People v. Posey

Docket Number162373
Decision Date31 July 2023
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAMETRIUS BENJAMIN POSEY, Defendant-Appellant.
CourtMichigan Supreme Court

Argued on application for leave to appeal January 11, 2023.

Justices: Brian K. Zahra, David F. Viviano, Richard H Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H Bolden


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Court of Appeals Murray, P.J., and Fort Hood and Letica, JJ., granted the motion and remanded for resentencing in an unpublished order.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 U.S. 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...

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