People of Michigan v. Dametrius Benjamin Posey

Michigan Supreme Court

Lansing, Michigan

Syllabus

Chief Justice: Justices:

Elizabeth T. Clement Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Megan K. Cavanagh

Elizabeth M. Welch

Kyra H. Bolden

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:

prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

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, MCL 750.83; assault with intent to

commit great bodily harm less than murder, MCL 750.84; carrying a weapon with unlawful intent,

MCL 750.226; being a felon in possession of a firearm, MCL 750.224f; and possessing a firearm

during the commission of a felony, MCL 750.227b. The witnesses, Terrence Byrd and Dwayne

Scott, were approached by two men while standing outside a market in Detroit. One of the men

showed the witnesses a gun, and Byrd exchanged gunfire with the men. Scott was shot during the

incident, and Byrd testified that both of the men who had approached them were also shot. The

day after the shooting, Byrd and Scott gave statements to the police. Byrd described one of the

men as 6’3” and dark-skinned and the other as light-skinned with reddish-blond hair, while Scott

described the shooter as dark-skinned and 5’9”. Byrd identified two men from a photo array, but

neither man was charged in connection with the shooting. Scott selected defendant from a photo

array as one of the men involved in the shooting, but he later testified that he was unsure of his

identification. At trial, Byrd identified defendant, by name, for the first time as one of the shooters.

Scott, despite his earlier identification, did not identify defendant at trial. After sentencing,

defendant appealed. While the appeal was pending, defendant and the prosecution moved jointly

to remand for resentencing because of several errors during the sentencing hearing. The Court of

Appeals, MURRAY, P.J., and FORT HOOD and LETICA, JJ., granted the motion and remanded for

resentencing in an unpublished order. Defendant was resentenced after his guidelines range was

corrected, but the trial court, Ulysses W. Boykin, J., imposed the same minimum sentence as

defendant’s original sentence, 264 months, which was within the revised guidelines range. The

Court of Appeals, BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ., then affirmed defendant’s

convictions and sentence. 334 Mich App 338 (2020). Defendant applied for leave to appeal in

the Supreme Court, and the Court scheduled and heard oral argument on the application. 508 Mich

940 (2021).

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 MCL 769.34(10)

by Justice WELCH, and an opinion by Justice WELCH, the Supreme Court held:

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 MCL 769.34(10) was struck to the extent that it

rendered sentences within the guidelines unreviewable. People v Schrauben, 314 Mich App 181

(2016), was overruled in part, as was any other decision that required appellate courts to affirm

within-guidelines sentences on appeal.

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 MCL 769.34(10) requiring affirmation of within-guidelines sentences on appeal be

struck as unconstitutional under People v Lockridge, 498 Mich 358 (2015), and People v

Steanhouse, 500 Mich 453 (2017), reasoning that because MCL 769.34(10) requires that the Court

of Appeals “shall” affirm and “shall not” remand any trial court’s sentencing decision that is

“within the sentencing guidelines,” it necessarily refers to the sentencing guidelines as mandatory

and, as such, was necessarily struck down by Lockridge. She stated that although the guidelines

remained a highly relevant consideration when sentencing, they did not permit a trial court to use

them as a shield against appellate review by rigidly imposing sentences within the guidelines. She

further stated that without the ability to seek judicial review of the reasonableness of a sentence

for which the minimum sentence falls within the guidelines, the guidelines would become

effectively mandatory any time a defendant’s minimum sentence was consistent with the

guidelines.

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 MCL

769.34(10) by Justice WELCH. Justice CAVANAGH agreed that the first sentence of MCL

769.34(10) was unconstitutional, and she concurred in full with the lead opinion’s reasoning on

that point. She also agreed that identifications of a defendant that occur for the first time at trial

raise due-process concerns but that defendant was not entitled to relief from his conviction.

Accordingly, she agreed that the case should be remanded to the Court of Appeals to review the

proportionality of defendant’s sentence. She wrote separately to further explain why first-time

trial identifications raise due-process concerns and why, in her view, first-time trial identifications

of a defendant with whom the witness had no prior interactions before the alleged crime would,

under the generally recognized due-process framework for determining the admissibility of

eyewitness identifications, almost always be insufficiently reliable to satisfy due-process

requirements. She also wrote separately to elaborate on why the Court’s holding as to first-time

trial identifications was consistent with Perry v New Hampshire, 565 US 228 (2012). She stated

that Perry did not address the issue of first-time trial identifications but rather clarified that

intentional state use of an unnecessarily suggestive identification procedure is a prerequisite before

due process requires exclusion. She further stated that there is no meaningful distinction between

the prosecutor—an agent of the state—eliciting a first-time trial identification and the police

engaging in an unnecessary pretrial showup, which is the type of unnecessarily suggestive

procedure that the Due Process Clause has traditionally deterred. Finally, she stated that, instead

of affirming defendant’s convictions on the basis that defendant could not demonstrate prejudice,

she would have affirmed because, under the state of the law when the trial occurred, the error in

admitting Byrd’s identification was not plain and trial counsel did not perform deficiently by

failing to object to this testimony.

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 MCL

769.34(10). With regard to appellate review for proportionality of sentences that fall within the

sentencing guidelines, she joined Parts II(B)(1) and (2) and the remedy provided in Part II(B)(4)

of the lead opinion, but she dissented from Part II(B)(3). She agreed that at least the first sentence

of MCL 769.34(10) was invalid but disagreed that this conclusion was compelled by Lockridge

and Steanhouse, because the constitutional defects identified in Lockridge had been cured by that

opinion when it rendered the guidelines advisory. Instead, she concluded that MCL 769.34(10)

impermissibly infringes a convicted individual’s right to seek appellate review of the results of a

criminal prosecution under Const 1963, art 1, § 20 by effectively eliminating the right to appeal

any aspect of a sentencing decision that did not fall within the two enumerated categories of defects

and by requiring the Court of Appeals to affirm such sentences without reviewing the merits of a

defendant’s legal arguments. Accordingly, Justice WELCH agreed that the first sentence of MCL

769.34(10) must be severed to the extent it required appellate courts to affirm within-guidelines

sentences.

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 MCL 769.34(10) that appellate courts affirm within-

guidelines sentences. Because she believed that the Court of Appeals correctly resolved both

issues, she would have affirmed in full.

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 MCL 769.34(10) does not violate the Sixth Amendment and

that the majority opinion unduly and improperly expanded the scope of protection afforded a

defendant with regard to in-court identifications. He wrote separately to emphasize that the

majority’s rule ran afoul of established precedent and would have a substantial negative impact on

the criminal justice system for years to come. He noted that neither the prosecution nor the police

in this case had taken any action to force, pressure, compel, or influence the witness’s testimony;

that there was no evidence of abnormality in the administration of the trial, judicial oversight, jury

observation, or cross-examination; and that defendant had not alleged any form of prosecutorial

misconduct. He stated that the majority’s rule that certain in-court identifications, lacking any

form of government coercion, pressure, or misconduct, could not be admitted for jury

consideration was the first such holding in the history of the state’s jurisprudence and conflicts

with centuries of trial practice and precedent from the United States Supreme Court. He stated

that the decision is in direct conflict with the interpretations of numerous federal circuit courts on

the same issue and creates significant challenges for prosecutions and trial courts in administering

this decision going forward. Justice ZAHRA would not have created a new constitutional right for

defendants to exclude highly relevant in-court testimony under the auspices of due process, and he

would have affirmed the Court of Appeals judgment in full.

Michigan Supreme Court

Lansing, Michigan

OPINION

Chief Justice: Justices:

Elizabeth T. Clement Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Megan K. Cavanagh

Elizabeth M. Welch

Kyra H. Bolden

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

BOLDEN, J.

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 witness 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

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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

3

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 the sentencing guidelines range—were reasonable. Id.

