                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 14, 2016
               Plaintiff-Appellee,

v                                                                    No. 323181
                                                                     Wayne Circuit Court
DONTEAU DWONE DENNIS,                                                LC No. 13-009967-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of carjacking, MCL 750.529a,
two counts of armed robbery, MCL 750.529, possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b, and felon in possession of a firearm (felon-in-
possession), MCL 750.224f. Defendant was sentenced, as a fourth habitual offender, MCL
769.12, to 11 years and 3 months to 20 years for the carjacking and armed robbery convictions,
one to five years for the felon-in-possession conviction, and two years for the felony-firearm
conviction. We affirm.

        This case arises out of a carjacking that occurred outside a beauty supply store in Detroit.
A man walked up to the driver’s side of the first victim’s truck, pointed a shotgun through the
open window at the driver, and ordered her and her passenger (the second victim) out of the
vehicle. The second victim’s baby grandson was in the back seat, and her two children were
inside the store. The first victim managed to rescue the baby before the carjackers drove away in
the truck.

        The police subsequently recovered the carjacked truck and arrested defendant, who was
driving it. The police then sent a subpoena to the victims, who both picked defendant out of a
photographic array. Defendant’s counsel was not present for either array. The victims later
identified defendant in court.

        Defendant did not contest any elements of the charged offenses besides identity. The
trial court suppressed the first victim’s pretrial identification because she saw photographs of
defendant before picking his image out of a photographic array. However, the court found that
the in-court identifications, along with the second victim’s pretrial identification, were sufficient


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to prove beyond a reasonable doubt that defendant was the carjacker. It therefore convicted him
of all charged offenses.

        Defendant argues that the trial court should have suppressed the first victim’s in-court
identification because there was no adequate independent basis for it, that it was improper to
conduct a photographic array while defendant was in custody, that the second victim’s pretrial
identification should have been suppressed as unduly suggestive, and that all identifications
should have been suppressed due to poor witness credibility. We disagree. Defendant also
argues that his Sixth Amendment right to counsel was violated when his attorney was not present
for the photographic arrays. We agree.

        Defendant first argues that the trial court should have suppressed the first witness’s in-
court identification for the same reasons it suppressed her pretrial identification: she knew
defendant was arrested with her car, she used the internet to find pictures of him before picking
him out of the photographic array, and she recognized him as he was waiting for his case to be
called in court. Defendant argues that for these reasons the first victim’s in-court identification
of defendant is unreliable, and the trial court should not have admitted it into evidence.

         An in-court identification may be admitted even after an improper photographic array if
the prosecutor shows by clear and convincing evidence that there is an independent basis for the
latter identification. People v Kachar, 400 Mich 78, 95; 252 NW2d 807 (1977). The inquiry
focuses on the totality of the circumstances. People v Gray, 457 Mich 107, 115; 577 NW2d 92
(1998). The Kachar Court laid out a series of criteria for determining whether there is an
adequate independent basis:

       1. Prior relationship with or knowledge of the defendant.

       2. The opportunity to observe the offense. This includes such factors as length of
       time of the observation, lighting, noise or other factor affecting sensory
       perception and proximity to the alleged criminal act.

       3. Length of time between the offense and the disputed identification. . . .

       4. Accuracy or discrepancies in the pre-lineup or show-up description and
       defendant’s actual description.

       5. Any previous proper identification or failure to identify the defendant.

       6. Any identification prior to lineup or showup of another person as defendant.

       7. [T]he nature of the alleged offense and the physical and psychological state of
       the victim. . . . Factors such as fatigue, nervous exhaustion, alcohol and drugs,
       and age and intelligence of the witness are obviously relevant.

       8. Any idiosyncratic or special features of defendant. [Kachar, 400 Mich at 95-96
       (internal quotations, citations and emphasis omitted).]



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         Most factors support the trial court’s conclusion that there was an adequate independent
basis for the first witness’s in-court identification of defendant. Under the second factor, the
court found that the first witness “had an ability to see [the carjacker],” that it was daylight, that
she was face-to-face with the carjacker and got a very good look, and that despite her concern for
the baby and the children inside the store her testimony was “credible.” Regarding the fourth
factor, the first witness’s initial report of the carjacker’s age, skin tone, and sex is consistent with
defendant. While she described the carjacker as 3 to 4 inches shorter and 15 pounds lighter than
defendant, these are relatively minor discrepancies in a description that generally matched
defendant well.

        Regarding the sixth factor, the first witness never identified anyone else as the carjacker.
Under the seventh factor, while the first witness was under stress at the time she saw the
carjacker, the court nevertheless found her testimony credible. There was no evidence that she
was under the influence of drugs or alcohol, or that she was tired, or that her age or intelligence
affected her ability to accurately identify the carjacker. The eighth factor supports the first
witness’s testimony because she recognized letters tattooed on defendant’s arms.

