Due process; In-court eyewitness identification; Whether the identification was unduly suggestive; People v Posey; Ineffective assistance of counsel; People v Randolph; Failure to raise a futile objection; People v Zitka; Authentication; MRE 901(a) & (b)(4); People v Berkey

The court held that two in-court eyewitness identifications of defendant were not unduly suggestive, and that his counsel was not ineffective for failing to object. It also held that the trial court did not abuse its discretion by admitting a letter he purportedly wrote. He was convicted of second-degree murder, felony-firearm, CCW, and FIP for a shooting at a liquor store. On appeal, the court rejected his argument that two in-court eyewitness identifications were unduly suggestive. “[L]ike in Posey, in this case, there was no evidence that either of these two eyewitnesses participated in any pretrial identification facilitated by law enforcement. Although defendant contends that one of the witnesses participated in a pretrial identification because he looked up defendant on Facebook prior to trial, there was no law enforcement activity and as a result, this does not amount to a pretrial identification facilitated by law enforcement. Because there was no pretrial identification or improper law enforcement activity, and therefore no suggestive out-of-court identification, the credibility of these in-court eyewitness identifications was properly left to the jury.” In addition, counsel was not ineffective for failing to move to suppress the identifications because raising an objection would have been futile, and because defendant failed to demonstrate “a reasonable probability that the outcome of the proceedings would have been different had defense counsel” done so. The court also rejected his claim that the trial court abused its discretion by admitting a letter purportedly given to the unregistered Uber driver who drove him to and from the liquor store because there was no proof he wrote it. It noted the letter “contained distinctive characteristics relevant to this case that outside parties likely would not be privy to, which indicated that defendant wrote the letter.” Affirmed.