrauben, 314 Mich App 181; 886 NW2d 173 (2016). The central issue in Schrauben concerned whether the trial court erred by declining to sentence the defendant to an intermediate sentence, as required by the statutory language in
provisions advisory only. Id. at 195-196. Accordingly, the trial court was allowed to choose not to impose an intermediate sentence, and the Court further reasoned that it was required by
Today, the lead opinion reverses Schrauben and holds that
Although
error at issue in Lockridge. Compare with Lockridge, 498 Mich at 364-365 (wherein this Court struck down a statutory provision because it referred to “the requirement . . . that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure“). Recall that the constitutional infirmity of the mandatory sentencing guidelines, as this Court emphasized, was that they “require[d] judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables . . . that mandatorily increase the floor of the guidelines minimum sentence range . . . .” Lockridge, 498 Mich at 364. By rendering the guidelines advisory, judicial fact-finding no longer mandatorily increased the minimum sentence range, and so the Sixth Amendment violation was cured. Id.; see also Apprendi, 530 US at 481; Booker, 543 US at 233. But nothing in
The lead opinion presumes that by limiting the scope of appeal,
mandatory nature of the guidelines,
This conclusion is further bolstered by the United States Supreme Court‘s decision in Rita v United States, 551 US 338, 352-356; 127 S Ct 2456; 168 L Ed 2d 203 (2007), where the Court condoned the use of greater scrutiny for departure sentences. In that case, the Court held that appellate courts could properly apply a “presumption of reasonableness” to within-guidelines sentences. Id. at 347. In so doing, the Court expressly addressed and rejected the argument that the application of a presumption of reasonableness to within-guidelines sentences would create an improper incentive for trial courts to impose within-guidelines sentences. The Court first reflected on the importance and values of a consistent guidelines system, and continued:
[The defendant] may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. It sought a Guidelines system that would bring about greater fairness in sentencing through increased uniformity. The fact that the presumption might help achieve these
establishing appellate review, it seems germane whether this review stems from and is shaped by constitutional requirements.
In addition, other existing caselaw already provides that
congressional goals does not provide cause for holding the presumption unlawful as long as the presumption remains constitutional. And, given our case law, we cannot conclude that the presumption itself violates the Sixth Amendment. [Id. at 354.]
See also id. at 352 (explaining that even if the standard “increases the likelihood” that a within-guidelines sentence is imposed, the Sixth Amendment is not violated). The Court also emphasized that the presumption of reasonableness for within-guidelines sentences “does not require the sentencing judge to impose that sentence,” and “[s]till less does it prohibit the sentencing judge” from imposing a
The Court made similar remarks in Gall v United States, 552 US 38; 128 S Ct 586; 169 L Ed 2d 445 (2007), wherein it rejeсted a federal circuit court of appeals’ requirement that departure sentences be justified on appeal in proportion to the deviation from the recommended sentence range. Id. at 47. Specifically, the Court held that extraordinary circumstances need not exist to justify a departure sentence and that, although an appellate court could generally consider the deviation and extent of deviation from the guidelines range, no “rigid mathematical formula” could be applied to determine the justification required for such deviation. Id. The Court reasoned that the standards being applied in that federal circuit came “too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” Id. In so holding, the Court‘s focus was on the subversion of the standard of appellate review established in Booker, not any of the potential “incentives” created by applying greater appellate scrutiny to departure sentences. In fact, the Court in Gall repeatedly stated that appellate courts can
and should apply closer scrutiny to sentences outside the guidelines range, stating that it was “uncontroversial that a major departure should be supported by a more significant justification than a minor one,” id. at 50, and that sentencing courts “must give serious consideration to the extent of any departure from the Guidelines,” id. at 46.
Like the appellate standard approved in Rita,
The lead opinion also argues that its conclusion that Lockridge required the excision of
abused its sentencing discretion in the context of the judicial sentencing guidelines (i.e., the precursor to the legislative sentencing guidelines at issue in Lockridge). Milbourn, 435 Mich at 634. The Court reasoned that the trial courts appropriately exercised their discretion by assuring that the sentence imposed was proportionate to “the nature of the offense
In adopting that standard, this Court rejected the lower court‘s argument that such a standard could not be reconciled with the United States Supreme Court‘s opinion in Gall. Recall that in Gall, the Court held that a federal circuit‘s requirement that departure sentences be justified on appeal in proportion to their deviation from the recommended sentence range came “too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” Gall, 552 US at 47. This Court rejected the argument that defining “reasonableness” by the Milbourn proportionality standard created a similar presumption of unreasonableness for departure sentences, but expressly disavowed any dicta in our prior proportionality caselaw that implied that departures from the sentencing guidelines range were more likely to be unreasonable. Steanhouse, 500 Mich 474-475. In that context, this Court then reiterated its statement from Milbourn that ” ‘the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range[.]’ ” Id. at 475, quoting Milbourn, 435 Mich at 661.