        A reviewing court may reverse a trial judge’s decision to admit evidence only when it has
a “definite and firm conviction that a mistake has been made.” People v McDade, 301 Mich App
343, 356; 836 NW2d 266 (2013); People v Barclay, 208 Mich App 670, 675; 528 NW2d 842
(1995). Considering this, along with the totality of the circumstances and the specific factors
enunciated by the Michigan Supreme Court in Kachar, the trial court’s conclusion that there was
clear and convincing evidence that the first victim had an independent basis to identify defendant
in court was not clearly erroneous. See Kachar, 400 Mich at 95-96. This is especially true given
the fact that the judge found the first victim had an excellent opportunity to see defendant’s face
and that she also recognized his arm tattoos.

       Second, defendant contends that it was improper to conduct a photographic array because
defendant was in custody at the time, which means only a corporeal lineup was permissible.
Generally, it is true that photographic arrays are not permissible when a defendant is in custody.
People v Kurylczyk, 443 Mich 289, 298; 505 NW2d 528 (1993). However, there is an exception
when “[t]he subject refuses to participate in a lineup and by his actions would seek to destroy the
value of the identification.” People v Anderson, 389 Mich 155, 186 n 23; 205 NW2d 461
(1973), overruled in part on other grounds People v Hickman, 470 Mich 602; 684 NW2d 267
(2004). There is undisputed testimony that defendant refused to participate in a corporeal lineup.
Thus, using a photographic array in this case was acceptable.

        Third, defendant argues that the photographs chosen for the second victim’s photographic
array were not adequately consistent with the descriptions of the carjacker that both victims gave
police, rendering the array unduly suggestive. However, even if defendant is correct in stating
that the age and skin tone of the other pictured people are different from defendant’s, such
variations are not adequate to support his argument. “[P]hysical differences between a suspect
and other lineup participants do not, in and of themselves, constitute impermissible
suggestiveness . . . .” McDade, 301 Mich App at 357 (internal quotation marks omitted).
Rather, “[p]hysical differences generally relate only to the weight of an identification and not to
its admissibility.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002) (citation
omitted). Thus, the photographic array was not unduly suggestive.

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        Fourth, defendant argues that the second victim’s testimony regarding the identity of the
carjacker was not credible because she stated that her attention remained on the carjacker while
the second carjacker approached, even while the first victim was removing the baby from the
back seat. The trial court’s decision to admit this evidence is reviewed for clear error, and there
is no basis to find that crediting the witness’s testimony on these points was clearly erroneous.
See Barclay, 208 Mich App at 675. Also, the credibility of witnesses is evaluated by the trier of
fact, and is relevant to the weight the evidence is given, not its admissibility. People v Eisen,
296 Mich App 326, 331; 820 NW2d 229 (2012).

        Finally, defendant argues that he was denied his Sixth Amendment right to counsel at the
photographic array because he was in custody at the time of the array and his right to counsel had
attached. Because he preserved this issue by arguing it in a motion to suppress evidence
properly submitted to the trial court, the issue is preserved. Preserved issues related to admission
of evidence are reviewed for clear error, meaning reversal is appropriate only where “the
reviewing court is left with a definite and firm conviction that a mistake has been made.”
McDade, 301 Mich App at 356; Barclay, 208 Mich App at 675. Should the reviewing court find
that there was a preserved constitutional error, it must decide if the error was structural, which
requires reversal, or nonstructural, which requires this Court to “determine whether the
beneficiary of the error has established that it is harmless beyond a reasonable doubt.” People v
Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).

        Defendant cites Anderson and Kachar for the proposition that when a defendant is in
custody at the time of a photographic array, he has the right to counsel. However, Hickman, in a
case involving a corporeal lineup, modified this rule, holding that the right to an attorney
attaches at “the initiation of adversarial criminal proceedings,” and suggested adversarial
proceedings begin with a “formal charge, preliminary hearing, indictment, information, or
arraignment.” Hickman, 470 Mich at 602, 606 (quotation marks and citation omitted). In
reaching this conclusion, the Court found that there is no reason not to follow the United States
Supreme Court’s interpretation of the right to counsel under the Sixth Amendment. Hickman,
470 Mich at 608-609. Because defendant had not yet been charged in this case, the right to
counsel had not yet attached. Moreover, given the Hickman Court’s decision to follow federal
law on this issue, we presumably should also follow the decision in United States v Ash, 413 US
300, 312; 93 S Ct 2568; 37 L Ed 2d 619 (1973), that the Sixth Amendment does not guarantee a
right to counsel at photo arrays.

       Affirmed.



                                                             /s/ David H. Sawyer
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Karen M. Fort Hood




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