PEOPLE OF MI V PHILLIP BASKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 1, 1997
Plaintiff-Appellee,
v
No. 189606
Recorder’s Court
LC No. 94-003864 FC
PHILLIP BASKINS,
Defendant-Appellant.
Before: Cavanagh, P.J., and Doctoroff and D.A. Teeple*, JJ.
MEMORANDUM.
Defendant appeals by right his bench trial convictions for robbery armed, unlawfully driving
away an automobile, and felony firearm. This case is being decided without oral argument pursuant to
MCR 7.214(E).
Defendant was taken into custody after an exchange of gunfire with a police officer, in
consequence of which he was contemporaneously hospitalized. This made defendant reasonably
unavailable for a corporeal identification proceeding. See People v Derbeck, 202 Mich App 443; 509
NW2d 534 (1993). With respect to the actual photographic identification proceeding, defendant bears
the burden, in order to suppress any resulting identification, of establishing that the procedure was so
suggestive in light of the totality of the circumstances that it led to a substantial likelihood of
misidentification. People v Kurylczyk, 443 Mich 289, 302-303; 505 NW2d 528 (1993). However,
defendant made no effort to introduce the actual photographs used in the proceeding, so the trial court
could evaluate them with respect to suggestiveness, and the eyewitness testified that her identification of
defendant was based, not on the photographic identification proceeding, but on having viewed him at
the time of the crime and on his most remarkable identifying characteristic, a chipped front tooth. The
trial court did not clearly err or abuse its discretion in rejecting defendant’s contention of impermissible
suggestiveness.
However, since defendant was in custody at the time, he had a right to counsel for purposes of
that identification proceeding. People v Kurylczyk, supra, 443 Mich at 302. Assuming defendant’s
* Circuit judge, sitting on the Court of Appeals by assignment.
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right to counsel at the proceeding was violated, the prosecution bears the burden of showing by clear
and convincing evidence an independent basis for the in-court identification. People v Franklin
Anderson, 389 Mich 155, 188; 205 NW2d 461 (1973). Here, the victim’s testimony again establishes
a satisfactory independent basis, particularly in the absence of evidence that the photographic
identification proceeding was unduly suggestive.
Defendant’s remaining contention is that the trial court erred in scoring 25 points under OV 2 of
the sentence guidelines. At defendant’s motion for resentencing, the trial court noted that although it had
sentenced defendant within the guidelines, the sentence imposed, without respect to guideline scoring
issues, was appropriate to the facts and circumstances of the case. Of itself, this would render moot
any issue concerning guideline scoring. People v Hull, 437 Mich 868; 462 NW2d 585 (1990).
Furthermore, this type of scoring challenge does not present a cognizable basis for appellate relief.
People v Mitchell, 454 Mich 145; ___ NW2d ___ (1997).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Martin M. Doctoroff
/s/ Donald A. Teeple
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