We must now decide whether appellate review is available for defendant’s sentence

that was within the sentencing guidelines’ range. MCL 769.34(10) requires, in part, that,

for such sentences, 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.” Defendant is not

challenging a scoring error or arguing that the trial court used inaccurate information to

determine his sentence. Still, he seeks appellate review of his within-guidelines sentence.

As to this issue, we hold that Lockridge requires the conclusion that MCL

769.34(10) impermissibly precludes substantive appellate review of within-guidelines

sentences. See Lockridge, 498 Mich at 365 n 1. In reaching our holding, we overrule the

portion of People v Schrauben, 314 Mich App 181; 886 NW2d 173 (2016), that requires

the Court of Appeals to affirm a trial court’s sentence if the defendant’s minimum sentence

lies within the recommended guidelines minimum sentence range. We further hold,

consistently with Lockridge and Steanhouse, that on appeal, challenges to within-

4

guidelines sentences are reviewed for reasonableness according to the test outlined in

Steanhouse.

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

5

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 obtained surveillance footage of

the shooting from the Super X Market.

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

6

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 from 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, MCL 750.83; assault with intent to commit

great bodily harm less than murder, MCL 750.84; carrying a weapon with unlawful intent,

MCL 750.226; being a felon in possession of a firearm (felon-in-possession), MCL

750.224f; and possessing a firearm during the commission of a felony (felony-firearm),

MCL 750.227b. At trial, Byrd identified defendant, by name, for the first time ever, as one

of the shooters. In contrast, Scott, who had previously identified defendant to the police,

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did not identify defendant at trial. Trial counsel did not object to Byrd’s identification.

Identity was a key issue at trial, with the prosecution arguing that Scott had previously

identified defendant two days after the shooting while his mind was fresh, and defendant

stressing that Scott did not identify defendant at trial, that Byrd’s first identification came

at trial, and that no other evidence of identity was produced. Defendant was convicted as

charged on July 23, 2018. 1

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

1

The codefendant was found guilty of two counts of assault with intent to do great bodily

harm less than murder, one count of carrying a weapon with unlawful intent, felon-in-

possession, carrying a concealed weapon, and two counts of felony-firearm. Although both

defendants appealed and the Court of Appeals consolidated their appeals, the codefendant

is no longer a part of this appeal, and thus only defendant Posey is relevant to this opinion

and our legal analysis.

2

The focus of the sentencing portion of this appeal concerns the sentence for defendant’s

conviction of assault with intent to murder. To simplify this opinion, defendant’s other

sentences are not discussed in detail.

8

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. US Const Am XIV; Const 1963, art 1, § 17; see also Gray,

457 Mich at 111 & n 5. Whether defendant’s right to due process was violated is a

constitutional question. People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015). Trial

counsel did not object to Byrd’s in-court identification of defendant, the key issue that

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defendant argues violated his due-process rights, so the issue is not preserved. Unpreserved

constitutional questions are reviewed for plain error affecting defendant’s substantial

rights. Carines, 460 Mich at 764.

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:

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1. Prior relationship with or knowledge of the defendant.

2. 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.

3. Length of time between the offense and the disputed identification.

4. Accuracy or discrepancies in the pre-lineup or show-up description

and defendant’s actual description.

5. Any previous proper identification or failure to identify the

defendant.

6. Any identification prior to lineup or showup of another person as

defendant.

7. . . . [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.

8. 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 his right to due process was violated because Byrd was

permitted to identify defendant as an assailant for the first time at trial, despite the fact that

Byrd had been given photographic arrays before trial and identified individuals other than

defendant and his codefendant as the assailants. The Court of Appeals disagreed, holding

that, because there was no suggestive pretrial identification by Byrd and no improper police

11

behavior, there was no due-process violation. Posey, 334 Mich App at 350-351. The Court

of Appeals reasoned that two cases supported this view: People v Barclay, 208 Mich App

670; 528 NW2d 842 (1995), and Perry v New Hampshire, 565 US 228; 132 S Ct 716; 181

L Ed 2d 694 (2012).

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

3

Whether Barclay was correctly decided is not at issue in this case.

4

We agree with the dissent that Perry does not compel this result. But Perry does not

compel this result because Perry does not ask this question. Again, we find a meaningful

difference here given that Byrd had identified individuals other than defendant during

12

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 scene of the crime.

Id. at 240. Perry then held:

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

pretrial processes, admitted to having witnessed defendant’s name and photograph

associated with this crime in the time between his pretrial identifications of men other than

defendant as the perpetrators and defendant’s trial, and saw defendant sitting as an accused

assailant in the courtroom. Although there is no allegation of impermissibly suggestive

pretrial police behaviors, the reason that test exists is grounded in due process, which finds

identification evidence inadmissible if it is procured by improper state action. We agree

with the United States Court of Appeals for the Sixth Circuit and other courts that have

held that due-process concerns apply equally to both in-court identifications and pretrial

identifications. See, e.g., United States v Hill, 967 F2d 226, 232 (CA 6, 1992) (“The due

process concerns are identical in both cases and any attempt to draw a line based on the

time the allegedly suggestive identification technique takes place seems arbitrary. All of

the concerns that underlie the Biggers analysis, including the degree of suggestiveness, the

chance of mistake, and the threat to due process are no less applicable when the

identification takes place for the first time at trial.”).

13

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

5

Notably, unlike in this case, the defendant in Perry, by being identified by a particular

witness in a pretrial hearing, was put on notice of the possibility that the witness would

likely identify the defendant at trial.

14

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 a 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

15

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 Because the

6

We note that a suggestive identification procedure is generally necessary only if there is

no time to conduct a nonsuggestive identification procedure because of the imminent threat

of harm to others or the loss of a witness. See Sammons, 505 Mich at 47-48; citing Stovall

v Denno, 388 US 293, 302; 87 S Ct 1967; 18 L Ed 2d 1119 (1967). Neither circumstance

is implicated during an in-trial identification because an in-trial identification is made by

the witness—so the witness is not lost—and occurs long after relevant evidence has been

preserved and the defendant’s danger to the community has been assessed and contained

as appropriate. See Commonwealth v Crayton, 470 Mass 228, 242; 21 NE3d 157 (2014)

(noting that the general justification for using showup procedure “depends on the short

duration of time between the crime and the showup, and will never justify an in-court

showup”). We recognize that the necessity inquiry is a bit different in this context, as

historically trial identifications have been a permissible part of the trial process. See

Walker v Commonwealth, 74 Va App 475, 502 & n 13; 870 SE2d 328 (2022) (noting that

in-court identifications “have long been a routine part of criminal trials” and therefore

holding that they are “necessary” and do not constitute an “improper” identification

procedure under Perry); but see Dickson, 322 Conn at 440-442 (questioning whether the

historical rationale for in-court identifications justifies the practice today). But regardless

of the continued utility of trial identifications as a general matter, we believe that it is never

necessary for a prosecutor to ask a witness to identify a defendant 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. See Dickson, 322 Conn at 447.

