lneffective assistance of counsel; Failure to move to suppress a witness’s first-time-in-court identification; People v Posey; Failure to present expert testimony about identification reliability; Prejudice; The trial court’s failure to orally instruct the jury; Defense counsel’s failure to request the trial court do so; Sentencing; Scoring of OVs 6 & 17; MCL 777.36(1)(a); MCL 777.47(1)(a) & (2); Presentence investigation report (PSIR)

Concluding that defendant was not entitled to reversal based on his ineffective assistance of counsel claims and the trial court’s failure to orally instruct the jury because he failed to show prejudice, the court affirmed his convictions. As to his sentencing, it upheld his 50-point score for OV 6 and while 0 points rather than 10 should have been scored for OV 17, this did not alter his guidelines range. Thus, it affirmed his AWIM, FIP, and felony-firearm convictions and his sentences of 25 to 80 years for AWIM and FIP plus 2 year for felony-firearm. It remanded for correction of his PSIR to reflect 0 points for OV 17. The court concluded that the victim’s (D) first-time-in-court identification was tainted by a police detective’s (J) “telling him that the shooter had been caught on video and arrested.” In addition, there were factors suggesting that D’s identification was unreliable, including that he lost his glasses during the incident. An expert (Dr. S) testified at the Ginther hearing “that traumatic or stressful situations lessen the accuracy of an eyewitness. [D] also did not know defendant,” and S testified “it is more difficult for people to accurately identify people unknown to them[.]” The issues of weapons-focus and cross-racial identification may also have impacted D’s “ability to accurately identify the shooter. Considering the combination of [J’s] statements to [D] with the suggestiveness of [D] seeing defendant for the first time at trial, it fell below an objective standard of reasonableness for defense counsel not to object to the identification[.]” The court also found it arguably fell below an objective standard of reasonableness to not at least consult an expert witness about eyewitness identification. But defendant could not show a “reasonable probability that a different outcome would have occurred even if [D’s] identification had been suppressed or defendant presented” such expert testimony. It noted that he “conceded at trial that he was the person shown in” a witness’s (B) recording. B “immediately and confidently identified defendant in a photo lineup the same day as the shooting.” She specifically testified about seeing him shooting the gun. Also, the jury heard a defense witness’s testimony that contradicted other witness accounts, “and determined that defendant was the shooter.”