Identification evidence; Suggestive procedures; Independent basis; People v Posey; People v Gray; Sentencing; Proportionality; Presumptive proportionality of a within-guidelines sentence; Scoring of OV 4; MCL 777.34(1)(a); Right to resentencing

The court held that while the identification procedure was unnecessarily suggestive, there was an independent basis for the victim’s (L) identification of defendant-Rivers. It rejected his proportionality challenge to his within-guidelines sentence, but concluded that he was entitled to resentencing due to an error in scoring OV 4. Thus, it affirmed his convictions of carjacking, first-degree home invasion, robbery, unlawful imprisonment, and unlawfully driving away a motor vehicle, but vacated his sentence and remanded for resentencing. The court noted that L was shown two photos, but both depicted Rivers. It could “see no meaningful distinction between the presentation of a single” photo as in Gray and the presentation of multiple photos “depicting the same individual.” The court also found that L’s subsequent identification of Rivers at the preliminary exam was unnecessarily suggestive. L had already seen him at the adjourned preliminary exam “earlier that month, during which he entered the courtroom in handcuffs and with police escorts.” But the court held that the trial court did not clearly err in admitting L’s identification because it had an independent basis. L “was able to observe Rivers for ‘a very long time.’ Neither of them had face coverings.” While she “recalled that it was ‘kind of dim’ in her apartment that day” it was around 11:00 am and she “testified that, because some daylight was coming in through the blinds, she did not have any difficulty seeing Rivers.” In addition, her description of him to a responding police officer was “accurate, if somewhat generic.” As to his sentencing arguments, his “consecutive sentence of 35 years—30 years for carjacking and 5 years for first-degree home invasion—is within the guidelines’ recommended range.” Given the circumstances of the offender and the offense, the court found that his age, by itself, did “not overcome the presumption of proportionality, especially given his lengthy criminal record and the seriousness of his crimes both past and present.” But it held that the trial court erred in scoring 10 points for OV 4, and removing those points reduced his OV level.