7

Several other jurisdictions have taken similar measures to ensure the protection of

defendants’ due-process rights. See, e.g., Dickson, 322 Conn at 424-426 (extending due-

process-oriented screening requirements to first-time-in-court identification evidence);

United States v Morgan, 248 F Supp 3d 208, 213 (D DC, 2017) (holding that, “[a]lthough

the Supreme Court implied in Perry that it did not want all in-court identifications to be

16

same due-process rights are affected, trial courts must consider reliability factors such as

those at issue when an in-court identification is tainted by an unduly suggestive out-of-

court identification procedure. See Gray, 457 Mich at 116; Kachar, 400 Mich at 95-96. 8

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);

United States v Greene, 704 F3d 298, 308 (CA 4, 2013), cert den 571 US 952 (2013)

(applying the Biggers constitutional analysis to in-court identifications); United States v

Rogers, 126 F3d 655, 658 (CA 5, 1997) (applying the Biggers analysis to in-court

identification); United States v Hill, 967 F2d 226, 232 (CA 6, 1992), cert den 506 US 964

(1992) (holding that the Biggers constitutional analysis applies to in-court identifications

for the same reasons that the analysis applies to impermissibly suggestive out-of-court

identifications); United States v Rundell, 858 F2d 425, 427 (CA 8, 1988) (noting that there

is “suggestiveness inherent in the witnesses’ knowing that [the defendant] was the sole

[person] charged” and applying the Biggers factors to in-court identification evidence);

United States v Morgan, 248 F Supp 3d 208, 213 (D DC, 2017) (holding that “it is

suggestive to ask a witness to identify the perpetrator of a charged crime when it is obvious

to that witness which person is on trial for committing that crime” and applying the Biggers

factors to such in-court identifications).

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.

8

This does not prohibit the use of first-time-in-court identification procedures employed

by prosecutors, but it limits the admissibility of such evidence by requiring the evidence to

demonstrate reliability before it may be admitted. Specifically, this holding requires that

the prosecution establish sufficient indicia of reliability before presenting this evidence to

the jury when there are questions regarding whether the procedures used to procure the

identification evidence were unnecessarily suggestive.

17

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 must have “resulted in the conviction of an actually innocent

defendant” or “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings . . . .’ ” Carines, 460 Mich at 763-764, quoting Olano, 507 US at 736

(quotation marks and citation omitted).

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

18

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

9

It is unnecessary for us to decide whether the trial court’s admission of this evidence

constituted plain error. However, this analysis is far from an admission that we consider

the error to be plain, given that this Court is endorsing a new rule rather than one that was

clearly established as a matter of law at the time of trial.

19

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

B. THE APPELLATE REVIEW OF WITHIN-GUIDELINES SENTENCES

1. STANDARD OF REVIEW

Whether Schrauben correctly interpreted MCL 769.34(10) to require an appellate

court to affirm a defendant’s within-guidelines sentence is a question of statutory

interpretation, which we review de novo. People v Carter, 503 Mich 221, 226; 931 NW2d

566 (2019). The constitutionality of a statute is also a question that we review de novo.

Lockridge, 498 Mich at 373. Again, de novo review means that this Court reviews the

legal issue independently without deference to the lower court. Bruner, 501 Mich at 226.

10

Defendant also raised the alternative possibility that trial counsel’s failure to object to

Byrd’s in-court identification deprived him of effective assistance of trial counsel. We

disagree. Defendant asks this Court to adopt the rule that a first-time-in-court identification

by an eyewitness is per se inadmissible. It is not constitutionally deficient for trial counsel

to fail to raise a challenge based on a desired change in the law. Any objection to the trial

court’s implementing the law in effect at the time of trial would have been meritless, and

counsel is not ineffective for failing to make frivolous or meritless objections. See People

v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003). Accordingly, we conclude that

defendant’s claim of ineffective assistance of trial counsel lacks merit. Strickland, 466 US

at 700; Trakhtenberg, 493 Mich at 51.

20

2. MANDATORY SENTENCING GUIDELINES

The Michigan Constitution vests sentencing authority in the Legislature. Const

1963, art 4, § 45; see also People v Boykin, 510 Mich 171, 183; 987 NW2d 58 (2022). For

certain punishments, the Legislature has assigned discretionary authority to trial courts to

sentence a defendant within a given range, with each sentence being individualized to the

circumstances of the offense and the offender. Boykin, 510 Mich at 183, citing People v

McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). For the past 40 years, Michigan

courts have used sentencing guidelines to help accomplish the task of individualizing

sentences while reducing sentencing disparities based on factors other than the

circumstances of the offense and the offender.

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, MCL 777.1 et seq., which allowed a sentencing court to

depart from the guidelines’ score only when there was a “ ‘compelling reason’ ” for doing

so. Babcock, 469 Mich at 255, quoting MCL 769.34(3), as amended by 2002 PA 666.

11

Administrative Order No. 1983-3, 417 Mich cxxi (1983), created these judicial

guidelines.

21

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. 28 USC 991(a), 994(a). The United States Sentencing

Commission promulgated federal sentencing guidelines in 1987. Before the federal

guidelines were adopted, federal sentencing courts had broad discretion in determining the

length of a criminal defendant’s sentence. Mistretta v United States, 488 US 361, 363; 109

S Ct 647; 102 L Ed 2d 714 (1989). However, once the SRA became effective, the result

was that district judges were required to “impose on a defendant a sentence falling within

the range of the applicable Guideline, if the case is an ordinary one.” Koon v United States,

518 US 81, 92; 116 S Ct 2035; 135 L Ed 2d 392 (1996).

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

12

A much more robust chronicle of the federal cases that have influenced Michigan’s

sentencing jurisprudence is found in Lockridge, 498 Mich at 369-373.

22

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.

23

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 not a mere sentencing factor. Alleyne, 570 US at 103, overruling

Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002).

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: MCL 769.34(2), as amended by 2002 PA 666, which made

sentencing mandatory according to guidelines based on facts not submitted to a jury, and

former MCL 769.34(3), which required articulation of substantial and compelling reasons

to depart from the guidelines. Id. at 364-365, citing Apprendi, 530 US 466; Alleyne, 570

US 99; and Booker, 543 US at 264. 13 In light of these cases, Michigan’s sentencing

13

How appellate courts applied MCL 769.34(10) was not at issue in Lockridge, which

solely addressed the threshold question of how the guidelines affected first-level sentencing

determinations made by trial courts. Lockridge, 498 Mich at 368 n 11. However,

Lockridge stated: “To the extent that any part of MCL 769.34 or another statute refers to

24

guidelines are no longer mandatory, but they “remain a highly relevant consideration in a

trial court’s exercise of sentencing discretion.” Lockridge, 498 Mich at 391. Before being

severed (and subsequently amended), MCL 769.34(3) required trial courts to explain, on

the record, “substantial and compelling reasons” for departing from the sentencing

guidelines. Although it was directed at trial courts, former MCL 769.34(3) also served as

an express statutory instruction to appellate courts about how to review a sentence that

went outside the sentencing guidelines. Essential to why Lockridge struck down this

statutory provision was that it required courts to sentence defendants within the guidelines

except in extreme circumstances, rendering the guidelines more than merely advisory. This

Court asserted that out-of-guidelines sentences would be reviewed instead for

reasonableness. Id. at 392, citing Booker, 543 US at 261.

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

use of the sentencing guidelines as mandatory or refers to departures from the guidelines,

that part or statute is also severed or struck down as necessary.” Id. at 365 n 1.

25

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 MCL 769.34(10) intact. Schrauben, 314 Mich App at 196 n 1. Schrauben correctly

understood Lockridge to require reviewing out-of-guidelines sentences for reasonableness.

Id. at 193, citing Lockridge, 498 Mich at 392. However, Schrauben did not deal with a

departure sentence; the defendant’s sentence was within the guidelines’ recommended

range. Schrauben, 314 Mich at 196. When the panel concluded that the Court of Appeals

“must affirm the [within-guidelines] sentence” unless a defendant “argue[s] that the trial

court relied on inaccurate information or that there was an error in scoring the guidelines,”

the Court of Appeals erred. Id. We now overrule that portion of Schrauben and hold that

Lockridge requires that the portion of MCL 769.34(10) requiring affirmation of within-

guidelines sentences on appeal be struck as unconstitutional.

In Lockridge, this Court noted that “[t]o the extent that any part of MCL 769.34 or

another statute refers to use of the sentencing guidelines as mandatory or refers to

departures from the guidelines, that part or statute is also severed or struck down as

necessary.” Lockridge, 498 Mich at 365 n 1. Without much analysis, Schrauben

26

concluded that Lockridge “did not alter” MCL 769.34(10). Schrauben, 314 Mich App at

196 n 1. In so doing, Schrauben tried to fit a square peg into a round hole.

