Opinion
SC: 164628 COA: 353197
01-26-2024
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger Dewayne WILLIAMS, Defendant-Appellant.
Genesee CC: 17-041328-FC
Order
By order of October 4, 2022, the application for leave to appeal the May 26, 2022 judgment of the Court of Appeals was held in abeyance pending the decision in People v Posey). On order of the Court, the case having been decided on July 31, 2023, 512 Mich. 317, — N.W.2d —— (2023), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Zahra, J. (concurring).
As I stated in my separate writing in People v Posey, in-court identification of a defendant by a sworn witness, alone, is not an unduly suggestive method of identification resulting from "improper law enforcement activity." Unlike the out-of-court contexts found by the United States Supreme Court to trigger a prescreening procedure under the line of cases decided under Stovall v Denno, the Due Process Clause does not similarly subject highly relevant and historically practiced in-court identifications to judicial exclusion, solely as a result of a witness identifying the defendant while he sits at a defense table. The Court’s decision in Posey is wildly out of step with federal law on this question, as well as the traditions and history of the United States. Furthermore, I am aware of no caselaw standing for the proposition that showup identifications and their equivalents (standard in-court testimony, according to the opinions in Posey) would be exempt from prescreening under the Stovall line simply because a prior identification is consistent, i.e., the showup identification is not a "first time" identification. A showup identification is not admissible solely as a result of a witness’s identification of the defendant in a prior context lacking improper state suggestion, while that would of course be relevant in a reliability analysis under the Due Process Clause. In fact, the United States Supreme Court has repeatedly emphasized that showup equivalents may be excluded from judicial prescreening when nonsuggestive identifications are unavailable.
People v Posey, 512 Mich. 317, 346-371, — N.W.2d —— (2023) (Zahra, J., concurring in part and dissenting in part).
Perry v New Hampshire, 565 U.S. 228, 233, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012).
Stovall v Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), overruled in part on other grounds by Griffith v Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
See Posey, 512 Mich. at 451-461, 451 n 7, and 459 n 27, — N.W.2d —— (Zahra, J., concurring in part and dissenting in part).
Id. at 451 n 7, 455, 459 n 27, 461, and 464-465 nn 36-37, — N.W.2d —— (collecting sources).
See defendant’s application for leave to appeal, pp. 3-7 (discussing the witnesses’ identifications as being without "independent basis"); Posey, 512 Mich. at 339 (opinion by Bolden, J.) (stating that standard, "first time" in-court identifications may violate 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," such as a showup); id. at 372, 382 (Cavanagh, J., concurring) (referring to traditional in-court testimony that includes a "[f]irst-time trial identification[ ]" as amounting to a court-conducted, "formalized showup[ ]" and reiterating that "it is beyond any reasonable doubt that a first-time trial identification is at least as suggestive as a pretrial showup" (emphasis altered); id. at 390, — N.W.2d —— (Welch, J., concurring in part, dissenting in part, and concurring in the judgment) ("I agree with Justice Cavanagh’s additional analysis regarding first-time-in-court identification of defendant by strangers ….").
Manson v Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (describing the reliability factors courts must consider before admitting suggestive identifications under the Due Process Clause); see also note 12 of this statement.
See Stovall, 388 U.S. at 302, 87 S.Ct. 1967 (explaining that a showup was necessary because it was "the only feasible procedure" in the moment and nonsuggestive methods were "out of the question") (quotation marks and citation omitted); Simmons v United States, 390 U.S. 377, 385, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (explaining that the justification of a photo showup to apprehend an at-large suspect was "hardly less compelling" than the showup in Stovall); United States v Hawkins, 499 F.3d 703, 710 (CA 7, 2007) ("To determine whether, under the circumstances, the suggestive identification was unnecessarily so, we must determine whether there was a good reason for the failure to resort to a less suggestive alternative.") (emphasis added).