The lead opinion claims that if this Court believed that departure and within-guidelines sentences should be treated differently on appeal, it would not have included the
“or adheres to” language from Milbourn. But in doing so, the lead opinion ignores the context of the Milbourn quotation as used in Steanhouse.12 This Court used that quotation in the context of its response to claims that the proportionality standard would create an unlawful presumption of unreasonableness for departure sentences. Steanhouse, 500 Mich at 475. The purpose of this language was to emphasize that departure sentences should be reviewed for reasonableness as informed by the principle of proportionality—as opposed to departure sentences being assumed to be unreasonable or an abuse of discretion. While the specific words “or adheres to” could have been omitted and the same purpose achieved, there is no indication in Steanhouse that the quotation was anything more than a response to the argument regarding an unreasonableness presumption, let alone a holding or even an implication that
contributed to the inclusion of the words “or adheres to” in the quotation at issue. But notably, the judicial sentencing guidelines at issue in Milbourn, unlike the legislative sentencing guidelines at issue in Lockridge, did not contain an appellate bar to review of within-guidelines sentences. Accordingly, Milbourn offers no guidance on the continued viability of
The lead opinion also argues that its conclusion is further justified because “the Court of Appeals has attempted to apply
In sum,
III. CONCLUSION
Because I believe that a judicial reliability assessment is not required for first-time in-court identifications, I disagree with the majority‘s application of Biggers to Byrd‘s identification but agree with its ultimate conclusion that defendant is not entitled to relief on that ground. I also disagree with the conclusion that
Elizabeth T. Clement
Brian K. Zahra
David F. Viviano
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 162373 DAMETRIUS BENJAMIN POSEY, Defendant-Appellant.
ZAHRA, J. (concurring in part and dissenting in part).
I join the separate opinion authored by Chief Justice CLEMENT. Specifically, I agree that
These cases are extraordinary and creative expansions of constitutional law in favor of the accused, all of which undermine Michigan‘s longstanding public policy in favor of finality of criminal judgments. See People v Carpentier, 446 Mich 19, 29; 521 NW2d 195 (1994) (“[B]oth the Michigan judiciary singularly, and the citizenry whose collective rights and protections it is obligated to protect, have a compelling interest in championing the finality of criminal judgments.“); Edwards v Vannoy, 593 US ___, ___; 141 S Ct 1547, 1554; 209 L Ed 2d 651 (2021) (explaining that “the principle of finality” is “essential to the operation of our criminal justice system“) (quotation marks and citation omitted); Mackey v United States, 401 US 667, 691; 91 S Ct 1160; 28 L Ed 2d 404 (1971) (Harlan, J., concurring in part) (“No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.“).
A majority of this Court rewrites the law of criminal procedure for in-court identification in a way that will have a substantial negative impact on our criminal justice system for years to come. There is no dispute in this case that neither the prosecution nor the police took any action to force, pressure, compel, or influence the witness‘s testimony in this case. The police, by all accounts, performed a regular photo lineup prior to the trial, and the prosecution called the witnesses to the stand in the regular course of trial. There is no evidence of abnormality in the administration of the trial, judicial oversight, jury observation, or cross-examination. Defendant does not allege any form of prosecutorial misconduct. Instead, defendant objects to a witness‘s in-court identification, which conflicted with the witness‘s prior statement of identification.