Footnote 1 of Lockridge necessarily, in striking down “any part of MCL 769.34”

that “refers to use of the sentencing guidelines as mandatory,” held MCL 769.34(10) to be

unconstitutional. MCL 769.34(10) provides that, “[i]f a minimum sentence is within the

appropriate guidelines sentence range, the [C]ourt of [A]ppeals 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.” (Emphasis

added.) This Court has long and consistently held that shall is a mandatory directive. See,

e.g., Lockridge, 498 Mich at 387 (“As we have stated many times, ‘shall’ indicates a

mandatory directive.”); see also Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321

NW2d 668 (1982), citing Smith v Sch Dist No 6, Fractional, Amber Twp, 241 Mich 366,

369; 217 NW 15 (1928) (explaining that “the presumption is that ‘shall’ is mandatory”);

State Hwy Comm v Vanderkloot, 392 Mich 159, 180; 220 NW2d 416 (1974) (“Certainly

the popular and common understanding of the word ‘shall’ is that it denotes

mandatoriness.”). 14 When MCL 769.34(10) requires that the Court of Appeals “shall”

affirm and “shall not” remand any trial court’s sentencing decision that is “within the

sentencing guidelines,” it necessarily, then, refers to the sentencing guidelines as

14

In this very context, the United States Supreme Court has also interpreted “shall” to be

mandatory and binding. See, e.g., Booker, 543 US at 233-234 (“While subsection (a) of

§ 3553 of the [federal] sentencing statute lists the Sentencing Guidelines as one factor to

be considered in imposing a sentence, subsection (b) directs that the court ‘shall impose a

sentence of the kind, and within the range’ established by the Guidelines, subject to

departures in specific, limited cases. . . . Because they are binding on judges, we have

consistently held that the Guidelines have the force and effect of laws.”).

27

mandatory. A mandate on the Court of Appeals is just that—a mandate. Thus, it was

necessarily struck down by Lockridge. Lockridge, 498 Mich at 365 n 1. 15 As discussed

further below, a mandate on an appellate court to affirm perpetuates the constitutional

violation wrought by the identical mandate on the trial court. It is part and parcel of the

unconstitutional scheme reflected in the statutory provisions severed as unconstitutional by

Lockridge.

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 MCL 769.34(10) was clarified by this Court’s later adoption of the

reasonableness review centered on the principle of proportionality articulated in Milbourn.

In its most basic form, Steanhouse was a consolidated case that sought to provide clarity

about what the appropriate standard of review was for out-of-guidelines sentences once

Lockridge was decided. Steanhouse adopted its appellate standard from Milbourn, by

verbatim asserting 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.’ ” Steanhouse, 500 Mich at 475 (emphasis added), quoting Milbourn,

15

Lockridge explains that “[a] sentence that departs from the applicable guidelines range

will be reviewed by an appellate court for reasonableness.” Lockridge, 498 Mich at 392,

citing Booker, 543 US at 261. Lockridge’s holding does not preclude the result that a

sentence that does not depart from the applicable guidelines range is also reviewed for

reasonableness. Lockridge simply did not expressly decide the applicable standard of

review for an appeal of a within-guidelines sentence because the defendant’s sentence was

outside the guidelines. Lockridge, 498 Mich at 368 n 11.

28

435 Mich at 661. It is notable that Milbourn’s proportionality review was reaffirmed,

because Milbourn expressly considered the need for proportionality review, even of

sentences that fell within the judicial sentencing guidelines in place at that time. Milbourn,

435 Mich at 661, citing People v Broden, 428 Mich 343, 354 n 18; 408 NW2d 789 (1987)

(noting that “[c]onceivably, even a sentence within the sentencing guidelines could be an

abuse of discretion in unusual circumstances”). This means that this Court has consistently

required sentencing decisions to be based on the principle of proportionality across

different sentencing regimes.

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 for reasonableness, which requires the

reviewing court to consider whether the sentence is proportionate to the seriousness of the

matter. Steanhouse, 500 Mich at 473. The guidelines remain important as an advisory

resource for sentencing courts and continue to be a “highly relevant consideration” on

appeal. But the portion of MCL 769.34(10) that requires appellate affirmation of within-

guidelines sentences that are based on accurate information without scoring errors is

29

unconstitutional because, as we explained in Lockridge, it would necessarily render the

guidelines mandatory.

Evidence supporting this holding is also found in the ways the Court of Appeals has

attempted to apply MCL 769.34(10). It is apparent that the Court of Appeals has struggled

with the literal interpretation of MCL 769.34(10) articulated in Schrauben. In People v

Conley, 270 Mich App 301, 316-317; 715 NW2d 377 (2006), for example, the Court of

Appeals held that MCL 769.34(10) was inapplicable to claims of constitutional sentencing

error when a defendant argued that his within-guidelines sentence was based, in part, on

his refusal to admit guilt. Taken on its face, MCL 769.34(10) provides no such

constitutional carveout for appellate courts to exercise their discretion. The only

exceptions included in the plain language of the statute through which a defendant may

challenge a within-guidelines sentence are a scoring error or a demonstration that the

defendant’s sentence was based on inaccurate information. The statute provides no

exceptions for constitutional challenges. Conley correctly recognized that MCL

769.34(10) is untenable without such a carveout but failed to recognize that the statute’s

mandatory nature creates this problem. 16 In fact, Booker rejected the type of bifurcated

review that would allow guidelines to be mandatory in some cases and discretionary in

others. Booker, 543 US at 266-267. Like Booker, we conclude that this type of bifurcated

appellate review is incompatible with Lockridge.

16

Moreover, imposing an exception for challenges rooted in constitutionality would

seemingly be impossible to administer and without limits. Any wily defendant could argue

that, as applied, their sentence is cruel or unusual in violation of Const 1963, art 1, § 16 in

order to evade the mandatory affirmation required by MCL 769.34(10).

30

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 MCL 769.34(10) into a tool by which a

trial court that wishes for the sentencing guidelines to be mandatory can make the

sentencing guidelines mandatory just by rigidly applying them—thereby precluding

appellate review.

Without the ability to seek judicial review of the reasonableness of a sentence for

which the minimum sentence falls within the guidelines, the guidelines become effectively

mandatory any time a defendant’s minimum sentence is consistent with the guidelines.

Given the statement in Lockridge that “[t]o the extent that any part of MCL

769.34 . . . refers to use of the sentencing guidelines as mandatory . . . that part or statute

is also severed or struck down as necessary,” and having explained that MCL 769.34(10)

refers to the use of the sentencing guidelines as mandatory, we must decide whether it is

17

Although it is unnecessary for us to consider whether such a scheme deprives defendants

of their appeal by right guaranteed by Const 1963, art 1, § 20, it is difficult for us to

contemplate how such a right can exist simultaneously with a statute that enables a trial

court to render a sentence final and effectively unreviewable by correctly following the

guidelines and considering correct information.

31

necessary to strike down the portion of MCL 769.34(10) that requires affirmation on

appeal. We conclude that it is.

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, 400 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

32

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 range,” 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. MCL 769.34(10),

as written, requires affirmation of Defendant A’s sentence without regard to whether that

sentence was proportionate on appeal. Defendant B may appeal the proportionality of their

sentence. In essence, given that sentencing courts are all tasked with sentencing according

to the principle of proportionality, a sentencing scheme that limits appellate review to only

Defendant B and those similarly situated necessarily creates two categories of sentences:

“proportionate because it matches the guidelines” and “possibly disproportionate because

it does not.” But proportionality must be measured according to the offense and the

offender, not according to the sentence’s relationship to the guidelines. Therefore, it is

necessary to strike the portion of MCL 769.34(10) that requires appellate courts to affirm

33

within-guidelines sentences because it violates Lockridge and Steanhouse. 18 As the

illustration shows, striking MCL 769.34(10) is necessary to avoid perpetuating the Sixth

Amendment violation through unyielding pressure from the appellate courts above. The

provision impermissibly passes the constitutional violation along to the appellate court.