Moreover, defendant did not file a motion to suppress the identifications at issue, and the trial court was never given the opportunity to review the record and provide factual findings. Even if the Stovall line of cases is expanded to include traditional in-court identifications untainted by extraneous suggestive circumstances, at most, the remedy would be a remand for the trial court to provide findings of fact in the first instance. This is especially true in the context of plain error, a standard that could preclude relief altogether. Stovall prescreening is an incredibly fact-intensive inquiry that requires scrutiny, for instance, into when the government was first made aware of the identification, prior descriptions of the assailant, and the demeanor and confidence of the witness. If the witness provided a statement of identification to the government through the witness’s own volition and personal conduct (e.g., the witnesses in this case finding defendant’s picture on Facebook, talking to other witnesses, or approaching the prosecution without government involvement) prior to giving sworn testimony on a witness stand, that fact would certainly affect a reliability analysis. And the very fact that trial courts would be required to sift through extensive factual records to determine whether an in-court identification is in fact a "first time" identification, or whether the witness identified the defendant previously at another time without police coercion, lays bare the infirmity of the distinctions averred to in the Posey opinion.
See People v Beilman, 512 Mich. 933, 994 N.W.2d 752, 767-769 (2023) (Zahra, J., dissenting) (discussing the importance of trial court findings in the context of motions to suppress and collecting sources); United States v Outland, 993 F.3d 1017, 1023 (CA 7, 2021) ("[Trial] courts are much better suited to undertake these tasks. ‘While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living.’ "), quoting June Med. Servs. v Russo, 591 U.S. —, ——, 140 S.Ct. 2103, 2141, 207 L.Ed.2d 566 (2020) (Roberts, C.J., concurring); United States v Esquivel-Rios, 725 F.3d 1231, 1238-1239 (CA 10, 2013) (Gorsuch, J.) (explaining that the more "prudent" and "restrained" course is to remand to the issue to the trial court for fact-finding).
See, e.g., United States v Hamilton, 587 F.3d 1199, 1217 n 9 (CA 10, 2009) (noting that "[b]y failing to present the claims to the district court," the defendant "effectively prevented the court from making factual findings that would be germane to the disposition of [the] claims," which prevented defendant from meeting the plain-error standard); United States v Olivier-Diaz, 13 F.3d 1, 5 (CA 1, 1993) ("Where the error defendant asserts on appeal depends upon a factual finding the defendant neglected to ask the district court to make, the error cannot be ‘clear’ or ‘obvious’ unless the desired factual finding is the only one rationally supported by the record below."); see also United States v Burke, 633 F.3d 984, 989-990 (CA 10, 2011) (explaining, in the context of a Fourth Amendment dispute, the notable concerns with reviewing fact-based suppression issues for plain error); United States v Chavez-Valencia, 116 F.3d 127, 132 (CA 5, 1997), superseded by rule on other grounds as stated in United States v Vasguez, 899 F.3d 363, 372 (CA 5, 2018) ("If, at trial, the government assumes that a defendant will not seek to suppress certain evidence, the government may justifiably conclude that it need not introduce the quality or quantity of evidence needed otherwise to prevail. Also, on appeal the government will be forced to rely on an underdeveloped record in defending itself."); People v Grant, 445 Mich. 535, 548, 520 N.W.2d 123 (1994), abrogated in part on other grounds by People v Carines, 460 Mich. 750, 597 N.W.2d 130 (1999) (setting out the standard for plain error and indicating that "federal courts’ approach" to the topic is "highly instructive").
Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243 (noting factors to be considered, including "the witness’ degree of attention" and "the level of certainty" of the witness’s identification); see also, e.g., United States v Hawkins, 499 F.3d 703, 710 (CA 7, 2007) (relying on fact-finding from the trial court to determine whether a suggestive identification was reliable).
See Simmons, 390 U.S. at 385-386, 88 S.Ct. 967 (relying on the existence of other identifications of the defendant to weigh reliability); Brathwaite, 432 U.S. at 115, 97 S.Ct. 2243 (citing sworn testimony as to how confident the witness was when he provided an out-of-court showup identification); Neil v Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (citing the witness’s history of prior identifications in analyzing reliability); United States v Meyer, 359 F.3d 820, 826 (2004) (explaining that the identification "did not appear to stem from" unconstitutionally suggestive circumstances but instead from the witness’s own recollection).
