People of Michigan v. Elisah Kyle Thomas ( 2016 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    December 8, 2016
    Plaintiff-Appellant,
    v                                                                  No. 326311
    Wayne Circuit Court
    ELISAH KYLE THOMAS,                                                LC No. 14-009512-FC
    Defendant-Appellee.
    Before: GADOLA P.J., and SERVITTO and SHAPIRO, JJ.
    PER CURIAM.
    The prosecution appeals as of right an order dismissing charges of armed robbery,
    MCL 750.529, assault with intent to commit murder, MCL 750.83, assault with intent to do great
    bodily harm less than murder, MCL 750.84, carrying a dangerous weapon with unlawful intent,
    MCL 750.226, possession of a firearm during the commission of a felony (felony-firearm),
    MCL 750.227b, and carrying a concealed weapon, MCL 750.227. We reverse and remand.
    On October 17, 2014, an assailant robbed and then shot the victim in this case. The
    victim had just left his grandmother’s house and was walking down a street in the city of Detroit
    on his way to a Coney Island restaurant when he passed a man. The victim purchased food at the
    Coney Island, then walked to a nearby convenience store and gas station where he purchased a
    soda. He left the gas station and continued walking. About fifteen minutes after first seeing the
    man on the street, the same man approached the victim, pulled a nine millimeter handgun from
    his waist area, pointed the gun at the victim’s chest, and demanded that the victim give him
    everything in his pocket. The victim gave the assailant $10, but the assailant demanded more.
    The assailant then fired two shots, one at the ground and one in the air, and began to feel in the
    victim’s pocket. The victim pushed the assailant and ran. When he made it across the street, the
    victim turned and threw his soda at the assailant. The assailant chased the victim and fired two
    more shots, hitting the victim in the left leg with the fourth shot. The victim was able to make
    his way to his church nearby where his pastor called the police.
    The victim was taken to the hospital shortly thereafter. Before being put in the
    ambulance, the victim told police that the assailant was dark-skinned, was about the victim’s
    own size, being 5 feet 9 inches tall and about 145 pounds, and had been wearing a black hood.
    Detroit police officer Samellia Howell responded to the scene of the shooting and obtained the
    victim’s description of the assailant from other officers. She canvased the area and saw
    -1-
    defendant, who matched the description, near a gas station across the street from the scene of the
    shooting. Howell stopped defendant, patted him down for weapons, and ran his name through
    the Law Enforcement Information Network (LEIN), learning that defendant did not have any
    convictions or outstanding warrants. Howell took a photograph with her cell phone of defendant
    in front of the gas station. She did not arrest defendant, believing that she did not have probable
    cause.
    Howell arrived at the hospital approximately five to ten minutes later, and asked the
    victim to describe the assailant. According to Howell, the victim said that the assailant was a
    black male, approximately 5 feet 9 inches tall and 200 pounds, between 15 and 20 years old, and
    wearing dark clothing. The victim did not recall whether the assailant had any facial hair.
    Howell believed that the description matched defendant. Howell then showed the victim the
    photograph on her cell phone that she had just taken of defendant and asked the victim “was this
    him?”1 The victim started to cry and within seconds stated “that’s him” thereby identifying
    defendant as the assailant.
    Defendant was arrested and charged with armed robbery, assault with intent to murder,
    assault with intent to do great bodily harm less than murder, carrying a concealed weapon,
    carrying a weapon with unlawful intent, and felony-firearm. At the preliminary examination
    before the district court, the victim testified that the assault took place between 8:00 p.m. and
    9:00 p.m., that it was dark out and there was little lighting, and that the assailant was wearing all
    black with a hood that was worn up, obscuring the assailant’s hair but not his face. The victim
    could not discern if the assailant had facial hair. The victim further testified that the gun was a
    black and gray nine millimeter handgun and that the assailant held it in his right hand. He
    further testified that the robbery happened “so fast my adrenalin was up.” The district court
    bound defendant over as charged.
    Before the trial court, defendant moved to suppress the photographic identification at the
    hospital, arguing that it was impermissibly suggestive and thereby violated defendant’s right to
    due process. Defendant further moved to suppress the victim’s later in-court identification of
    defendant, arguing that there was no independent basis to support the in-court identification,
    which was tainted by the earlier photographic identification. The trial court agreed, suppressed
    both identifications, and dismissed all charges against defendant.
    On appeal, the prosecution argues that the circuit court improperly suppressed the
    victim’s identifications of defendant. We agree.