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

18

To be very clear, only the part of MCL 769.34(10) which requires appellate courts to

affirm within-guidelines sentences on appeal is being severed. This is consistent with MCL

8.5, which states, in part, that

[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.

34

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 in support of a presumption were: (1) a

presumption is not binding, and (2) a within-guidelines sentence reflects that both the

sentencing court and sentencing guidelines reached the same conclusion regarding the

appropriate punishment for a defendant considering their circumstances and their offenses.

Id. at 347. Although Rita imposed a presumption of reasonableness, it took seriously the

concern that such a presumption would encourage sentencing courts to sentence defendants

within the guidelines to limit appellate review of the sentence. Id. at 354. Nonetheless,

when considering the constitutionality of the sentencing scheme, Rita concluded that “[a]

nonbinding appellate presumption that a Guidelines sentence is reasonable does not require

the sentencing judge to impose that sentence.” Id. at 353.

19

Notably, Rita did not present the question we address here about whether there was a

mandated affirmation of a within-guidelines sentence. Rather, it considered whether

reasonableness review of within-guidelines sentences afforded reviewing courts the

discretion to apply a presumption of reasonableness when conducting reasonableness

review. See Rita, 551 US at 346 (showing examples of which federal circuit courts of

appeals applied a presumption of reasonableness and which did not). To simplify, the

question here is whether appellate review is permissible for within-guidelines sentences.

The question in Rita was, given that each of the circuit courts was reviewing within-

guidelines sentences for reasonableness, what such reasonableness review entails. To

illustrate, consider one of the cases abrogated by Rita because it did not apply a

presumption of reasonableness: United States v Jiménez-Beltre, 440 F3d 514 (CA 1, 2006)

(opinion en banc), abrogated by Rita, 551 US at 346. In Jiménez-Beltre, the United States

Court of Appeals for the First Circuit held that it was not permissible to apply a

presumption of reasonableness of within-guidelines sentences on appeal because a

presumption reasonableness “tends in [the] direction” of a mandate, which would not be

permitted under Booker. Jiménez-Beltre, 440 F3d at 518.

35

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.

36

III. APPLICATION

The Court of Appeals affirmed defendant’s sentence “[b]ecause MCL 769.34(10)

precludes appellate review . . . .” Posey, 334 Mich App at 359. However, we now hold

that the portion of MCL 769.34(10) mandating appellate affirmation of within-guidelines

sentences is severed as inconsistent with our sentencing approaches in Lockridge and

Steanhouse. Thus, we reverse the part of the Court of Appeals opinion addressing

sentencing and the proportionality of defendant’s sentence and remand to that Court to

review defendant’s sentence for reasonableness. Because defendant’s minimum sentence

is within his guidelines’ range, on remand, the Court of Appeals shall apply a nonbinding

rebuttable presumption of proportionality.

IV. CONCLUSION

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

37

a within-guidelines sentence, the presumption of proportionality may be overcome. We

therefore reaffirm the part of Lockridge that declared that any portion of MCL 769.34 that

imposed a mandatory consideration of the sentencing guidelines to be necessarily

unconstitutional, and we strike the portion of MCL 769.34(10) requiring such consideration

for that reason. In the process, we overrule Schrauben in part, as well as any other decision

that requires appellate courts to affirm within-guidelines sentences on appeal, and we

overrule the Court of Appeals’ holdings that are inconsistent with this approach. Finally,

we remand this case to the Court of Appeals for further proceedings not inconsistent with

this opinion.

Kyra H. Bolden

Richard H. Bernstein

38

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 MCL 769.34(10) is unconstitutional, and I concur in full with the lead

opinion’s reasoning on this point. I also agree with the majority that identifications of a

defendant that occur for the first time at trial raise due-process concerns but that defendant

is not entitled to relief from his conviction. Accordingly, I concur in remanding to the

Court of Appeals to review the proportionality of defendant’s sentence.

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

1

In this opinion, I refer to Justice BOLDEN’s opinion as the “majority” where four justices

have signed on to that part of the opinion and as the “lead opinion” where a majority agrees

with that opinion’s holding but not its rationale.

interactions before the alleged crime 2 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 would

affirm because, under the state of the law when the trial occurred, the error in admitting

Terrence Byrd’s identification was not “plain” and trial counsel did not perform deficiently

by failing to object to this testimony.

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

2

Throughout this opinion, I refer to such defendants as “strangers” for ease of reference.

3

I also agree with the majority that, because it is not what occurred in this case, it is

unnecessary to address a situation where the only pretrial identification occurred at the

preliminary examination.

4

People v Sammons, 505 Mich 31, 36 n 1; 949 NW2d 36 (2020) (“A showup is ‘[a] police

procedure in which a suspect is shown singly to a witness for identification[.]’ ”), quoting

Black’s Law Dictionary (11th ed).

2

(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

5

As early as 1973, this Court recognized that

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).]

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”).

6

Even where due process does not require excluding a witness identification from trial,

courts have long had the discretion to do so under MRE 403 “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury . . . .” See Perry, 565 US at 247.

3

unnecessarily creates a “substantial likelihood of misidentification,” id. at 239 (quotation

marks and citation omitted); see also id. at 241-242. Contrary to the Court of Appeals’

holding below, I see no reason why this deterrent rationale does not apply to first-time trial

identifications, especially where the witness had no preexisting relationship with the

defendant before the crime occurred. This procedure is never “necessary.” And given the

highly questionable reliability of such identifications and the likelihood that jurors will

give them undue weight, their admission undermines the search for truth, “which is the

sine qua non of a fair trial.” Estes v Texas, 381 US 532, 540; 85 S Ct 1628; 14 L Ed 2d

543 (1965). 7

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

7

For the reasons stated later, this holding is consistent with United States Supreme Court

precedent interpreting the federal Due Process Clause. US Const, Am XIV. However, I

note that defendant argued in his Standard 4 brief, filed pursuant to Supreme Court

Administrative Order No. 2004-6, that the in-court identification here violated Michigan’s

Due Process Clause, Const 1963, art 1, § 17, and this may provide an alternative basis for

this holding. See Bauserman v Unemployment Ins Agency, 503 Mich 169, 185 n 12; 931

NW2d 539 (2019) (noting that caselaw interpreting the federal Due Process Clause is not

binding when interpreting Michigan’s Due Process Clause); Sammons, 505 Mich at 50 n 13

(noting that some states have interpreted their state due-process protections for

unnecessarily suggestive identifications differently than the federal protections); cf.

Commonwealth v Crayton, 470 Mass 228; 21 NE3d 157 (2014) (limiting the admissibility

of in-court identifications under Massachusetts common law); Commonwealth v Collins,

470 Mass 255; 21 NE3d 255 (2014) (same).

4

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. See Perry, 565 US at 237-240

(summarizing Supreme Court caselaw on the issue). 9 Thus, the question is simply whether

first-time trial identifications fall within this framework. 10 In my view, a first-time trial

identification of a stranger will almost always violate due process under this framework. 11

8

In Sammons, the Court did not engage in the independent-basis inquiry because the

identification was erroneously admitted only through the testimony of an officer involved

in the improper identification procedure; the witness at issue declined to identify the

defendant at either the preliminary examination or trial. Sammons, 505 Mich at 39-40.

