Ineffective assistance of counsel for failing to move to suppress a police officer’s impermissibly suggestive identification of defendant at the preliminary examination.

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.