Motion to suppress an identification; Due process; Whether a photo array was excessively suggestive; People v Gray; People v Kurylczyk; Ineffective assistance of counsel; Motion to suppress evidence obtained from a search of defendant’s (a parolee) residence; Samson v California; People v Richards; Jury composition; Fair cross-section of the community requirement; People v Bryant; Sentencing; Cruel &/or unusual punishment; 25-year minimum sentence under MCL 769.12(1)(a); People v Burkett; Motion for a mistrial; Parole status reference; Police witness testimony; People v Fomby; MRE 701; Missing-witness jury instruction; MCL 767.40a; Distinguishing People v James; “Listed prior felony” under MCL 769.12

The court held that defendant’s motions to suppress were properly denied where (1) “the photographic identification procedure was not impermissibly suggestive” and (2) as to the evidence obtained from a search of his home, the trial court did not clearly err in finding that he accepted the search condition of his parole. The court rejected his ineffective assistance of counsel claims and found that he failed to show plain error as to his jury composition claim. It also rejected his cruel and/or unusual punishment challenge to his mandatory 25-year minimum sentence pursuant to MCL 769.12(1)(a) and found that he did not show any error occurred related to that statute. It concluded the trial court did not abuse its discretion in denying his motion for a mistrial and his request for a missing-witness instruction, or err in permitting a police witness’s testimony under MRE 701. Thus, the court affirmed his convictions of AWIM, felony-firearm, CCW, and FIP, as well as his sentences (as a fourth-offense habitual offender) to concurrent terms of 300 to 600 months for AWIM, 36 to 120 months for CCW and FIP, and 2 years for felony-firearm. He moved to suppress witness-H’s pretrial identification and any in-court identifications, asserting the police violated his due process rights by presenting “a photo array that was excessively suggestive[.]” The court determined that defendant’s “facial tattoo did not meaningfully differentiate him from the other participants in the lineup. The electronic reproductions of the photo array . . . indicate that if the tattoo was visible to [H], it was not a distinctly prominent element of the” photo. Further, the record showed that H “exhibited ‘100%’ confidence in her identification at the time of the photo array. Additionally, [H] testified that she spoke with the defendant that night, despite not having met him before, and she recounted how he leaned against her car while conversing with her and ‘rolling a blunt.’” As to defendant’s contention “the police conduct in administering the photographic identification procedure was coercive” he did not offer “any binding legal authority supporting his assertion that any of the police actions were legally improper[.]” As to the search of his home, since he “was on parole, he did not have a legitimate expectation of privacy under the Fourth Amendment, and law enforcement officers were constitutionally permitted to conduct a search without any level of suspicion.” Further, it appeared “that the officers had at least reasonable suspicion regarding [his] involvement in” a home invasion.