9

Due-process rights in this context belong exclusively to a criminal defendant and are not

shared by the state. See US Const, Am XIV (“[N]or shall any State deprive any person of

life, liberty, or property without due process of law[.]”) (emphasis added); Const 1963, art

1, § 17 (“No person shall . . . be deprived of life, liberty or property, without due process

of law.”) (emphasis added). As this Court recently recognized, “[t]he purpose of

codifications of rights in the federal Constitution, our Constitution, and the constitutions

of other states is to protect against” “ ‘wrongs committed under authority of the state.’ ”

Bauserman v Unemployment Ins Agency, 509 Mich 673, 696; 983 NW2d 855 (2022)

(citation omitted). Accordingly, the “double standard” between the rights of a defendant

and the rights of the prosecution that Justice ZAHRA identifies is an integral part of our

constitutional system.

10

For these reasons, Justice ZAHRA’s suggestion that the majority’s position is a radical

departure from historical practice and precedent is incorrect.

11

A preserved constitutional error requires reversal of a conviction unless the prosecution

can show that the error was harmless beyond a reasonable doubt. Sammons, 505 Mich at

56. As recognized in the majority opinion, defendant’s argument here was unpreserved,

so a more demanding prejudice standard applies.

5

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

6

courtroom.” Ante at 16 n 6. 12 As the Connecticut Supreme Court explained, if a trial

identification is insufficiently reliable to satisfy due process, “[t]he prosecutor may still

examine the witness . . . about his or her observations of the perpetrator at the time of the

crime, but the prosecutor should avoid asking the witness if the defendant resembles the

perpetrator.” Dickson, 322 Conn at 447. Contrary to Justice ZAHRA’s suggestion, these

requirements do not place an undue burden on the prosecution. The requirement that any

pretrial identification procedure be nonsuggestive is well established, as are the types of

identification procedures that meet this requirement. See Sammons, 505 Mich at 46-47.

There is quite simply no evidence that the state lacks the knowledge or the ability to use a

nonsuggestive pretrial identification procedure where one is necessary to ensure that a trial

identification is sufficiently reliable. Indeed, I can discern no principled reason why a

prosecutor would want to elicit an unreliable identification at trial from a witness who was

12

In limiting the admissibility of first-time trial identifications under Massachusetts

common law, the Massachusetts Supreme Court held that “there may be other grounds

[beyond those that would justify an out-of-court showup] that constitute ‘good reason’ for

an in-court showup . . . .” Crayton, 470 Mass at 242. As examples, the court pointed to

situations in which “the eyewitness was familiar with the defendant before the commission

of the crime” or where a police officer witnessed the crime and is merely confirming “that

the defendant is the person who was arrested for the charged crime.” Id. The court

reasoned that “in both of these circumstances, where the witness is not identifying the

defendant based solely on his or her memory of witnessing the defendant at the time of the

crime, there is little risk of misidentification arising from the in-court showup despite its

suggestiveness.” Id. at 243 (emphasis added). Similarly, the Connecticut Supreme Court

held that first-time trial identifications are permissible where there is no factual dispute as

to the identity of the perpetrator. Dickson, 322 Conn at 446. These scenarios are

inapplicable to this case, so it is unnecessary to address to what extent exclusion may be

required under these circumstances.

7

entirely unable to identify the defendant before trial, especially where the witness had no

relationship with the defendant before the alleged crime. 13

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:

13

Contrary to Justice ZAHRA’s suggestion, I do not interpret the Court’s opinion as

precluding the prosecution from calling an eyewitness to provide general statements on the

perpetrator’s appearance or to provide other testimony describing the crime. See post at

22 n 43 (ZAHRA, J., dissenting). Rather, the majority’s holding today only precludes first-

time trial identifications of the defendant as the perpetrator. However, where due process

requires exclusion of an identification, a prosecutor, in eliciting relevant general testimony

regarding the perpetrator and offense, cannot indirectly produce the functional equivalent

of an identification of the defendant as the perpetrator. See Dickson, 322 Conn at 447.

14

As I have suggested elsewhere, I am open to considering the approaches of other states

that have adopted a more robust exclusionary rule for unnecessarily suggestive

identification procedures than provided under federal Due Process law. See, e.g., People

v Bearden, 509 Mich 986, 987-988 (2022) (CAVANAGH, J., concurring) (noting that the

United States Supreme Court’s rejection of a per se exclusionary rule was based on a

prediction that a totality-of-the-circumstances rule would sufficiently deter the use of such

procedures and questioning whether that prediction has come to pass). Moreover, as

suggested by the briefs in this case from defendant and amicus The Innocence Project,

there has been “a growing awareness [among courts] that the continuing soundness of the

[reliability test set forth in Manson v Brathwaite, 432 US 98, 114; 97 S Ct 2243; 53 L Ed

2d 140 (1977)] has been undermined by a substantial body of peer-reviewed, highly

reliable scientific research.” United States v Greene, 704 F3d 298, 305 n 3 (CA 4, 2013);

cf. People v Parks, 510 Mich 225, 249; 987 NW2d 161 (2022) (relying on “undisputed

scientific evidence” when interpreting Michigan’s Constitution). I need not address here

whether this Court should adopt a different standard under Michigan law because, even

applying the generally recognized federal standard, I believe that a first-time trial

8

(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.

identification of a stranger will almost always create a substantial likelihood of

misidentification.

9

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 that defense counsel will point out the flaws in the identification and that

the jury will recognize such flaws. 16 But it is well established that an in-court identification

15

This Court has listed the following eight factors for determining whether there is an

independent basis, many of which overlap with the Manson reliability factors: (1) the

witness’s “prior relationship with or knowledge of the defendant,” (2) the witness’s

“opportunity to observe the offense,” (3) the “length of time between the offense and the

disputed identification,” (4) any discrepancies in the witness’s “pre-lineup or showup

description and defendant’s actual description,” (5) “any previous proper identification or

failure to identify the defendant” by that witness, (6) “any identification prior to lineup or

showup of another person as defendant” by that witness, (7) “the nature of the alleged

offense and the physical and psychological state of the victim,” and (8) “any idiosyncratic

or special features of defendant.” Gray, 457 Mich at 116 (cleaned up).

16

This argument is reflected in many decisions holding that first-time trial identifications

do not implicate due process. See, e.g., Garner v People, 436 P3d 1107, 1114, 1117, 1119-

1120; 2019 CO 19 (Colo, 2019).

10

that is tainted by a suggestive pretrial identification is subject to exclusion from trial,

notwithstanding its public nature. See, e.g., Moore v Illinois, 434 US 220, 227; 98 S Ct

458; 54 L Ed 2d 424 (1977); Gray, 457 Mich at 114-115. This is because, where the state

employs an unnecessarily suggestive identification procedure, “reliability is the linchpin in

determining the admissibility of identification testimony,” Manson, 432 US at 114, and

this reliability is assessed by reference to the extent of suggestiveness of the procedure and

other factors that might nonetheless render the identification reliable. 17 In other words, the

question is whether state action unnecessarily created an identification so unreliable that

the normal protections of trial are insufficient to satisfy due process. Id. at 112 (noting that

the Supreme Court’s cases “reflect the concern that the jury not hear eyewitness testimony

unless that evidence has aspects of reliability”). First-time trial identifications—which are

essentially formalized showups—fall comfortably within that category. 18 Moreover, as

17

Notably, while there is caselaw highlighting the hidden nature of pretrial identification

procedures and the importance of effective trial scrutiny of such identifications, see United

States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), the generally

recognized factors for assessing reliability and whether there was an independent basis for

an in-court identification do not account for the ability (or lack thereof) of the defendant

and the jury to personally view the unnecessarily suggestive identification procedure. See

Manson, 432 US at 114; Gray, 457 Mich at 116. For example, these factors do not suggest

that the existence of an audio- or videorecording of an unnecessarily suggestive pretrial

identification procedure weighs against exclusion of that identification from trial.

Moreover, these factors do not indicate that the effectiveness of defense counsel’s cross-

examinations—or their trial performance generally—is relevant to whether an

identification should have been excluded.

