People v. Posey

Decision Date22 October 2020
Docket NumberNos. 345491,351834,No. 346039,s. 345491,346039
Citation964 N.W.2d 862,334 Mich.App. 338
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dametrius Benjamin POSEY, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Sanchez Quinn, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Gabrielle O'Connor, Assistant Prosecuting Attorney, for the people in Docket Nos. 345491 and 351834.

State Appellate Defender (by Adrienne N. Young) and Ronald D. Ambrose for Dametrius B. Posey in Docket Nos. 345491 and 351834.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Special Assistant Prosecuting Attorney, for the people in Docket No. 346039.

Sanchez Quinn, in propria persona, and Arthur H. Landau for Sanchez Quinn in Docket No. 346039.

Before: Boonstra, P.J., and Markey and Hood, JJ.

Markey, J.

In these consolidated appeals, defendants Dametrius Posey and Sanchez Quinn appeal by right their convictions by separate juries at a joint trial. Posey was convicted of two counts of assault with intent to commit murder (AWIM), MCL 750.83 ; two counts of assault with intent to do great bodily harm less then murder (AWIGBH), MCL 750.84 ; carrying a concealed weapon (CCW), MCL 750.227 ; arming oneself with a weapon with unlawful intent, MCL 750.226 ; felon in possession of a firearm (felon-in-possession), MCL 750.224f ; and six counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced Posey as a third-offense habitual offender, MCL 769.11, to 22 to 40 years’ imprisonment for the AWIM convictions, 9 to 20 years’ imprisonment for the AWIGBH convictions, and 4 to 10 years’ imprisonment for the CCW, arming-with-unlawful-intent, and felon-in-possession convictions, which are all to be served concurrently but consecutively with concurrent five-year terms of imprisonment for the six felony-firearm convictions. After this Court granted Posey's motion to remand for corrections to the jury verdict and for resentencing,1 the trial court vacated the AWIGBH convictions and the two associated felony-firearm convictions and resentenced Posey for the remaining convictions to the same terms of imprisonment previously imposed. Quinn was convicted of two counts of AWIGBH, single counts of CCW, arming oneself with a weapon with unlawful intent, and felon-in-possession, and four counts of felony-firearm. The trial court sentenced Quinn as a third-offense habitual offender to 9 to 20 years’ imprisonment for the AWIGBH convictions and 4 to 10 years’ imprisonment for the CCW, arming-with-unlawful-intent, and felon-in-possession convictions; those sentences are all to be served concurrently with each other but consecutively with concurrent two-year terms of imprisonment for the felony-firearm convictions. Posey appealed his convictions and the original judgment of sentence in Docket No. 345941, and he appeals the amended judgment of sentence entered on resentencing in Docket No. 351834. Quinn appeals his convictions and judgment of sentence in Docket No. 346039. We affirm the convictions and sentences with respect to both defendants.

I. FACTUAL SUMMARY

This case arises from a shooting outside the Super X Market, which is located at the corner of Charles Street and Sparling Street in Detroit. On Sunday, October 8, 2017, Terrence Byrd and his cousin Dwayne Scott were talking together outside the Super X Market near Byrd's Chevrolet Trailblazer. Two men, one described as dark-skinned and the other as being lighter-skinned, approached and entered the store. After a short period, the two men exited the store and flanked Byrd and Scott. The dark-skinned man produced a handgun and pointed it at Scott, while the other man pointed a gun at Byrd. Byrd, who had a permit to carry a concealed weapon, pulled out his firearm in response and gunfire rang out. Byrd discharged all 17 rounds in his gun in shooting at Quinn and Posey. He believed that he struck both assailants. Byrd could not say whether he or Posey shot first. Byrd testified that Quinn did not shoot first and that he did not even see Quinn fire his gun. A spent casing, however, was found stuck in a gun that was dropped at the scene and linked to Quinn. Although Byrd was not injured during the episode, Scott was shot in his hip and left arm.

Although Byrd failed to identify Posey or Quinn in photo lineups shortly after the incident and, in fact, selected other individuals in the arrays, he identified both of them at trial as the culprits, with Posey being the dark-skinned person and Quinn being the lighter-skinned person. In a pretrial photo lineup, Scott identified Posey as one of the shooters, but he was unable to identify the other shooter. Scott could not identify either defendant at the preliminary examination or trial. A surveillance video and photos of the events as they transpired outside the market were admitted into evidence. They showed clear pictures of the dark-skinned man, but the lighter-skinned man was wearing a hoodie and was more difficult to see.

Posey and Quinn were both treated for gunshot wounds

at area hospitals after the shooting. Quinn made statements at the hospital to the police in which, after first lying, he admitted being present during the shooting at the Super X Market. A video of that interview was admitted into evidence.2 When police spoke to Posey at the hospital, he initially provided officers with a false name. Following defendants’ convictions, these appeals ensued.

II. DOCKET NOS. 345491 & 351834—DEFENDANT POSEY
A. DUE PROCESS AND IN-COURT IDENTIFICATION

Posey argues that he was denied his right to due process of law when Byrd was allowed to identify him at trial. We disagree. Because Posey did not object to Byrd's identification testimony at trial, this issue is unpreserved. We review unpreserved constitutional issues for plain error affecting substantial rights. People v. McNally , 470 Mich. 1, 5, 679 N.W.2d 301 (2004). Thus, to succeed, Posey must show that there was an error, that the error was clear or obvious, and that the error affected his substantial rights. People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). An error affects substantial rights when it impacts the outcome of the lower-court proceedings. Id. Additionally, reversal is only warranted when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when the error seriously affected the integrity, fairness, or public reputation of the judicial proceedings independent of the defendant's innocence. Id.

A defendant's right to due process is implicated if an in-court identification was preceded by a suggestive out-of-court identification. Neil v. Biggers , 409 U.S. 188, 196-198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). "In order to sustain a due process challenge, a defendant must show that the pretrial identification procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification." People v. Kurylczyk , 443 Mich. 289, 302, 505 N.W.2d 528 (1993) (opinion by GRIFFIN , J.). A suggestive identification procedure can arise when a witness is called by the police and is told that the police have arrested the right person, when a witness is shown only one person, or when a witness is shown a group of individuals wherein one person, the defendant, is uniquely singled out in some way, leading the witness to presume that he or she is the perpetrator. People v. Gray , 457 Mich. 107, 111, 577 N.W.2d 92 (1998). "If the trial court finds that the pretrial procedure was impermissibly suggestive, testimony concerning that identification is inadmissible at trial." Kurylczyk , 443 Mich. at 303, 505 N.W.2d 528.3 But an in-court identification may be allowed and admitted despite an impermissibly suggestive procedure if an independent basis for the in-court identification can be established that is untainted by the improper pretrial identification procedure. Id. "[R]eliability is the linchpin in determining the admissibility" of possibly tainted identification testimony. Manson v. Brathwaite , 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

To determine if a witness has an independent basis for an in-court identification, the Michigan Supreme Court has identified eights factors a court should evaluate:

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 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 showup 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....
8. Any idiosyncratic or special features of defendant. [ People v. Kachar , 400 Mich. 78, 95-96, 252 N.W.2d 807 (1977).]

While Scott identified Posey in a pretrial photo lineup, Scott could not identify Posey at trial. Scott's pretrial identification of Posey is not at issue. Byrd did not identify Posey in a photo lineup before trial; he selected another individual. He did, however, identify Posey at trial. Byrd indicated that he realized he had identified the wrong person in the photo array after he saw Posey in a subsequent news broadcast. On appeal, Posey acknowledges that Byrd...

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