                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 November 18, 2014
              Plaintiff-Appellee,

v                                                                No. 312409
                                                                 Wayne Circuit Court
JIMMY EARL MCCASKILL,                                            LC No. 11-008725-FC

              Defendant-Appellant.


                                        ON REMAND


Before: METER, P.J., and JANSEN and WILDER, JJ.

PER CURIAM.

         Defendant was convicted 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. These convictions arose from defendant’s alleged
participation in the July 13, 2011, robbery of a CVS Pharmacy located at Mack and Warren in
the city of Detroit. This Court previously reversed defendant’s convictions. See People v
McCaskill, unpublished opinion per curiam of the Court of Appeals, issued April 1, 2014
(Docket No. 312409). We concluded that the trial court erred by permitting a police officer to
testify that defendant was the person depicted in still photographs that CVS had created from a
surveillance video, which was shown at trial, because the officer was in no better position to
identify the person pictured than was the jury. We further concluded that this preserved error
was not harmless beyond a reasonable doubt.

        Our Supreme Court vacated this Court’s opinion and remanded for reconsideration of
whether any error in admitting the police officer’s identification testimony was harmless,
explaining that “[f]or nonconstitutional preserved error, a defendant has the burden of
establishing a miscarriage of justice under a ‘more probable than not’ standard.” People v
McCaskill, 496 Mich 862 (2104), quoting People v Lukity, 460 Mich 484; 596 NW2d 607
(1999). We again conclude that the error was not harmless because it is more probable than not
that the jury would have acquitted defendant without the challenged evidence.




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       In People v Hawthorne, 474 Mich 174, 181-182; 713 NW2d 724 (2006), our Court
elaborated on the analysis required by Lukity and People v Rodriguez, 463 Mich 466, 474; 620
NW2d 13 (2000), as follows:

                Under Lukity, the defendant has the burden to demonstrate that a
       preserved, nonconstitutional error resulted in a miscarriage of justice. MCL
       769.26 sets forth a presumption that such an error does not warrant reversal
       “unless ‘after an examination of the entire cause, it shall affirmatively appear’ that
       it is more probable than not that the error was outcome determinative.” “ ‘An
       error is deemed to have been “outcome determinative” if it undermined the
       reliability of the verdict.’ ” [Citations omitted.]

In Lukity, 460 Mich at 495, our Supreme Court explained:

               The object of this inquiry is to determine if it affirmatively appears that
       the error asserted “undermines the reliability of the verdict.” In other words, the
       effect of the error is evaluated by assessing it in the context of the untainted
       evidence to determine whether it is more probable than not that a different
       outcome would have resulted without the error. [Citation omitted.]

Thus, a verdict is deemed reliable unless it is more probable than not that the outcome would
have been different in the absence of the claimed error. “ ‘In making this determination, the
reviewing court should focus on the nature of the error in light of the weight and strength of the
untainted evidence.’ ” Rodriguez, 463 Mich at 474 (citation omitted).

        Defendant was positively identified as one of the two perpetrators of the robbery by a
CVS assistant manager, who also indicated that he picked defendant out of a photographic lineup
and a live lineup. When he was shown a photograph at trial of a person in his store, apparently
one of the still photographs created by CVS, the assistant manager said it was defendant.
Another CVS employee did not remember if he had identified anyone when shown photographs
by police officer Roland Brown, but he did not pick defendant or anyone else out of a
photographic lineup. He did subsequently pick defendant out of a live lineup. An employee
from another CVS Pharmacy, which was subsequently robbed by someone also suspected to be
defendant, testified that she was not shown a photographic lineup but picked defendant out of a
live lineup. Another employee at that store was unable to identify defendant in either a
photographic or live lineup, and yet another employee was unable to identify defendant in a
photographic lineup.

        Officer Brown made three assertions that the still photographs depicted defendant. The
first was an unqualified assertion that the pictures depicted defendant. The second was an
assertion that they did so “as stated by the other witnesses;” this statement was ambiguous. The
officer could have been merely reiterating the substance of the other witnesses’ testimony.
Alternatively, he could have been testifying that he had independently concluded that defendant
was depicted in the photographs and that his conclusion in this regard was consistent with the
other witnesses’ testimony. The third statement was made on cross-examination, after Officer
Brown acknowledged the poor resolution of the still photograph on the courtroom’s screen, when
he testified, “I’ve seen several photos and I am certain that is [defendant].”

                                                -2-
       The identifications of defendant by all the other witnesses were problematic. Employees
from the second CVS initially gave statements with fairly consistent physical descriptions of the
robber. They both described him as between 5’ 6” and 5’ 7” in height. One said he was 38 to 42
years old, about 200 pounds, and had a medium-to-light complexion. The other employee said
the robber was 40 to 45 years old, 170 pounds, and had a medium complexion. The assistant
manager at the first CVS, on the other hand, initially said that the individual was between 5’ 9”
and 5’ 11” in height, 160 pounds, 49 to 52 years old, and had a dark complexion with a black
mustache. The assistant manager indicated that the encounter lasted about 20 minutes, that he
was with defendant (as opposed to defendant’s accomplice) for about 10 minutes, and that he
spoke with defendant during this encounter. The assistant manager stated that he was shoulder to
shoulder with the man he identified as defendant, and not face to face. He initially said that the
person he identified as defendant had teeth. Later, he said that he was not paying attention to
whether the person had missing teeth. An employee from the second store testified that the
person she identified as defendant was one foot away from her. She did not notice anything
about his mouth.

         Defendant presented the testimony of Vance Gerald, a program coordinator for a facility
that housed people who had been released from prison, including defendant. Gerald testified, in
essence, that defendant had been at the facility for at least four years, was a model resident, and
was at the facility at the time of the robberies. Anthony Hightower, a staff member at the
facility, testified that defendant was working with him on the dates of the robberies. Both
testified that defendant had not had teeth for years.

        We note that the jurors saw the surveillance video and at least one still photograph. The
jurors were free to draw their own conclusions regarding whether the video and photograph
depicted defendant. We further note that the absence of teeth is a defining characteristic that
would typically grab one’s attention and be included in an initial description given to police. In
this case, the original descriptions were inconsistent with respect to the perpetrator’s complexion
and varied by as much as 11 years and 40 pounds. Defendant had an alibi, which was strongly
supported by the testimony of seemingly reputable witnesses. These witnesses also provided
valuable character testimony for defendant. Given all the witnesses’ failures to note that the
perpetrator had no teeth, the divergent descriptions of the perpetrator, the strong evidence that
defendant was somewhere else at the time of the robbery, and all but one witness’s inability to
identify defendant in a photographic lineup, we conclude that the jurors would have entertained a
reasonable doubt regarding the identity of the robber if they had not been presented with Officer
Brown’s unqualified assertions that the still photographs depicted defendant. We conclude that
the erroneous admission of Officer Brown’s assertions was not harmless because it is more
probable than not that the jury would have acquitted without this evidence. We therefore again
reverse and remand for a new trial.




                                                -3-
        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                        /s/ Patrick M. Meter
                                                        /s/ Kathleen Jansen
                                                        /s/ Kurtis T. Wilder




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