For the first time in the history of Michigan, this Court holds that certain in-court identifications, lacking any form of government coercion, pressure, or misconduct, cannot be admitted for jury consideration. To do so, the majority concludes that the prosecution calling a witness for in-court testimony, without more, is unnecessarily suggestive. Under this new rule, if the government does not pursue and obtain an identification of the defendant before trial, that witness is barred from providing on-point testimony on a perpetrator‘s identification at trial unless the identification is otherwise “reliable.”2 Moving forward, if a witness did not identify the defendant in recorded pretrial statements or lineups, the identification is subject to exclusion under the Due Process Clause.3 Of course,
cases.5 This is a double standard that will have serious consequences in the administration of criminal justice.6
The Court‘s decision deprives juries of highly relevant information that can be foundational to a proper determination of truth. The Founders of our nation entrusted the prudence and morals of jurors to review in-court testimony and make determinations of guilt or innocence. Yet a majority of this Court apparently does not trust this foundational process of criminal adjudication, takes up the position of fact-finder, and incorporates its own view of credibility into the Due Process Clause. According to the majority, the Constitution mandates that a court, not the jurors who observed the witness and reviewed the evidence firsthand, must decide what relevant evidence is valuable for determining culpability. But no such mandate is contained in the rules of evidence, let alone the Constitution.
For centuries, criminal trials have been conducted by summoning witnesses to testify and subjecting their statements to cross-examination. At the time the Constitution was ratified, there was no right to criminal discovery, let alone a right to
case,”8 and out of concern of
valuable exculpatory evidence. Further, the rights were recognized in an interest of allowing the defendant to effectively present evidence to a jury and cross-examine witnesses testifying before them, not to prevent the jury from considering the evidence altogether.10 Other constitutional protections were recognized for government-led interrogations of the defendant11 and misconduct by government actors at trial, so as to prevent government abuse and interference with the proper administration of justice.12 But the Supreme Court of the United States has never
held that relevant testimony of a prosecution witness must be excluded under the Due Process Clause simply because of a prior inconsistent statement or the lack of a consistent statement using structured methods of identification, when no government coercion or action to create the identification took place. Historically, not only in Michigan but throughout the nation, such prior inconsistent evidence was left to be ferreted out through cross-examination and the adversary process. The prosecution, like all parties before a court, must call witnesses and subject them to
The Supreme Court of the United States has also repeatedly warned that the Constitution‘s due-process protections extend in a very limited manner into the rules of evidence, especially when the complaint is solely over alleged prejudice to the defendant‘s case and involves no government misconduct. As the Supreme Court explained in Marshall v Lonberger, the Due Process Clause does not require that courts “engage in a finely-tuned review of the wisdom of state evidentiary rules[.]”13 “Judges are not free, in defining ‘due process,’ to impose on law enforcement officials their personal and private notions of fairness and to disregard the limits that bind judges in their judicial function.”14 Instead, courts are to “determine only whether the action complained of violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community‘s sense of fair play and
decency.”15 The Supreme Court has repeated this fundamentаl axiom again,16 again,17 and again,18 and has repeatedly rejected requests to impose constitutional requirements on debatable questions of factual credibility.19 “Our primary guide in determining
question is fundamental is, of course, historical practice.”20 Yet the Supreme Court has never indicated that highly relevant in-court identifications are subject to exclusion under the Due Process Clause or any other constitutional provision simply because the witness made a prior inconsistent statement or did not make a prior consistent statement. The United States from its legal founding has never required pretrial procedures to confirm a witness‘s testimony solely to ensure that an in-court identification is not inconsistent with any prior identification, or lack thereof. And, until today, Michigan has never required such a process.21 In all, criminal defendants have never had a historical right to subject inculpatory statements from in-court witnesses to any confirmation process prior to trial when no government misconduct occurred.22
An exclusionary rule for in-court identifications that conflict with pretrial identifications has simply no basis in our country‘s history and tradition.23 It certainly does not rank as something so fundamental to our principles as a country and the existence of a free society that all state governments are forever barred from choosing another process.24
It is striking that the majority opinion in no way acknowledges, let alone addresses this foundational due-process jurisprudence, and instead creates for criminal defendants
In the case of in-court identifications, the Supreme Court has held that in certain instances, police conduct to produce an identification can be so suggestive and so unnecessary to justify exclusion absent some other demonstrations of reliability. But the holdings and basic reasoning of these cases do not control situations in which witnesses on their own changed their mind after a prior identification, recollected their memories, and provided an in-court identification in conflict with a prior statement.27 Identifications of the defendant are central points of fact for the jury to consider, and of course, defense counsel has every opportunity to cross-examine the witness to bring out inconsistencies and doubt as to credibility.28 As
