In
People v Clay, Unpub Per Curiam Opinion, (#319450, 8/20/2015) the Court
of Appeals held that defendant was denied the effective assistance of counsel
because counsel failed to move to suppress a police officer’s impermissibly
suggestive identification of defendant at the preliminary examination.
Whether
a defendant has been deprived of the effective assistance of counsel presents a
mixed question of fact and constitutional law. People v Trakhtenberg,
493 Mich 38, 47 (2012). A trial court’s findings of fact are reviewed for clear
error, and questions of constitutional law are reviewed de novo. Id. The United
States and Michigan Constitutions guarantee a defendant the right to effective
assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish
ineffective assistance of counsel, the defendant must show that “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the
outcome would have been different.” Trakhtenberg, 493 Mich at 51.
Effective assistance of counsel is presumed, and a defendant bears a heavy
burden of proving otherwise. People v Solmonson, 261 Mich App 657, 663
(2004). Stated otherwise, a defendant must overcome a strong presumption that
the assistance of his counsel was sound trial strategy. Trakhtenberg,
493 Mich at 52. “Because the defendant bears the burden of demonstrating both
deficient performance and prejudice, the defendant necessarily bears the burden
of establishing the factual predicate for his claim.” People v Carbin,
463 Mich 590, 600 (2001).
An
identification procedure that is unnecessarily suggestive and conducive to
irreparable misidentification constitutes a denial of due process. People v
Williams, 244 Mich App 533, 542 (2001). If the trial court finds the
procedure was impermissibly suggestive, evidence concerning the identification
is inadmissible at trial unless an independent basis—one that is untainted by
the suggestive pretrial procedure—can be established for the in-court
identification. Id. at 542-543.
By
failing to move to suppress the officer’s identification defendant’s counsel’s
performance fell below an objective standard of reasonableness. On this record,
based on the totality of the circumstances, a reasonable probability exists
that the first part of a motion to suppress would likely have been granted
because the pretrial identification procedure was so suggestive that it led to
a substantial likelihood of misidentification, particularly because it had been
three years since the officer had observed defendant from 100 yards away and
defendant was the only noncaucasian seated at the defense table. At that
point, because the pretrial identification was so suggestive that it could lead
to a substantial likelihood of misidentification, the trial court would have
needed to determine if the officer had an independent basis for an in-court
identification that was untainted by the suggestive pretrial procedure. Williams,
244 Mich App at 542. Appropriate factors in considering whether a witness and
had independent basis for an in-court identification include: (1) the witness’s
prior knowledge of the defendant, (2) the witness’s opportunity to observe the
criminal during the crime, (3) the length of time between the crime and the
disputed identification, (4) the witness’s level of certainty at the prior
identification, (5) discrepancies between the pretrial identification
description and the defendant’s actual appearance, (6) any prior proper
identification or failure to identify the defendant, (7) any prior
identification of another as the culprit, (8) the mental state of the witness
at the time of the crime, and (9) any special features of the defendant. People
v Gray, 457 Mich 107, 116 (1998).
But
for counsel’s failure to move to suppress the officer’s identification of
defendant there would not have been sufficient evidence of a nexus between
defendant and the marijuana and guns to show defendant was in possession of the
marijuana and guns. But for counsel’s error, a reasonable probability exists
that the result of the proceeding would have been different. Accordingly, the
trial court erred in concluding that defendant was not prejudiced by counsel’s
error. Rather, defendant was denied the effective assistance of counsel because
“(1) counsel’s performance fell below an objective standard of reasonableness
and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome would have been different.” Trakhtenberg,
493 Mich at 51.
