In-court eyewitness identification reliability; People v Posey; Admission of prejudicial evidence; MRE 403; People v Gursky; Ineffective assistance of counsel at sentencing; Strickland v Washington

The court held that defense counsel rendered ineffective assistance at sentencing by failing to prepare a mitigation memorandum after obtaining an adjournment for that purpose, requiring resentencing. Defendant was convicted by a jury of open murder and felony-firearm arising from a fatal shooting during a marijuana transaction, supported by eyewitness identification, videos, photographs, and cell-phone location evidence. The trial court sentenced defendant without receiving the promised mitigation memorandum. On appeal, the court held that admission of the eyewitness’s in-court identification did not violate due process because, even applying Posey, the identification was reliable where the witness had a clear opportunity to observe defendant and “there were no material discrepancies between the description of the offender given by the victim’s girlfriend and the appearance of defendant.” The court also held that admission of a video depicting defendant discussing firearms was not unfairly prejudicial because its probative value outweighed any prejudice where defendant made statements that “could be interpreted as an admission,” and any error in admitting certain photographs was harmless given “more than ample other evidence admitted for the jury to convict defendant.” The court further held that sentencing counsel’s failure to submit a mitigation memorandum constituted deficient performance because “it is difficult to conceive of a circumstance where failing to prepare a mitigation memorandum would be a reasonable strategic decision,” and the omission was prejudicial where the trial court relied on an inaccurate understanding of defendant’s background that the mitigation report “directly counters.” Affirmed in part, vacated in part, and remanded for resentencing.