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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 20, 2015

v No. 321937
St. Clair Circuit Court ROBERT EARL COWAN, LC No. 13-003248-FC

Defendant-Appellee.

Before: B ORRELLO , P.J., and J ANSEN and O WENS , JJ.

P ER C URIAM

.

A jury convicted defendant o f armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227 b. The jury acquitted defendant of first-degree hom e invasion, MCL 750.110a(2), and c onspiracy to commit both armed robbery and home invasion, MCL 750.157a. The court sente nced defendant as a second habitual offender, MCL 769.10, to a prison term of 15 to 40 yea rs’ for the robbery conviction, and a consecutive two-year sentence for the felony-firearm conv iction. For the reasons set forth in this opinion, we affirm defendant’s convictions, and remand to the trial court for a
determination of whether res entencing is warranted under People v Lockridge , ___Mich___; ___NW2d___(2015) (Docket No. 149073) and United States v Crosby , 397 F3d 103, 117-118 (CA 2, 2005).

I. BACKGROUND

Defendant’s convictions arise from a November 15, 2013, armed robbery inside a home in Port Huron where the following victims were present: David S cott, Matthew Miles, Kristopher McConnell, Susan Jackson, and Samantha Milligan. Jackson is th e mother of Scott and McConnell, and Milligan was McConne ll’s fiancée. Miles was a f riend who was visiting.

Jackson, Scott, McConnell, Miles, and Milligan all testified t hat they were at 923 Bancroft Street on the evening of November 15, 2013. McConnell testified that between 5:30 and 5:45 p.m., he walked down to the corner store to buy some d rinks and then returned home when an armed man suddenly ente red the house and stepped into t he front room. S cott described the man as black, tall, and stocky, and said he was wearing a c oat with a fur-trimmed hood. He
identified defendant as the robber. McConnell described the ma n as a “larger black male” and said he was wearing a dark-colored coat with a fur-trimmed hood and an orange cap or beanie.
He identified defendant as the robber. Miles described the man as a “big black guy” but “didn’t-2- see his face,” remarking that “[i]t was more like he had a mask on.” Miles could not identify defendant as the robber. Milligan described the perpetrator as “big” and said he was wearing a dark-colored hoodie that was “heavy like a coat,” with a fur-tr immed hood, a yellow or orange “winter beanie,” jeans, and blac k and red or bla ck and green sh oes. Miles identif ied defendant as the perpetrator. Jackson testified that the perpetrator was bl ack and wearing a green coat with “fuzz” around the hood. Jackson could not identify defendant a s the perpetrator.

Scott testified that defendant “asked for a guy named Duper.” Scott denied knowing who he was talking about, and defendant asked him if he “thought it was a game or if the gun was fake.” Defendant began to pace and said that he knew Duper was in the house and “kept asking
where he was.” Scott testified that defendant then ordered eve ryone to stand against the wall by the bathroom. Scott, McConnell, and Milligan did as they were told, but Miles remained where he was, “trying to convince [defendant] that he knew where Dupe r was.” The ploy did not work, and defendant “pistol whipped” M iles by striking him on top of the head with the gun and forced him “against the wall with the res t of us.” Defendant then “we nt through everybody’s pockets and wanted everybody’s phone and w allet or anything like that.” While defendant was checking McConnell for valuables, Scott removed his phone from his pocke t, hoping to hide it. Defendant saw this, went over and took the phone, hit Scott, and threw hi m to the floor. Defendant told him to lie face down. Photographs of Scott taken that night were a dmitted into evidence. They did not show any signs of injury.

Scott testified that once he w as on the floor, “another skinny black gentleman came to the back sliding door.” The man had covered his face with his shirt. The man started going through the house “looking for stuff.” Scott could not see what the ma n was doing, but he could “hear him moving around. Moving stu ff around.” Defendant addressed the man when he entered, but remained where he was, “making sure that we all stayed where we were supposed to be.” Scott explained that he was able to turn his head and sneak glances n ow and then. Eventually the two men left by the back door. Scott said that once he realized th e men had left, he and McConnell ran after the perpetrators. Scott ran down to the corner of Ba ncroft and 10th Streets, but did not see anyone. He returned home to wait for the police.

McConnell, Miles and Milligan offe red testimony similar to Sco tt’s. Jackson testified that she remained in the bathroom during the robbery, departing briefly upon the robber’s permission to obtain her oxygen ta nk. Jackson testified that s he did not see what was going on, but she heard people running up and down the stairs in the hous e.