18

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

11

discussed later, conditioning exclusion on whether an unnecessarily suggestive showup

occurs in court or not would create perverse incentives and undermine the deterrent purpose

that exclusion serves in this context.

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

III. STATE ACTION AND PERRY v NEW HAMPSHIRE

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

juries to give undue weight to eyewitness testimony, even when such testimony is tainted

by an unnecessarily suggestive identification procedure.

19

In holding that first-time-in-court identifications are subject to due-process protections,

the Connecticut Supreme Court held that the state must request permission from the trial

court for such identifications and “the trial court may grant such permission only if it

determines that there is no factual dispute as to the identity of the perpetrator, or the ability

of the particular eyewitness to identify the defendant is not at issue.” Dickson, 322 Conn

at 446; id. at 444 (laying out in greater detail “the specific procedures that the parties and

the trial court must follow” in such circumstances). The Massachusetts Supreme Court

held that the prosecution bears the burden to file a motion in limine if it intends to elicit

such an identification and, once that motion is filed, the defendant bears the burden to show

that the identification would be unnecessarily suggestive and that there is not “good reason”

for such an identification. Crayton, 470 Mass at 243. I agree with the majority that, at

minimum, where there is a question as to the propriety of a first-time trial identification,

the prosecution bears the burden to establish sufficient indicia of reliability to present the

testimony to the jury. See ante at 17 n 8. Beyond that, given the lack of briefing on this

point, I would not endorse in this case any specific procedure for the admission of first-

time-at-trial identifications.

12

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

20

See, e.g., State v Doolin, 942 NW2d 500, 511-512 (Iowa, 2020) (citing cases to support

the conclusion that “[m]ost courts adjudicating due process claims after Perry allow first-

time, in-court identifications”); Garner, 436 P3d at 1118 (noting that only “[a] small

minority of courts have applied Biggers to first-time in-court identifications since Perry

was decided”); United States v Whatley, 719 F3d 1206, 1216 (CA 11, 2013) (holding that

“Perry makes clear that, for those defendants who are identified under suggestive

circumstances not arranged by police [including in-court identifications], the requirements

of due process are satisfied in the ordinary protections of trial”).

21

While this is the minority position among courts to have addressed the issue post-Perry,

this Court is not bound by other courts’ interpretations of Supreme Court precedent. See

People v Beck, 504 Mich 605, 625-629; 939 NW2d 213 (2019) (holding that considering

conduct of which a defendant had been acquitted when imposing a sentence violated

federal due process even though this holding represented the minority position on the

issue); see also Dickson, 322 Conn at 431 (arguing that “this is an issue for which the arc

of logic trumps the weight of authority”). Notably, this Court is not alone in concluding

post-Perry that at least some in-court identifications could raise federal due-process

concerns. See Dickson, 322 Conn at 431-434 (holding that such identifications violate due

process notwithstanding Perry); 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); Greene, 704 F3d at 305-310 (applying the Biggers factors to

an in-court identification post-Perry); Lee v Foster, 750 F3d 687, 690-692 (CA 7, 2014)

(inquiring into the suggestiveness and reliability of an in-court identification even after

Perry); City of Billings v Nolan, 385 Mont 190; 383 P3d 219 (2016) (same); United States

v Correa-Osorio, 784 F3d 11, 19-20 (CA 1, 2015) (asserting that “[o]ne could argue either

way” whether the Biggers analysis applies to in-court identifications after Perry); id. at 31-

32 (Barron, J., concurring in part and dissenting in part) (arguing that Perry “does not

shield from Biggers review any in-court identification that is untainted by a prior

suggestive out-of-court prompt”); Galloway v State, 122 So 3d 614, 663 (Miss, 2013)

13

As the majority notes, Perry did not address whether an identification elicited for

the first time at trial violates due process. In Perry, the witness saw through her window

the defendant standing next to a police officer shortly after the crime occurred. Perry, 565

US at 233-234. A month later, the witness was unable to identify the defendant in a pretrial

photographic array. Id. at 234. The legal dispute in Perry concerned whether admission

of the witness’s prearrest identification of the defendant as evidence at trial violated due

process. Id. at 234-235. Critical to this dispute was the lack of evidence that any state

actor intended the witness to see the defendant through her window. Id. at 240. Thus, the

overarching question was whether the Due Process Clause requires “trial judges to

prescreen eyewitness evidence for reliability any time an identification is made under

suggestive circumstances.” Id. (emphasis added).

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:

(stating that as of 2013, “[t]he United States Supreme Court has not decided whether

Biggers applies to an in-court identification not preceded by an impermissibly suggestive

pretrial identification”); Doolin, 942 NW2d at 543 (Appel, J., dissenting) (arguing that

“Perry has no applicability to first-time, in-court identification”) (italics omitted); Garner,

436 P3d at 1121, 1123 (Hart, J., dissenting) (arguing that Perry did not consider or resolve

whether due-process protections apply to in-court identifications).

14

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 such conduct makes sense, given that its prior caselaw addressed only

15

such situations. Perry, 565 US at 240. But Perry did not address whether the deterrent

rationale underlying the Supreme Court’s due-process caselaw would also apply to a

prosecutor eliciting a first-time trial identification.

In my view, the deterrence rationale endorsed in Perry clearly applies with equal

force to first-time trial identifications. Applying an exclusionary 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., MRPC

3.8 (describing the “Special Responsibilities of a Prosecutor”). Among other obligations,

the Due Process Clause (1) prohibits prosecutors from knowingly using perjured

testimony, 22 (2) prohibits prosecutors from using a defendant’s post-Miranda silence to

impeach a later exculpatory statement at trial, 23 and (3) imposes an affirmative obligation

on prosecutors to discover and disclose to the defendant exculpatory evidence known to

any governmental actor, including the police. 24 Moreover, when prosecutors engage in

functions “normally performed by a detective or police officer,” they are subject to the

22

Mooney v Holohan, 294 US 103, 112-113; 55 S Ct 340; 79 L Ed 791 (1935).

23

Doyle v Ohio, 426 US 610, 618; 96 S Ct 2240; 49 L Ed 2d 91 (1976).

24

Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995).

16

same constitutional limitations that govern officer behavior. 25 Due-process requirements

are not hurdles for prosecutors to circumvent, but rather are safeguards that further the

paramount role of prosecutors to ensure “that justice shall be done.” Berger v United

States, 295 US 78, 88; 55 S Ct 629; 79 L Ed 1314 (1935). Accordingly, there is no reason

why an unnecessarily suggestive identification procedure arranged by a prosecutor should

not implicate due process to the same extent as such a procedure arranged by the police.

Dickson, 322 Conn at 426.

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 vires”) (quotation marks and citation omitted).

25

Kalina, 522 US at 126 (holding that qualified immunity rather than complete immunity

applies where the prosecutor is acting as a police officer and not in the role of an advocate)

(quotation marks and citation omitted).

17

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.

26

See generally Moldowan v City of Warren, 578 F3d 351, 378 (CA 6, 2009) (noting the

distinct but interdependent roles played by the police and the prosecution in the state’s

search for truth in criminal matters).

27

See Kyles, 514 US at 438 (stating that there is no “serious doubt” that procedures and

regulations can be established to ensure that prosecutors comply with their obligation to

discover and disclose exculpatory evidence known to police officers).

18

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

19

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 255 (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

28

In rejecting the argument that due process does not require exclusion of all unreliable

eyewitness testimony, the Perry Court cited in passing its prior decision in Connelly, 479

US 157. Perry, 565 US at 242. Connelly held that “police overreaching” is an essential

requirement for exclusion of a confession obtained after an allegedly involuntary waiver

of Miranda rights. Connelly, 479 US at 170. The Court explained that, in the absence of

police compulsion, “suppressing respondent’s statements would serve absolutely no

purpose in enforcing constitutional guarantees,” id. at 166, given that Miranda’s function

is solely to “protect[] defendants against government coercion leading them to surrender

rights protected by the Fifth Amendment,” id. at 170 (emphasis added). This case is

distinguishable from Connelly because applying an exclusionary rule in this context would

deter state use of an unnecessarily suggestive identification procedure (an in-court

showup), which is precisely the role the Due Process Clause plays by excluding certain

unreliable identifications from trial. See Perry, 565 US at 241-242.