Posey. 512 Mich. at 339, — N.W.2d —— (opinion by Bolden, J.) (stating that standard, "first time" in-court identifications may violate 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," such as a showup); id. at 372, 382, — N.W.2d —— (Cavanagh, J., concurring) (referring to traditional in-court testimony that includes a "[f]irst-time trial identification[ ]" as amounting to a court-conducted, "formalized showup[ ]" and reiterating that "it is beyond any reasonable doubt that a first-time trial identification is at least as suggestive as a pretrial showup") (emphasis altered); id. at 390, — N.W.2d —— (Welch, J., concurring in part, dissenting in part, and concurring in the judgment) ("I agree with Justice Cavanagh’s additional analysis regarding first-time-in-court identification of defendant by strangers ….").
I concur in the Court’s order to deny leave to appeal in this case. However, the legal uncertainty and flaws underlying this Court’s Posey opinion will continue. Very soon, the holding in Posey will control the outcome of criminal prosecutions in Michigan, whether through trial court exclusion of highly relevant in-court testimony or appellate court reversal of an otherwise valid conviction. At that time, additional review in federal court would be warranted.
Cavanagh, J. (concurring).
I agree with the Court’s order denying leave to appeal. While the Court of Appeals’ analysis here is outdated in light of People v Posey, 512 Mich. 317, — N.W.2d —— (2023), this defendant is nonetheless not entitled to relief.
Defendant Roger Williams was convicted by a jury of second-degree murder and lesser firearms offenses. On appeal, he argues there were unreliable and unnecessarily suggestive in-court identifications that violated his due-process rights. In particular, he argues that two different witnesses identified him for the first time at trial as the shooter. According to defendant, one witness had previously told the police that he did not remember the shooter’s face, and the other witness had heard rumors that defendant was the shooter and looked up his Facebook profile prior to identifying him in court. The Court of Appeals rejected defendant’s argument and affirmed his convictions in an unpublished decision. People v Williams, unpublished per curiam opinion of the Court of Appeals, issued May 26, 2022, 2022 WL 1701702 (Docket No. 353197), pp. 1-2. The Court of Appeals reasoned, citing its prior decision in People v Posey, 334 Mich App 338, 359, 964 N.W.2d 862 (2020), that "if there is no pretrial identification facilitated by law enforcement, there can be no suggestive out-of-court identification, and therefore, the in-court identification is admissible and questions regarding the identification’s validity are left for the jury to assess." Williams, unpub. op. at 2.
Defendant appealed here, and we held this case in abeyance pending resolution of defendant’s appeal in Posey, which the Court had scheduled for oral argument. See People v Williams, 979 N.W.2d 843 (2022); People v Posey, 508 Mich. 940, 964 N.W.2d 362 (2021). After hearing argument in Posey, this Court vacated the judgment of the Court of Appeals and held 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." Posey, 512 Mich. at 339, — N.W.2d —— (opinion by Bolden, J.), see also id. at 361, — N.W.2d —— (Cavanagh, J., concurring in part and concurring in the judgment); id. at 390, — N.W.2d —— (Welch, J., concurring in part, dissenting in part, and concurring in the judgment).
In light of this Court’s Posey opinion, the Court of Appeals here erred by rejecting defendant’s due-process argument solely because there was no pretrial identification procedure arranged by law enforcement. And defendant makes a serious argument that the in-court identifications here may have violated due process. However, as in Posey, defendant did not object during trial to the in-court identifications, so he must demonstrate either plain error or ineffective assistance of counsel to obtain relief. For the reasons stated in my Posey concurrence, I do not believe that defendant can, given the state of the law when trial occurred, demonstrate either that trial counsel performed deficiently or that the trial court committed "plain" error, so he is not entitled to relief. See Posey, 512 Mich. at 386-389, — N.W.2d —— (Cavanagh, J., concurring in part and concurring in the judgment). "However, the Court’s decision [in Posey] 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." Id. at 389, — N.W.2d ——.
I note that defendant has not argued he is actually innocent of these offenses. See MCR 6.508(D)(2), (3); MCR 6.502(G)(2).
Welch, J., joins the statement of Cavanagh, J.