Port Huron Police Officer Brandon Rossow was dispatched to the Bancroft Street house around 7:10 p.m. As he was driving up, Milligan flagged him do wn and reported “that they had just been robbed” by three African-American men. Milligan said that the intruders had been looking for someone who used to live there and that person migh t be living on Tunnel Street. Officer Rossow headed that way and found witnesses who reported seeing “three possible suspects that may have matched that description” heading south on 8th Street. The police set up a perimeter and a canin e unit was called in.

McConnell testified that he stopped at the corner store to inq uire about surveillance cameras. The clerk told him “that he did have a couple of came ras; that to send a detective over,
an officer over to look at it.” The clerk from the store testi fied to downloading the video footage-3- onto a flash drive and officers testified to collecting the fla sh drive and downloading the files onto a departmental computer. A camera covering the parking lo t showed a gray SUV similar to a Mercury Mountaineer or a Ford Explorer pull into the parking lot a short time before the robbery. Three or four people got out of the vehicle. A camer a inside the store showed McConnell making a purchase. The next person in line turned in a lottery ticket. That person was wearing “a puffier, bigger coat with fur around the hood an d a hoodie.” He also had on a yellow cap and a brightly-colored garment underneath the darker -colored coat. The clerk recognized that person as a regular customer and identified him as defendant. The video footage was admitted into evidence and played for the jury.

The police attempted to conduct a corporeal lineup, but defend ant refused to participate and persuaded other inmates who had been selected not to partic ipate either. The other inmates agreed to participate after bein g offered an extra meal, but de fendant still refused. The victims were called in for a photographi c lineup instead. Scott, McCon nell, and Milligan were each shown arrays in which defendant’s photograph was in a different position. Attorneys for the prosecution and the defense a pproved the photographs used in th e arrays.

Scott testified that the gunman’s hood was up, but he was not wearing a mask and Scott was able to see his face. Scott initially identified a man nam ed Jamal as the gunman. After reviewing the array more carefully, he changed his mind and ide ntified defendant. He rated the accuracy of his identification a s “an 8 or a 9” on a scale of 1 to 10.

McConnell testified that the gunman’s hood was up, but he was not wearing a mask and McConnell was able to see his face. McConnell saw two “very si milar” people who might be the gunman. He was not able to identify defendant because the pict ure showed him “sucking in his bottom lip” and McConnell could not be sure he was the one. Up on seeing defendant at the preliminary examination, McConne ll recognized him as the gunman . He was able to identify him by his prominent jaw and distinctive nose.

Milligan testified that the gunman’s hood was up, but he was n ot wearing a mask and she
was able to see his face. She also identified a man named Jama l as the gunman and said she was 85-percent sure her identification was correct. Upon seeing de fendant at the preliminary examination, Milligan got “a feeling . . . in the pit of [her] stomach” and “just knew” he was the gunman. She was 100 percent sure o f her identification of defe ndant.

Jackson testified that the gunman was not wearing a mask, but she got such a brief glimpse of him that she coul d not identify him and thus did not attend the lineup.

Miles testified that the gunman and his companions were all we aring masks that covered their faces below the eyes. He did not attend the lineup becau se his car broke down that day; he did not testify at the preliminary examination.

McConnell testified that the night before the preliminary exam ination, two women came to the house “asking me what they could give me to not show up in court.” He said, “[t]hey offered me anything I wanted not to come to court.” Specifical ly, “[t]hey offered me my PlayStation 3 back and an additional $300 to pay back what was taken.” The same two women appeared at the preliminary examination; one was defendant’s si ster, Christina Badger.-4- McConnell pointed them out to an officer and told him “that Ms. Badger said that she could get his things back.” One officer testified that Badger had once o wned a 2002 Mercury Mountaineer; the police were unabl e to locate that vehicle. An other testified that Badger’s son had been seen driving a Ford Explorer.

Defendant was convicted and sentenced as set forth above and t his appeal ensued. After filing a claim of appeal, this Court granted defendant’s motionfor a Ginther 1 hearing to address whether trial counsel was ineffective for failing to call an ex pert witness regarding eyewitness
identifications. 2 On remand, defendant moved for a new trial and the trial cour t held a Ginther hearing where the following relev ant evidence was introduced:

Robert Carson testified that he represented defendant in this case, but did not represent him at trial. Carson agreed tha t eyewitness identification was “a key issue in the case” because
there were “several witnesses that were unclear and unable to i dentify [defendant], but as time went by their recollection got b etter and better.” Carson test ified that he briefly thought about consulting an expert on eyewitness identification, but did not follow through, in part because he believed the court was unlikely to approve a request for appoin tment of an expert at public expense and in part because he withdrew from the case “about th ree weeks before trial.”