    A trial court’s determination in a suppression hearing regarding the admission of
    identification evidence will generally not be reversed unless clearly erroneous. People v
    McDade, 
    301 Mich App 343
    , 356; 836 NW2d 266 (2013). More specifically, when reviewing a
    trial court’s ruling on a motion to suppress, we review de novo the trial court’s rulings on
    questions of law and on constitutional issues considered in the motion. People v Keller, 479
    1
    When asked what her exact words were, Howell testified “I didn’t say was this the guy who
    shot you. I said was this him? I showed him the picture and he said, that’s him, that’s him.”
    -2-
    Mich 467, 473-474; 739 NW2d 505 (2007). We review the trial court’s findings of fact for clear
    error. People v Jenkins, 
    472 Mich 26
    , 31; 691 NW2d 759 (2005). We find clear error to exist if
    we are left with a definite and firm conviction that a mistake was made. McDade, 301 Mich App
    at 356. The trial court’s application of constitutional standards is not entitled to the same
    deference given to factual findings, however.2 Jenkins, 
    472 Mich at 31
    .
    In this case, the trial court granted defendant’s motion to suppress the photographic
    identification determining that it was so suggestive that it violated defendant’s right to due
    process. Whether a photographic identification procedure violates due process, US Const, Ams
    V, XIV; Const 1963, art 1, § 17, depends upon the totality of the circumstances. People v
    Woolfolk, 
    304 Mich App 450
    , 457; 848 NW2d 169 (2014). When a photographic identification
    procedure is so impermissibly suggestive that it creates a substantial likelihood of
    misidentification the procedure violates the defendant’s right to due process. 
    Id.
     The defendant,
    however, bears the burden of proof on the issue. See People v Kurylczyk, 
    443 Mich 289
    , 302;
    505 NW2d 528 (1993) (opinion by GRIFFIN, J.)
    Showing a witness a single photograph is considered to be one of the most suggestive
    photographic identification procedures. People v Gray, 
    457 Mich 107
    , 111; 577 NW2d 92
    (1998). Improper suggestibility may occur when a person is in some way singled out, such as
    when the police suggest to the witness that the police have apprehended the right person. 
    Id.
    But a one-person confrontation is not per se a violation of due process, People v Hallaway, 
    389 Mich 265
    , 282; 205 NW2d 451 (1973), and may be a reasonable police practice to immediately
    determine whether the suspect is connected with the crime.3 See People v Winters, 
    225 Mich App 718
    , 725, 728; 571 NW2d 763 (1997).
    The relevant inquiry is whether the identification procedure was unduly suggestive in
    light of all of the surrounding circumstances,4 including (1) the opportunity of the witness to
    2
    The dissent argues that we overlook the standard of review because we do not specify which of
    the trial court’s findings of fact were clearly erroneous. That standard would only be applicable
    were there a dispute regarding the factual findings. Here, the parties do not argue, and we do not
    conclude, that the trial court’s findings of fact were erroneous; indeed, the parties essentially
    agree regarding the facts. Rather, the question before this Court is whether the trial court
    correctly applied the law to those facts, necessitating de novo review.
    3
    The dissent notes testimony that Howell was not familiar with Detroit Police Department
    photographic identification procedures. This argument presents a “red herring.” The only
    question for purposes of our analysis is whether under these circumstances the identification
    procedure used was unduly suggestive. We are not called upon to explore the knowledge base of
    the officer; even if Howell had been thoroughly informed of the department’s procedures, the
    events remain the same, and our analysis would be the same.
    4
    Contrary to the assertion of the dissent, we have not overlooked the lack of Michigan case law
    directly on point with this case. If such a case existed our task would be much simpler. In the
    absence of a case directly controlling this issue, we must analyze the facts of this case in light of
    the authority that does exist.
    -3-
    view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy
    of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the
    witness at the confrontation, and (5) the length of time between the crime and the confrontation.
    Kurylczyk, 
    443 Mich at 306
     (opinion by GRIFFIN, J.). The question is “whether under the
    ‘totality of the circumstances’ the identification was reliable even though the confrontation
    procedure was suggestive.” Neil v Biggers, 
    409 US 188
    , 199; 
    93 S Ct 375
    ; 
    34 L Ed 2d 401
    (1972).
