                          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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

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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.”


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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.


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