The Supreme Court in Perry v New Hampshire was asked to address the exact argument made by defendant here: whether suggestive circumstances underlying an identification, not as a result of government misconduct, can produce a due-process violation under the Stovall line of cases. In an 8-1 decision authored by Justice Ginsburg, the Court resoundingly rejected that conclusion. In Perry, the Court mentioned police or government “arranged circumstances” and “improper conduct” no fewer than 18 separate times.31 It emphatically and unambiguously stated that “the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification [the right recognized in the Stovall line of cases] when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.”32 The Court reviewed all the existing cases in the Stovall line and reiterated that “the Court has linked the due process check, not to suspicion of eyewitness testimony generally, but only to improper police arrangement of the circumstances surrounding an identification.”33 It is confounding that a majority of
described as on-point and controlling precedent from the Supreme Court of the United States. There is no distinction made in the Court‘s reasoning in Perry, or the precedents underlying and supporting its conclusion, between pretrial suggestive circumstances and in-court testimony involving no intentional government suggestion. Nor could it. It would be deeply counterintuitive to conclude that witnesses could be subject to innumerable suggestive circumstances prior to trial but could have their testimony excluded solely because they were present in-person at trial, “without the taint of improper state conduct.”34
or characteristics of the perpetrator, without any government-arranged coercion, amounts to improper state conduct. Notably, the Court in Perry rejected many of the same arguments this Court hears regarding purported scientific studies. Id. at 244-245 (noting studies from the American Psychological Association purporting to show the unreliability of identification but reiterating that the “fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness“) (emphasis added). It expressly refuted arguments, which are repeated in the concurring opinion, that preferred social studies and appellate perceptions of credibility justify exclusion of highly relevant evidence under the Due Process Clause. Id. at 245 (“We have concluded in other contexts [in addition to witness identifications] that the potential unreliability of a type of evidence does not alone render its introduction at the defendant‘s trial fundamentally unfair.“) (collecting sources); see ante at 3 n 5 (CAVANAGH, J., concurring in part) (relying upon scientific studies cited by the solo dissent in Perry). And as the Iowa Supreme Court aptly observed in response to similar arguments, “the judiciary is not in a good position to judge social values or social science. When social science is disputed, the institutional parameters of the judiciary are amplified. It is the legislature that is structured to assess the merits of competing policies and ever-changing social science assertions.” State v Doolin, 942 NW2d 500, 515 (Iowa, 2020) (quotation marks and citation omitted).
The Due Process Clause has a very narrow reach into evidentiary issues. Pretrial processes to ensure that all witnesses have consistent in-court testimony have never been part of the American tradition or criminal practice; the Supreme Court has never extended due-process exclusions of suggestive identifications outside of police confrontations; and the Supreme Court in Perry explicitly held that the pretrial judicial screening in the Stovall line of cases does not apply outside the context of “improper police arrangement[s].”35 Nonetheless,
Federal courts after Perry have routinely held that exclusion of in-court identification under due-process concerns occurs only if government or police action was involved.36 The majority opinion
Federal courts have similarly held that in-court trials, on their own and without government misconduct, do not create unnecessarily suggestive circumstances so as to require judicial prescreening and exclusion of in-court identifications under Stovall and Perry.37 The majority opinion is in direct conflict with these federal rulings.
The concerns animating the Supreme Court‘s Stovall line of cases are that of a police officer, as a symbol of authority, approaching a witness in order to pressure a statement through suggestive methods, outside of a courtroom, judicial oversight, rules of criminal procedure, and cross-examination. These concerns are vital to the American justice system, going to the heart of the Constitution‘s bar against the government creating false evidence against the accused.38
Yet this situation is markedly disconnected from standard in-court identifications, on the record, under oath, and in open court before a judge, a fact-finder, and onlooking public, which lack any element of government-arranged suggestion. Such testimony has been provided in American courtrooms without exclusion or interference for centuries. Trials afford criminal defendants substantial rights, all of which were contemplated and recognized in the Constitution at its founding. Defendants have the right to know the charges against them to develop a defense; they have a right to confront and cross-examine their accusers; they have a right to counsel to assist in their defense; they have the right to call witnesses to contradict inculpatory evidence; they have the right to an impartial jury; they have the right to an impartial judge; they have a right to a public trial; and they are guaranteed the impartial administration of the law.39 Yet, by concluding that a witness‘s presence in court, without additional government action or misconduct, can create unconstitutionally suggestive circumstances for that witness‘s testimony, a majority of the Court holds that the very foundations of due process, such as the presence of the accused, a judge and jury,
contradiction at the heart of the majority opinion that runs afoul of centuries of trial practice and Supreme Court precedent.