    For example, in Woolfolk, 304 Mich App at 457-458, this Court concluded that showing a
    single photo of the defendant to the witness did not create a substantial likelihood of
    misidentification where the witness had already identified the shooter by a nickname, the witness
    knew and had grown up with the shooter, and the photo was only used to help confirm the
    person’s identity. By contrast, in Gray, 
    457 Mich at 111
    , this Court concluded that the
    identification procedure was highly suggestive when the police showed a single photo of the
    defendant to the victim and told her that “this was the man the police had arrested for the
    assault.”
    In People v McAllilster, 
    241 Mich App 466
    , 472; 616 NW2d 203 (2000), remanded in
    part on other grounds 
    465 Mich 884
     (2001), this Court concluded that the showing of a single
    photo of the defendant was suggestive, but permissible. The police officer involved testified that
    he had not been able to locate a mug shot of the defendant and only had a photo of the defendant
    on a boat, and thus, this Court reasoned, any photographic lineup would also have been
    impermissibly suggestive because it would have singled out the defendant. 
    Id.
     This Court
    permitted the identification, but reasoned that there was an independent basis for the
    identification. 
    Id. at 472-473
    .
    Similarly, in People v McRaft, 
    102 Mich App 204
    , 211, 212 n 2; 301 NW2d 852 (1980),
    this Court permitted a photographic identification where the hospitalized victim was handed
    photographs one at a time by a police sergeant who asked “Is this the one?” Upon seeing the
    second photograph, the victim identified the person as the assailant. Although the issue before
    this Court in McRaft was whether the victim was healthy enough to make a valid identification,
    and not a challenge to the procedure used by police, this Court did not find the identification
    procedure to be impermissibly suggestive even though the victim had only been shown 2
    photographs. 
    Id.
    Thus, although the showing of a single photograph is virtually always suggestive, to
    determine whether the showing of the single photo in this case was so impermissibly suggestive
    that it violated defendant’s right to due process, we consider “whether under the ‘totality of the
    circumstances’ the identification was reliable even though the confrontation procedure was
    suggestive.” Neil, 
    409 US at 199
    . We consider first whether the victim in this case had a
    sufficient opportunity to view the assailant. Here, the victim saw the assailant twice: for three
    seconds approximately 15 minutes before the assault, and then again for six or seven seconds
    during the assault. During the robbery, the assailant was about two feet from the victim. The
    victim testified that he got a good look at the assailant’s face. It was dark at the time of the
    assault, but the victim testified that he was able to look at the assailant’s face, clothing, and gun.
    The victim consistently described the assailant as young, dark-skinned, approximately the same
    size as the victim, which was 5 feet 9 inches tall, and wearing a black hood. The victim first
    -4-
    described the assailant as being the victim’s own weight, about 145 pounds. The officer testified
    that the victim later said the assailant was 200 pounds. But even with this discrepancy, the
    victim indisputably had the opportunity to observe the assailant, if only for a short time.
    The second factor is the witness’s degree of attention. In this case, the witness testified
    that during the brief encounter, he was able to note the assailant’s size, age, skin-tone, clothing
    color, the color and kind of gun being used, and that the assailant held the gun in his right hand.
    With regard to the third factor, the accuracy of the prior description, there is no dispute that the
    victim’s description matched defendant. The description was general and could apply to many
    people, but was in fact accurate. Fourth, with regard to the level of certainty at the time of
    identification, the victim identified the person in the photograph as the assailant within a few
    seconds of seeing the photograph, which suggests some certainty. The victim also had an
    emotional response when first seeing the photograph, immediately getting tears in his eyes and
    stating that the photograph was that of the assailant. The victim never failed to identify
    defendant and never identified anyone other than defendant. Finally, with regard to the length of
    time between the crime and the confrontation, the identification occurred approximately a half
    hour to an hour after the crime.
    We also consider in this case that the officer showing the victim the picture asked “was
    this him” but did not state that the person pictured was the assailant or was under arrest. The
    photograph itself is simply a color photograph of a young man standing near a building, but in no
    way indicates that the person pictured is under arrest. Indeed, the defendant appears to be
    smiling in the photograph. Thus, although a single-photo show-up is always suggestive, a
    review of the totality of the circumstances in this case demonstrates that the identification
    procedure was not impermissibly suggestive. We therefore conclude that the photographic
    identification was not subject to suppression as a violation of due process.
