In-court identification; Impermissibly suggestive procedures claim; People v Barclay; People v Posey; Ineffective assistance of counsel; Failure to object; Juror qualifications; MCL 600.1307a; When relief is warranted based on a disqualified juror; MCL 600.1354(1); The Sixth Amendment’s “Vicinage Clause”; People v Gayheart; Structural error; Applicability of People v Yarbrough; People v Miller; Sentencing; Scoring of PRV 5; MCL 777.55(1)(c); Habitual-offender enhancement notice; MCL 769.13; MCR 6.112(F); People v Head; Proportionality; Tether fees; MCL 769.1k(2); People v Godfrey

The court rejected defendant’s claim that a store employee’s identification of him at the preliminary exam was based on impermissibly suggestive procedures and thus, “the employee’s subsequent identification at trial should have been excluded.” It also rejected his alternative argument that defense counsel was ineffective for failing to object to the identification at trial. His claims that (1) the presence of a juror who was not a county resident on his jury warranted reversal, (2) the trial court erred in scoring 10 points for PRV 5, (3) he should not have been sentenced as a fourth-offense habitual offender, (4) his sentence was not proportional, and (5) the trial court erred in imposing $1,365 in tether fees all failed. He was convicted of first-degree retail fraud and sentenced to 46 months to 20 years. The court noted that his identification contentions were arguably foreclosed by Barclay. He relied on Posey, reasoning that, under “Posey, because a first-time-in-court identification of a perpetrator at trial is tainted, it follows that the” store employee’s first-time identification of him at the preliminary exam similarly was tainted. The court disagreed, noting that “Posey specifically considered and distinguished Barclay and its preliminary” exam identification. It concluded that “Posey arguably is limited to cases in which the initial identification occurs at trial, not when the initial identification occurs at the preliminary” exam. The record here showed that the store “employee first identified defendant at his preliminary examination before identifying [him] again at trial. Because the employee’s first identification occurred at the preliminary examination, the trial court did not need to establish an independent basis for the employee’s in-court identification to be admissible and did not plainly err by failing to do so.” The court added that, even if it plainly erred in admitting the “employee’s identification testimony at trial, defendant does not show that the improper identification affected the outcome of the proceedings. Surveillance footage also captured the image of the suspect and his distinctive tattoos. The vehicle that the suspect used in the retail theft was connected to defendant, and there was testimony from a police officer that defendant admitted that he was the individual the employee described pushing a cart full of unpaid merchandise toward the door.” The court found that the “facts, taken together, are strong evidence of defendant’s guilt regardless of the employee’s identification testimony.” Affirmed.