It is difficult to see how this decision will be administered. If the witness does not give a consistent identification prior to trial, their in-court identification is subject to a serious risk of exclusion. To avoid constitutional concerns, the prosecution in this state is now required to obtain a consistent identification of the defendant prior to trial using court-approved, nonsuggestive methods.41 What is the temporal scope of such a rule? Can the prosecution repeatedly ask a witness to identify the culprit up to trial, seeking a pretrial identification of the defendant? If not, how many times can the prosecution attempt to obtain a different identification? Eventually, asking a witness to repeatedly provide an identification in and of itself may become suggestive. What if the witness gives different identifications at different times? Must a court score the number and strength of identifications?42 And what if the witness came to a decision on identification after an inconsistent statement but prior to trial? What is certain is that prosecution witnesses will be subject to substantially greater scrutiny if they
provide testimony in conflict with prior statements, whether they are victims of long-term abuse or witnesses willing to stand before the court, the public, and their God to provide testimony under the penalty of perjury.43 The same will undoubtedly not
The prosecution and the jury will have an interest in eliciting a witness‘s description of a crime, in addition to direct inquiries as to identification. For instance, in this case the prosecution asked basic questions about the witness‘s knowledge of the facts at issue including identification, showed no prior knowledge that the witness would identify defendant, and expliсitly pointed out the witness‘s prior misidentification immediately after defendant‘s identification. If, during the course of any standard prosecutorial questioning, a witness identifies the defendant in conflict with a prior identification, does that warrant a mistrial? That may be a prudent course of action given that, under the majority opinion, the witness might have provided an identification under the unnecessarily suggestive circumstances of courtroom testimony. Further, it is hard to see how providing a detailed description of the perpetrator so that the jury could easily identify the defendant would not constitute unnecessarily suggestive circumstances, but merely stating the defendant‘s name in addition would. Answers obtained from a showup are not constitutional simply because the police limited questions and answers to what the perpetrator looked like. This lays bare the folly of the majority opinion‘s expansion of the Due Process Clause and Stovall to standard in-court examinations, which involve no improper government conduct and has been practiced without judicial interference for centuries.
The concurring opinion wants to have it both ways when it states that the majority opinion is merely prohibiting “identifications” but that a prosecutor “cannot indirectly produce the functional equivalent of an identification of the defendant as the perpetrator.” Ante at 8 n 13 (CAVANAGH, J., concurring in part). To be very clear: if the prosecution elicits testimony from a witness and that witness identifies the defendant, explicitly or functionally, or inculpates the defendant by name in the course of that testimony, under the holding of the majority opinion, that is improper government action potentially requiring exclusion of the testimony and reversal of the conviction on appeal. The subjective intentions of the prosecutor would not change that result, see note 26 of this opinion, as the concurring opinion understands.
Given the seriousness of the departure from established law in the majority opinion and its abject failure to fully consider the history of American criminal practice, Supreme Court precedent on the Due Process Clause, and the Perry decision, additional review of this issue in federal court may be warranted, whether in this case or another. Until then, victims and the residents of Michigan will bear the costs of this erroneous decision.
In sum, I agree in full with the separate opinion authored by Chief Justice CLEMENT. For the reasons stated in that separate opinion, as supplemented by this opinion, I would affirm defendant‘s conviction. I dissent from the decision to reverse defendant‘s sentence. The unanimous decision of the Court of Appeals should be affirmed in full.