Sophia Curry, an attorney with s even years’ experience, testif ied that she was retained by defendant’s family and appeared in place of Carson sometime bet ween February 14 and 20, 2014. At that time, she knew that the trial was scheduled for March 4, 2014. Curry testified that
she had dealt with shortened tria l-preparation periods before a nd did not feel that she needed more time to prepare for defendant’s trial.

Curry knew that all the victims were white and defendant is Af rican American. Curry agreed that eyewitness identific ation was an issue in the case. Curry testified that, based on the discovery materials, she was aware of “the non-identification, o[f] the misidentification, o[f] the discrepancies . . . at the Preliminary Examination transcript, the discrepancies in picking out . . . Mr. Cowan.” Curry did not consult with an expert on eyewitness identification, did not retain such an expert, and did not request funds with which to retain one in part because she believed that the lack of a “proper police investigation” was a “bigger issue” than identification, and in part because she “did not believe that an expert would really a ssist a jury any more than the defense I had prepared.” Curry was also concerned about the po tential “conflict” that could result if she called an expert t o attack the victims’ identific ation of defendant when there was evidence that one of defendant’s family members tried to induce the victims not to testify by offering to return their property. 3

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).

2 People v Cowan , unpublished order of the Court of Appeals, entered February 1 0, 2015 (Docket No. 321937).

3 The record shows that Carson filed a combined witness list and notice of alibi defense; Christina Badger was one of the named witnesses. Curry noted t hat after learning about the offer-5- Curry testified that she prepared a defense to address the ide ntification issue by “read[ing] articles on effective cross-examination in eyewitnes s identification cases,” including an article about “the special challenges posed by cross-racial identification” and articles addressing the effect of traumatic events on identification. C urry also reviewed the photographic arrays shown to the victims, read the witness statements, and c onsidered the “the timing of identification,” presumably meaning that the victims did not id entify defendant at the first opportunity. Curry stated that s he did not need an expert to u ndermine the victims’ in-court identification of defendant, give n that they were “the same peo ple [who] couldn’t identify him before[.]” In other words, the problems with the identificatio n testimony could be elicited through cross-examination of the victims and could be understoo d by the jury without an expert’s assistance because they were “obvious.” An added cons ideration was the fact that presenting an expert to explain “a fairly obvious issue” and “p oint out the same things that I’ve pointed out” creates a risk o ffending, boring, or turning off t he jury.

Colleen Seifert, Ph.D., a psycho logy professor at the Universi ty of Michigan, was qualified as an expert in the field of memory as it relates to eyewitness identifications. Seifert testified that she reviewed “the discovery documents,” police r eports, the photographic arrays, “the preliminary trial informa tion,” and the trial transcripts. Based on her review of those materials, she concluded that expert testimony about eyewitness identification would have been appropriate in this case and she would have testified for the d efense had she been available at the
time of trial. She believed that it was not clear at trial that the victims did not immediately identify defendant during the photographic lineup and only iden tified him later in court.

Seifert indicated that a jury might have given less weight to the identification testimony had it heard from an expert about scientific studies showing th at in-court identification lacks “probative value” because “it’s evident to anybody who the defe ndant is so it’s not an
identification” based on actual recognition. Seifert opined th at her testimony would have provided “a way to help the jury understand how does memory wor k and how is it different from how I think it works” and would have explained “the pitfalls of human memory and how memory changes over time . . . .” She acknowledged that her te stimony “doesn’t tell them [the jurors] whether the witness is accurate or not, it just tells t hem what to consider when they’re thinking about whether the witness is accurate.” While some pr oblems with memory and identification are matters of common sense, the mere fact that identification evidence is presented “does influence your j udgment. You need to be on the alert for it t o influence you, and when you warn people like that , they are able to more accuratel y set aside information that biases
them.”

The trial court issued an opini on and order denying defendant’ s motion for a new trial. The trial court reasoned that trial counsel recognized the eyew itness identification issues in the case, conducted research about the issues, and concluded that s he “did not believe an expert was necessary to state the obvious and explain what is basic common sense.” Instead, counsel
concluded that she could deal with the identification issues bycross-examining the witnesses. Furthermore, counsel determined that attacking the police inves tigation was a stronger defense

to return the stolen property, she abandoned defendant’s propos ed alibi defense because Badger, who would have provided the alibi, also made the offer to retur n the stolen property.-6- and she had to balance the available defense theories after a r elative of defendant offered to bribe
the victims. The trial court f ound that defendant failed to sh ow that counsel’s performance fell below an objective standard of reasonableness.

