Identity; People v Yost; Suggestive identification procedure; People v Sammons; Civilian-initiated identification procedure; Van Hook v Anderson (6th Cir); Ineffective assistance of counsel; People v Head; Trial strategy; People v Traver; Sentencing; Scoring of OV 4 (serious psychological injury requiring professional treatment); MCL 777.34(1)(a); Effect of the fact treatment has not been sought; MCL 777.34(2); Scoring of OV 13 (continuing pattern of criminal behavior); MCL 777.43(1)(c)

The court held that the trial court did not err by admitting evidence of a suggestive identification procedure that was not used by law enforcement or by scoring OVs 4 and 13, and that defendant was not denied the effective assistance of counsel. He was convicted of armed robbery, felonious assault, and felony-firearm. The trial court sentenced him as a fourth offense habitual offender to 25 to 90 years for armed robbery, 4 to 15 years for felonious assault, and 2 years for felony-firearm. On appeal, the court rejected his argument that the trial court erred by admitting evidence of a suggestive identification procedure, noting he “failed to cite a single case where an identification procedure used by a civilian was excluded for being too suggestive.” The court also rejected his claim that he was denied his right to the effective assistance of counsel, noting decisions as to “‘what evidence to present, whether to call witnesses, and how to question witnesses are presumed to be matters of trial strategy.’” In addition, as to the decision not to call his ex-wife, “it was reasonable for defense counsel to decline to call a witness who could not account for defendant’s location at the time of the offense and could only speculate that he was in bed.” Further, as to another potential witness, “she did not submit an affidavit, so this court cannot know whether she would have even testified that she did not see defendant.” And although an instruction limiting the jury’s use of dog-tracking evidence “should have been given, and defense counsel erred by failing to” request it, defendant failed to show it “would have resulted in a different outcome at trial.” Finally, the court held that OVs 4 and 13 were properly scored. “The victim’s statement that he was traumatized and that he had stopped leaving his window open suggested an ongoing psychological injury that stemmed directly from the armed robbery.” And this criminal episode consisted of several felonious acts. “First, defendant, while armed with what appeared to be a firearm, stole the boyfriend’s bag out of the car—this constituted an armed robbery. Then, defendant pointed his gun at the girlfriend—this constituted a felonious assault. Finally, defendant pointed his gun at the boyfriend—this constituted a second felonious assault.” Affirmed.