Brian K. Zahra
Notes
Although Justices CAVANAGH and WELCH do not join the lead opinion in assuming that plain error occurred, they do join the lead opinion in its formulation and promulgation of its new rule, forming a majority. This is true even if the witness may have been subject to intimidation, which is difficult to prove and altogether too common, or if an abused victim suffering from post-traumatic stress disorder has trouble clearly identifying the assailant prior to trial. See, e.g., Davis, Smith, and Henley, Victim/Witness Intimidation in the Bronx Courts: How Common is it, and What are its Consequences? (1990), pp 13, 20 (concluding that, in the Bronx Criminal Court in New York City, 36% of witnesses had been directly threatened, and among those who had not been threatened directly, 57% feared reprisals); O‘Malley, Witness Intimidation in the Digital Age, The Prosecutor (July/August/September 2014), p 20 (“According to a 2009 field survey, 86 percent of participating law enforcement agencies reported the existence of some form of code of silence in their communities, and 47 percent identified the ‘stop snitching’ phenomenon as key. Fear of reprisal has made solving crimes considerably more difficult. Forty-five percent of respondents indicated a decrease in case clearance rates, 24 percent cited a decrease in overall trust in the agency, and 78 percent reported a decreased willingness of witnesses to testify. This is consistent with statements by proseсutors, police officers and victim/witness advocates that intimidation is widespread, increasing, and seriously affects the prosecution of violent crimes.“).Conceivably, even a sentence within the sentencing guidelines could be an abuse of discretion in unusual circumstances. See People v Broden, 428 Mich 343, 354, n 18, 408 NW2d 789 (1987). As noted above, in the interest of allowing the guidelines to continue to evolve, trial judges shall remain entitled to depart from the guidelines if the recommended ranges are considered an inadequate reflection of the proportional seriousness of the matter at hand. Just as the guidelines may not be a perfect embodiment of the principle of proportionality, so too may a sentence within the guidelines be disproportionately severe or lenient. Thus, contrary to the implication of the dissent‘s repeated observation that departures may be risked only “on pain of reversal” (post, pp 670, 692), the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range. [Milbourn, 435 Mich at 661.]
The United States Supreme Court has long recognized similar concerns, and “a vast body of scientific literature has reinforced every concern [those] precedents articulated . . . .” Perry, 565 US at 262-263 (SOTOMAYOR, J., dissenting); see also id. at 244-245 (opinion of the Court) (“We do not doubt either the importance or the fallibility of eyewitness identifications.“). In short, scientific evidence indicates that eyewitness identifications are less reliable than they are commonly perceived to be and that “jurors routinely overestimate the accuracy of eyewitness identifications.” Id. at 264 (SOTOMAYOR, J., dissenting); see also Sammons, 505 Mich at 57 (noting that “[c]ourts have widely acknowledged that juries place disproportionate weight on eyewitness identifications, even if they lack indicia of reliability“).there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses. For almost 100 years these problems have occupied the energy of some very astute judges, prosecutors and scholars who have consistently identified the problems. [People v Anderson, 389 Mich 155, 180; 205 NW2d 461 (1973), overruled on other grounds by People v Hickman, 470 Mich 602 (2004).]
To the extent that defendant argues thatAn owner of any assessable property who disputes the classification of that parcel shall notify the assessor and may protest the assigned classification to the March board of review. An owner or assessor may appeal the decision of the March board of review by filing a petition with the state tax commission not later than June 30 in that tax year. The state tax commission shall arbitrate the petition based on the written petition and the written recommendations of the assessor and the state tax commission staff. An appeal may not be taken from the decision of the state tax commission regarding classification complaint petitions and the state tax commission‘s determination is final and binding for the year of the petition. [Emphasis added.]
As other courts have recognized, it is questionable whether, as an empirical matter, the ability of defense counsel and the jury to view the suggestive identification procedure makes any significant difference to a jury‘s tendency to give undue weight to such identifications. See Dickson, 322 Conn at 439-440; Crayton, 470 Mass at 239-240. But even assuming there is some evaluative benefit from viewing the identification procedure in person, it does not make the identification itself more reliable, and I do not believe this is sufficient protection to satisfy due process in light of the well-recognized tendency of juries to give undue weight to eyewitness testimony, even when such testimony is tainted by an unnecessarily suggestive identification procedure. Montana v Egelhoff, 518 US 37, 43; 116 S Ct 2013; 135 L Ed 2d 361 (1996) (opinion of Scalia, J.); see also Patterson v New York, 432 US 197, 201-202; 97 S Ct 2319; 53 L Ed 2d 281 (1977) (“Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out” and “its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.“) (quotation marks and citations omitted); Snyder v Massachusetts, 291 US 97, 105; 54 S Ct 330; 78 L Ed 674 (1934) (Cardozo, J.) (explaining that state rules of procedure do not “run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar“), overruled on other grounds by Malloy v Hogan, 378 US 1 (1964).[i]f any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.