The trial court also concluded that defendant could not show t hat counsel’s failure to call an expert prejudiced the def ense, explaining in part,

Expert testimony in this context only bears on th e credibility and weight to be given to the identifications in light of all the other evide nce in the case. It does not bear directly on the accuracy of a particular identificatio n. The possibility of additional evidence being presented that goes only to a witness es [sic] credibility when credibility is already at issue is not sufficient to cause a loss of confidence in the jury’s verdict. Defense expert eyewitness identificatio n testimony is not generally regarded as impeachment evidence because it does not directly
contradict the witness testim ony, it only questions its reliabi lity and weight.

Because Defendant has failed to show that counsel’s decision w as objectively unreasonable and because Defendant has failed to es tablish the alleged error has deprived him of a substantial defense he has failed t o establish his counsel was constitutionally ineffective.

On return from remand, defendant argues that the trial court e rred in denying his motion in addition to raising other argum ents related to the proceedin g.

II. ANALYSIS

Defendant first argues that the trial court erred in denying h is motion for a new trial
because trial counsel rendered ineffective assistance of counse l by failing to call an expert in eyewitness identific ation testimony.

We review a trial court’s ruling on a motion for a new trial f or an abuse of discretion. People v Russell , 297 Mich App 707, 715; 825 NW2d 623 (2012). Whether a defend ant has been denied effective assistance of counsel is a mixed question of fact and law. People v

LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s fa ctual findings, if any, are reviewed for clear error, whi le questions of l aw are review ed de novo. Id

.

To establish ineffective assi stance of counsel, a defendant mu st “show both that counsel’s performance fell below objective standards of reasonableness, a nd that it is reasonably probable that the results of the proceeding would have been different ha d it not been for counsel’s error.” People v Frazier , 478 Mich 231, 243; 733 NW2d 713 (2007).

“An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). “Ineffective assistance of counsel may be established by the fa ilure to call witnesses only if the failure deprives defendant of a substantial defense.” People v Julian

, 171 Mich App 153, 159; 429 NW2d 615 (1988). “A substantial defense is one that might have made a difference in the
outcome of the trial.” People v Kelly , 186 Mich App 524, 526; 465 NW2d 569 (1990).-7- Our Supreme Court has explained that “questions of eyewitness identification, fading memories, witnesses’ body language, and the like involve obviou s human behavior from which jurors can make ‘commonsense cre dibility determinations’” and t hus expert testimony is not

necessary. People v Kowalski , 492 Mich 106, 143; 821 NW2d 14 (2012) (footnote omitted).

In this case, with respect to Curry, 4 her failure to consult and retain an expert was not objectively unreasonable under the circumstances of this case, where the potential unreliability
of the witnesses’ identificati on testimony was effectively exam ined during the trial. Only three
of the five witnesse s, Scott, McConnell, and Milligan, identifi ed defendant as the gunman. Thus, the jury was free to consider that two of the witnesses could n ot make a positive identification. Of the three witnesses who claimed to have seen the gunman’s fa ce, Scott and Milligan initially identified the wrong man at a photographic lineup. Milligan wa s almost certain of her identification of the wrong man. Scott changed his mind and id entified defendant, but admitted
that he was not certain of his identification. McConnell was u nable to identify anyone at a photographic lineup. McConnell and Milligan, the two witnesses who did not identify defendant in the photographic lineup, first identif ied him in court.

An expert could not have opined on whether the eyewitness iden tifications were right or wrong. The most she could have done was give the jury things “ to consider when they’re thinking about whether the witness is accurate.” However, defe nse counsel was able to do that by cross-examining the witnesse s about their uncertainties and wavering identifications and by highlighting those matters during closing argument. Counsel th oroughly presented and explored the problems inherent with the w itnesses’ identifications of de fendant and the jury was free to consider the uncertainty and inconsistencies in the testimony i n its credibility determinations. In addition, counsel advanced the the ory that the investigation wa s inadequate and determined that this theory was stronger than the issues involving the eyewitne sses. Given counsel’s thorough cross-examination of the witnesses and pursuit of alternative d efense theories, we cannot conclude that her failure to present expert testimony fell belo w an objective standard of reasonableness or deprived defenda nt of a substantial defense. Frazier , 478 Mich at 243.

