MSC questions whether erroneous admission of improper identification testimony at trial constitutes reversible error

In People v. McCaskill, Case No. 149347,in lieu of granting leave to appeal, the Michigan Supreme Court vacated the judgment and remanded the case to the Court of Appeals to reconsider whether any error in admitting the police officer’s improper identification testimony was harmless. The Court of Appeals found that the error was not harmless beyond a reasonable doubt. The Supreme Court noted that this standard applies to preserved constitutional questions. People v. Carines, 460 Mich. 750 (1999). For nonconstitutional preserved error, a defendant has the burden of establishing a miscarriage of justice under a “more probable than not” standard. People v. Lukity, 460 Mich. 484 (1999). The Supreme Court further instructed that, if the Court of Appeals determines that the error was harmless, it must consider the remaining issues presented by the defendant on appeal. The Supreme Court denied the applications in all other respects, unpersuaded that the remaining questions presented should be reviewed at this time, and did not retain jurisdiction.

Defendant Jimmy Earl McCaskill initially appealed by right to the Court of Appeals his jury-trial convictions of armed robbery, MCL 750.529, possession of a firearm by a felon (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced as a third habitual offender, MCL 769.11, to concurrent prison terms of 20 to 40 years for the armed robbery conviction and 3 to 5 years for the felon-in-possession conviction, as well as a consecutive term of two years for the felony-firearm conviction.

The Court of Appeals agreed with the defendant’s argument that the province of the jury was invaded when a police officer testified that defendant was the person depicted in still photographs that had been created for the police from a surveillance video. The Court of Appeals concluded that the error was not harmless beyond a reasonable doubt because the police officer’s opinion testimony bolstered the credibility of other witnesses’ identifications of the defendant, which defense counsel tried to undermine as part of its strategy throughout trial. The Court of Appeals therefore reversed and remanded for a new trial.

Having reversed and remanded, the Court of Appeals declined to address the following issues which were also on appeal: the nonsubstantive error contained in the presentence investigation report regarding the date of the offense; the defendant’s argument that the jury erred by finding him guilty of felon-in-possession when the jurors were never informed that the parties had stipulated to his prior felony conviction, and the trial judge’s scoring of the sentencing variables under the United States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). The Court of Appeals did, however, reject the defendant’s challenge of the admissibility of other acts evidence, concluding that the prosecution sufficiently described the similarities between the acts to establish that they were part of a common scheme under MRE 404(b), and that the probative value was not substantially outweighed by the risk of unfair prejudice under MRE 403.