    We note that a single-photograph identification may, in some cases, be comparable to
    other identification procedures, such as on-the-scene identification, that are not per se
    impermissibly suggestive. This Court has held that prompt, on-the-scene identifications are
    “reasonable, indeed indispensable, police practices because they permit the police to
    immediately decide whether there is a reasonable likelihood that the suspect is connected with
    the crime and subject to arrest, or merely an unfortunate victim of circumstance.” People v
    Libbett, 
    251 Mich App 353
    , 361; 650 NW2d 407 (2002), quoting Winters,5 225 Mich App at
    728. “Whatever the perceived problems of on-the-scene confrontations, it appears to us that
    prompt confrontations will, if anything, promote fairness by assuring greater reliability.” Id.
    For example, in Libbett, 251 Mich App at 361, the victim was carjacked by two
    individuals. The two assailants picked up two more individuals and drove around for
    approximately an hour before being spotted by police. After a car chase, the four occupants were
    apprehended, and the victim was taken to the scene to identify the suspects. This Court
    5
    Winters involved a challenge regarding the right to counsel during a line-up and not the issue of
    whether the identification procedure was so suggestive as to be impermissible under a due
    process analysis.
    -5-
    concluded that it was reasonable for the police to bring the victim to the scene to identify
    whether any of the four individuals were the perpetrators, and that the on-the-scene identification
    did not violate the defendant’s rights. Id.
    In Neil, 
    409 US at 195
    , the police conducted a single person show-up with the defendant
    after they were unable to find anyone in the city jail or city juvenile home fitting the defendant’s
    description. The Court determined that even though the procedure was suggestive, there was no
    substantial likelihood of misidentification where the victim had spent up to a half hour with the
    assailant, there was adequate lighting, the victim faced the assailant directly and intimately while
    being raped, the victim provided a thorough description of the assailant to the police, including
    “the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice,” and
    the victim had an unusual opportunity to observe and identify her assailant. 
    Id. at 199-201
    .
    Although there was a lapse of seven months between the crime and the confrontation, the victim
    never made a previous identification and her record for reliability was good. 
    Id. at 201
    .
    In Stovall v Denno, 
    388 US 293
    , 302; 
    87 S Ct 1967
    ; 
    18 L Ed 2d 1199
     (1967), overruled
    in part on other grounds in Griffith v Kentucky, 
    479 US 314
    ; 
    107 S Ct 708
    ; 
    93 L Ed 2d 649
    (1987), a single suspect was shown to the victim in person in her hospital room. The Supreme
    Court found no due process violation because the victim was the only person who could
    exonerate the defendant and no one was sure how long she would live. The Court concluded that
    “an immediate hospital confrontation was imperative.” 
    Id.
    In this case, the trial court rejected the argument that the showing of a single photograph
    can be analogized to showing a witness an actual person. We see no such distinction. True,
    photographs and actual people are not exactly the same thing; showing a witness an array of
    photographs and showing a witness an array of actual people in a line-up each has its own
    potential hazards to the identification process. But the harm that must be guarded against is the
    same, namely, the potential for mistaken identification that arises when law enforcement singles
    out a suspect, thereby suggesting to the witness that the person singled out is considered by law
    enforcement to be the perpetrator. Such “singling out” can occur either in person or by
    photograph.
    The showing of a single photo in this case was comparable to an on-the-scene
    identification. Here, within minutes of the crime occurring, defendant was located across the
    street from the scene of the robbery and shooting. Though the victim’s description was a general
    one, defendant matched that description. There is no dispute that under these circumstances the
    police could have permissibly attempted an on-the-scene identification if the victim had not been
    in need of immediate medical care. But under the circumstances it was not advisable for the
    police to keep the victim at the scene while they looked for suspects. Instead, upon determining
    that there was a suspect at the scene, police took the suspect’s photograph and immediately took
    -6-
    the photograph to the victim at the hospital. The alternative would be to keep an injured victim
    at the scene for identification of potential suspects despite the need for medical attention6.
    The prosecution also argues that the circuit court clearly erred by suppressing the
    victim’s subsequent in-court identification of defendant because the victim had an independent
    basis for that identification. We need not reach this issue in light of our resolution of the first
    issue.
    Reversed and remanded. We do not retain jurisdiction.
    /s/ Michael F. Gadola
    /s/ Deborah A. Servitto
    6
    And it would be ironic indeed if unharmed victims were permitted the opportunity for
    immediate identification of a suspect because on-the-scene identification is permitted, while
    victims injured by their assailants are penalized because there is no permissible method for the
    injured victim to see the suspect. If that were the case, an assailant would do well to incapacitate
    his or her victim because a hospitalized victim could not immediately identify their assailant,
    whereas an uninjured victim could participate in on-the-scene identification.
    -7-