Next, defendant argues that the trial court violated his Sixth Amendment right to a jury when the court increased his recommended minimum sentencing ran ge based on judicial factfinding. We review this cons titutional issue de novo. LeBlanc , 465 Mich at 579.

Defendant’s Sixth Amendment challenge is governed by our Supre me Court’s recent
decision in Lockridge , ___ Mich at ___. In Lockridge , our Supreme Court addressed whether “a judge’s determination of the appropriate sentencing guidelines range . . . establishes a ‘mandatory minimum sentence,’ such that the facts used to score the offense variables must be admitted by the defendant or established beyond a reasonable do ubt to the trier of fact. . . .” Slip op. at 5-6 n 11. The Lockridge Court answered this question in the affirmative, holding that the sentencing guidelines violated the rule set forth in Alleyne v United States , 570 US___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). Id . at 1-2. Specifically, the guidelines were constitutionally

4 Defendant’s argument focuses on Curry and her representation a t trial; therefore, we address
this issue as a claim that Cu rry, not Carson, was ineffective.-8- deficient “[to] the extent to which the guidelines require judi cial fact-finding beyond facts admitted by the defendant or found by the jury to score [OVs] . . . that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the ‘manda tory minimum’ sentence under Alleyne .” Id

.

To remedy this deficiency, the Lockridge Court made the sentencing guidelines advisory only and struck down the requirement in MCL 769.34(3) “that a s entencing court that departs from the applicable guidelines range must articulate a substant ial and compelling reason for that departure.” Id . at 2. Henceforth, “a sentencing court must determine the app licable guidelines range and take it into account when imposing a sentence . . . [ however] a guidelines minimum sentence range . . . is advisory only and . . . sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness.” Id . Stated differently, a trial court may engage in judicial fact finding 5 to score the OVs, however, the resulting recommended minimum sentencing range is no longer binding on the court, but rather is advisory only. The court may impose a sentence that it deems reasonable and it need not arti culate substantial and compelling reasons for departing from the guidelines’ recommended sentenci ng range.

By finding defendant guilty of felony-firearm, the jury necess arily determined that defendant possessed a gun, which supports the five-point score for OV 2. MCL 777.32(1)(d). However, while there is evidence to support the trial court’s s coring of OVs 1, 3, 4, 12, and 19, the jury did not find these f acts beyond a reasonable doubt bec ause they were not elements of the charged offenses. Therefore, because defendant did not admit t hese facts, the sentencing court engaged in judicial fact-finding to score the OVs. Accordingly , because those facts established the guidelines’ minimum senten cing range, “an unconstitutional constraint [on the judge’s discretion] actually impaired th e defendant’s Sixth Amendment r ight.” Lockridge , ___Mich at___ (Slip op. at 32).

The Lockridge Court explained the remedy for this violation as follows:

Thus, in accordance with [ Crosby , 397 F3d at 117-118] . . . in cases in which a defendant’s minimum sentence was established by applica tion of the sentencing guidelines in a manner that violated the Sixth Amend ment, the case

should be remanded to the trial court to determine whether that court would have imposed a materially different sent ence but for the constitutional error . If the trial court determines that the answer to that question is yes, the court shall order resentencing. [ Id . at 34 (emphasis added).]

In this case, defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amend ment. Accordingly, we remand
this case to the trial court for a determination of whether the court would have imposed a materially different sentence had it been aware that the guidel ines’ recommended minimum sentencing range was advisory as opposed to mandatory. If the answer to this inquiry is yes,

5 Indeed, trial courts must continue to score the OVs, assessing the highest number of points supported by the facts. See Slip op. at 29 n 28, citing MCL 77 7.21(1)(a).-9- then the trial court must resentence defendant. If the answer to this inquiry is no, then defendant is not entitled to resentencing. As set forth by this Court in People v Stokes , ___ Mich App; ___ NW2d ___ (2015) (Docket No.321303), we remand the matter to the trial court to follow the Crosby procedure in the same manner as outlined in Lockridge for unpreserved errors. Defendant may elect to forego re sentencing by providing the tri al court with prompt notice of his
intention to do so. If notification is not received in a timel y manner, the trial court shall continue
with the Crosby remand procedure as explained in Lockridge

.