20

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. But again, it is well established that an in-court identification that is tainted

by a suggestive pretrial identification is subject to exclusion from trial, notwithstanding its

public nature. See, e.g., Moore, 434 US at 227; Gray, 457 Mich at 114-115. While Perry

emphasized other avenues for challenging unreliable identifications at trial, it did so in the

context of holding that exclusion is not required where there was no intentional state action

that created a substantial likelihood of misidentification, i.e., where exclusion would not

deter state use of an unnecessarily suggestive identification procedure. Perry, 565 US at

245-248. Perry clearly did not overrule prior caselaw indicating that due process requires

exclusion of some in-court identifications notwithstanding the other avenues a defendant

has for challenging such identifications. See Dickson, 322 Conn at 439 n 22. In other

words, Perry clarified that intentional state use of an unnecessarily suggestive

identification procedure is a prerequisite before due process mandates exclusion, but it did

not alter the standard for when exclusion is required if that prerequisite is satisfied.

21

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. MRE 403 (providing trial courts the discretion to exclude

relevant evidence “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury”).

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

22

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

IV. NO PLAIN ERROR OR INEFFECTIVE ASSISTANCE OF COUNSEL

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.

29

Justice ZAHRA criticizes the majority for its alleged “abject failure to fully consider”

Supreme Court precedent. However, both the majority and this concurrence rely on the

precedent directly applicable to this issue; namely, the precedent governing due-process

limitations on the admission of witness identifications at trial, with a special focus on Perry

v New Hampshire. While Justice ZAHRA disagrees with how we interpret this precedent,

it is readily apparent that we do not “fail[] to fully consider” it. Further, as noted earlier,

this Court is not bound by other courts’ interpretations of Supreme Court precedent, and

this Court is not alone in reading Perry as not foreclosing the position we adopt in this

case. See note 21 of this opinion.

23

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

30

Indeed, as the majority notes, there was a prior published Court of Appeals decision

holding, in a roughly analogous context, that it did not violate due process to permit a trial

identification where the only prior identification was at the preliminary examination.

People v Barclay, 208 Mich App 670, 675-676; 528 NW2d 842 (1995).

24

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

court “plainly” erred by not sua sponte excluding Byrd’s identification testimony. 31

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

31

See Crayton, 470 Mass at 245 (concluding that an in-court identification should have

been excluded but that the trial court did not abuse its discretion by allowing the testimony

in light of the existing caselaw at the time of trial).

25

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 a meritorious objection to Byrd’s trial identification, under these specific

26

circumstances, I cannot say that the law was sufficiently clear when trial occurred that

defense counsel performed deficiently by not recognizing that Byrd’s testimony should

have been excluded.

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

32

Because I believe defendant cannot show that any error was plain or that trial counsel

performed deficiently, I would not address to what extent he was prejudiced by the error

in this case. However, given the well-recognized tendency of juries to give undue weight

to identification testimony tainted by suggestive identification procedures (especially

identifications that, like in this case, are stated with confidence), I question whether the

lead opinion overly relies on defense counsel’s cross-examination when concluding that

defendant was not prejudiced by any error here.

33

I note that this Court regularly addresses the substantive merits of a constitutional issue

even when denying relief under a different prong of the plain-error standard and that such

holdings have been considered binding precedent. See, e.g., People v Lockridge, 498 Mich

358; 870 NW2d 502 (2015) (holding that Michigan’s sentencing guidelines violated the

Sixth Amendment and clarifying how this new holding would apply to future defendants

even though that defendant was not entitled to relief under plain-error review); People v

Carines, 460 Mich 750, 770; 597 NW2d 130 (1999); People v Pipes, 475 Mich 267; 715

NW2d 290 (2006); People v Borgne, 483 Mich 178, 197; 768 NW2d 290 (2009), aff’d on

reh in part 485 Mich 868 (2009); People v Vaughn, 491 Mich 642; 821 NW2d 288 (2012);

People v Beck, 510 Mich 1; 987 NW2d 1 (2022); People v Kowalski, 489 Mich 488, 506;

803 NW2d 200 (2011). See also People v Breidenbach, 489 Mich 1, 14; 798 NW2d 738

(2011) (overruling prior caselaw and denying the defendant relief based on the substantive

issue even though the argument was unpreserved so the defendant could have been denied

27

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

relief on different grounds); Hughes, 506 Mich 512 (holding that the Fourth Amendment

was violated and remanding to the Court of Appeals to address whether the defendant was

entitled to relief based on ineffective assistance of counsel); People v Smith, 438 Mich 715;

475 NW2d 333 (1991) (overruling prior caselaw interpreting the 180-day rule in MCL

780.313 even though the defendant waived the issue by pleading guilty), overruled by

People v Williams, 438 Mich 715 (2006).

28

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

reach those results using different legal rationales, I concur in part, dissent in part, and

concur in the judgment. As to the issue of first-time-in-court identifications of a defendant

by a stranger, I join Part II(A)(1) and (2) of the lead opinion in full, and I also concur with

the handling of defendant’s ineffective assistance of counsel claim in note 10 of Part

II(A)(3) of the lead opinion. I agree with Justice CAVANAGH’s additional analysis

regarding first-time-in-court identification of defendant by strangers and her handling of

the plain error analysis, and I therefore join her concurrence except for Part IV(B).

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 MCL

769.34(10), which provides that appellate courts must affirm a within-guidelines sentence

absent a guidelines scoring error or reliance on inaccurate information when imposing the

sentence. I agree with the lead opinion that at least the first sentence of this provision is

invalid and must be rendered advisory. I do not agree, however, that this conclusion is

alone compelled by People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and People

v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017).

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 MCL 769.34(10) based upon Lockridge

and Steanhouse because the prior constitutional defect at issue in those cases was already

cured, and MCL 769.34(10) does not constrain the sentencing discretion of trial courts or

mandatorily increase a defendant’s minimum term of punishment. As a result, I do not

agree that reliance upon these cases alone provides a pathway for striking down the relevant

portion of MCL 769.34(10). While I disagree with the lead opinion on that point, I

conclude that MCL 769.34(10) creates a different problem: it infringes a convicted

individual’s right to seek appellate review of the results of a criminal prosecution under

Const 1963, art 1, § 20. The statutory provision does this by effectively eliminating the

right to appeal any aspect of a sentencing decision that does not fall within the two

enumerated categories of defects and by requiring the Court of Appeals to affirm such

sentences without reviewing the merits of a defendant’s legal arguments. While our legal

analysis is different, I reach the same conclusion as the lead opinion. The first sentence of

2

MCL 769.34(10) must be severed to the extent it requires appellate courts to affirm within-

guidelines sentences. 1

I. LOCKRIDGE AND STEANHOUSE DO NOT, ON THEIR OWN, MANDATE

RENDERING MCL 769.34(10) ADVISORY

The ultimate question before the Court is whether MCL 769.34(10) remains

enforceable. That provision states 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.

[MCL 769.34(10) (emphasis added).]

On its face, the first sentence of MCL 769.34(10) allows an appellate court to disturb

a sentence falling within the applicable guidelines range in only two situations. Although

I agree with the lead opinion’s conclusion that MCL 769.34(10) cannot preclude appellate

courts from reviewing the trial court’s exercise of its discretion in crafting a sentence

following a criminal prosecution, I do not agree that the statute was “n

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