By order of April 4, 2018, the prosecuting attorney was directed to answer the application for leave to appeal the July 6, 2017 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and we direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).
We further ORDER the Saginaw Circuit Court, in accordance with Administrative Order 2003-03, to determine whether the defendant is indigent and, if so, to appoint attorney Christine DuBois, if feasible, to represent the defendant in this Court. If this appointment is not feasible, the trial court shall, within the same time frame, appoint other counsel to represent the defendant in this Court.
The appellant shall file a supplemental brief within 42 days of the date of the order appointing counsel, addressing whether (1) the show-up identification procedure was impermissibly suggestive, see People v. Kurylczyk , 443 Mich. 289, 303-306, 505 N.W.2d 528 (1993) ; (2) if so, whether the identification was nonetheless sufficiently reliable so that it was properly admitted, Perry v. New Hampshire , 565 U.S. 228, 238-239, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012) ; and (3) if improperly admitted, whether it is more probable than not that the erroneous admission of the identification through the detective's testimony affected the outcome of the trial. People v. Lukity , 460 Mich. 484, 496, 596 N.W.2d 607 (1999).
In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.