III. STANDARD 4 BRIEF

Finally, in a late-filed Standard 4 brief incorrectly labeled as a motion for a new trial in the trial court, defendant raise s several arguments. We review these unpreserved claims for plain error affecting defendant ’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

Defendant argues that the pros ecution filed an untimely “notic e to seek enhancement of sentence” in violation of MCR 6.112(F), which in turn, deprived him of “a fair and impartial probable cause determination.” This argument lacks merit. MCR 6.112(F) requires that a habitual offender notice be filed “within 21 days after the def endant’s arraignment on the information . . . or, if arraignment is waived, within 21 days after the filing of the information.” Here, the register of actions indicates that the arraignment oc curred on January 9, 2014. A habitual offender notice was included in the November 27, 2013, felony complaint, the November 29, 2013, felony warrant, and the January 3, 2014, inf ormation. Accordingly, defendant was notified of the pot ential enhanced sentence withi n the timeframe required under MCR 6.112(F).

Next, defendant appears to chall enge the magistrate’s probable cause determination to support the issuance of the arres t warrant. This argument also fails. Here, the felony complaint listed the charged offenses, the statutory citations for the ch arges, the factual predicate for the charges, and was sworn before the magistrate. The complaint th erefore satisfied the basic requirements of MCR 6.101(A). Similarly, the magistrate’s prob able cause determination to issue the warrant was not erroneous. A finding of probable cau se is proper where the complaint and supporting facts are sufficien t to allow the magistrate “to make the judgment that the charges are not capricious and are sufficiently supported to justify br inging into play further steps of the criminal process.” Jaben v United States

, 381 US 214, 224-225; 85 S Ct 1365; 14 L Ed 2d 345 (1965). Probable cause to support an arrest “looks only to the probabil ity that the person
committed the crime as established at the time of arrest” witho ut regard to whether the prosecution can ultimately prove guilt at trial. People v Cohen , 294 Mich App 70, 76; 816 NW2d 474 (2011) (citation omitted). Here, the complaint listed the items alleged to have been stolen, the date and location of the alleged offenses, the name s of the victims, and the nature and circumstances surrounding the alleged offenses. This was suffi cient information to allow the magistrate to find probable cause t o issue the arrest warrant.

Defendant next argues that a pretrial photographic lineup was “unduly suggestive” in violation of his due pr ocess rights.-10- “The fairness of [an] identific ation procedure must be evaluat ed in the light of the totality of the circumstances. The test is the degree of suggestion inh erent in the manner in which the suspect’s photograph is presente d to the witness for identifica tion.” People v Lee , 391 Mich 618, 626; 218 NW2d 655 (1974). An identification procedure violates due process “when it is so impermissibly suggestive that it gives rise to a substantial li kelihood of misidentification.” People v Gray , 457 Mich 107, 111; 577 NW2d 92 (1998). Improper suggestiveness often arises where a witness is shown only one person or a group of people w here one person is singled out in some way. Id

.

Defendant contends that police used a photograph of a man name d Bernard in the lineup after defense counsel objected to that photograph. This argume nt is not supported by the record. Instead, Detective Chris Frazier t estified at trial as follows:

Q . Can you describe for the ladies and gentlemen of the jury th at process of how you make the determination to admit these or to use thes e photos?

A . In this particular lineup after the corporeal lineup did not proceed, there was a Defense Attorney there, the Prosecutor was there, and the photos that we used in this lineup were the individuals that were going to be in the corporeal lineup . . . So the Defense Atto rney, Prosecutor, reviewed the photographs of these potential people in the cor poreal. The Prosecutor was fi ne. The Defense objected to one of the indivi dual’s pictures so that was taken out. I then prepared a lineup from the approved photos from both of these attorneys . [Emphasis added.]

Thus, contrary to defendant’s argument, the record supports that the photographic array contained only photographs approved by defense counsel. Furthe rmore, as discussed below, the photo array as a whole was not unduly suggestive.

Defendant also contends that th e photograph array violated due process because Frazier admitted that some of the photographs were of individuals with dark complexions, which contrasted with defendant’s lighter complexion. However, altho ugh the photographic array contained some photographs of i ndividuals with darker complexio ns than defendant, this did not render the array impermissibly suggestive. As noted, defense c ounsel agreed to the photographs that were used and only some of the individuals had darker comp lexions than defendant. Other individuals had lighter complexions like defendant. Thus, the array as a whole did not improperly single defendant out and it was not “so impermissibl y suggestive that it [gave] rise to
a substantial likelihood of misidentification.” Gray , 457 Mich at 111. Accordingly, because the array was not conducted in a ma nner that violated defendant’s d ue process rights, his arguments regarding its admission at trial and cumulative error also fail as a matter of law.

We affirm defendant’s convictions and remand for further proce edings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Donald S. Owens