            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 26, 2019
              Plaintiff-Appellee,

v                                                                 No. 336843
                                                                  Wayne Circuit Court
RODRIGUES RODNEY TALBERT,                                         LC No. 16-003223-01-FC

              Defendant-Appellant.


Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Rodrigues Talbert, appeals as of right his bench trial conviction of felony
murder, MCL 750.316(b). For the reasons stated in this opinion, we affirm.

                                      I. BASIC FACTS

        On February 4, 2006, Corey Phillips drove to a house located on St. Mary’s Street in
Detroit, Michigan. While his girlfriend, Nicole Vaid, 1 waited in the car, he took a backpack or
duffle bag of marijuana into the house with the intention of selling it. Vaid testified that she
heard gunshots from the house and then she saw two men in their 20s come out of the front door.

       Vaid explained that before that night she had never seen either of the men. However, in
February and March 2006, she identified the second man who exited the house as Harold
Walton, first in a photographic lineup and then at Walton’s preliminary examination. 2


1
 Nicole Vaid was known as Nicole Hall at the time of the murder. For ease of reference and
consistency, we will refer to her as “Vaid.”
2
  Following a March 2006 preliminary examination, Walton was bound over to the circuit court
on charges of first-degree premeditated murder, felony murder, felon in possession of a firearm,
and possession of a firearm during the commission of a crime. However, a motion to quash the
bindover was granted. As will be explained later in this opinion, the records associated with



                                              -1-
Subsequently, in 2016, Vaid identified Talbert as one of the men who exited the house. She
identified Talbert first during an in-person lineup, then at Talbert’s preliminary examination, and
finally at Talbert’s trial.

        At Talbert’s trial, she testified that the men got into a vehicle and left. Vaid pulled her
vehicle into the driveway and entered the house. Inside, she discovered Phillips lying on the
floor in a pool of blood, but she did not see the bag of marijuana. According to the medical
examiner who reviewed the autopsy report, Phillips died from multiple gunshot wounds. He was
shot twice in the head, once in the abdomen, and once in the left forearm. The medical examiner
opined that, based on stippling, the weapon used was less than 36 inches from Phillips’s head
when it was fired. The bullet trajectory was also at a downward angle for the gunshot wounds to
Phillips’s head.

        The police collected evidence, including shell casings and swabs of blood located on the
front door and on a microwave in the kitchen. The blood on the microwave was bright red and
smeared. It was determined that the shell casings were all fired from the same gun.

        Initially, the owner of the blood on the door and the microwave was unidentified. Yet,
eventually law enforcement received a hit on CODIS, a DNA bank where DNA is stored to
allow for comparisons to convicted felons’ profile at a later date. In response, law enforcement
obtained a search warrant for Talbert’s DNA. While executing the search warrant, an officer
explained to Talbert that his blood had been located at the house where Phillips was murdered,
and the police showed Talbert a photograph of the house and the blood. In response, Talbert
stated that it was not his blood and that he had never been to the house before. He did not tell the
officer that he had been shot at that location. He did, however, cooperate and provide a buccal
swab to the police. Based on the buccal swab, a DNA profile for Talbert was developed.
Additional testing was performed on the blood located on the door and the microwave, and a
DNA expert opined that Talbert’s DNA matched the DNA in the blood on the door and the
microwave.

        In his arguments before the court at trial, Talbert acknowledged, through his trial lawyer,
that he had been in the house on the night of the shooting, but he had also been shot and was an
additional victim rather than the perpetrator. The record reflects that Talbert has two healed
gunshot wounds on his back and one in his arm. A medical examiner opined that the wounds
were at least five years old. Additionally, Talbert submitted a police report from the Toledo
Police Department, which stated that a man named “Kenneth Brown” went to the St. Vincent
Hospital in Toledo, Ohio to be treated for gunshot wounds on February 4, 2006. The police
report noted that Brown was a black male in his twenties who was driving home from Cleveland
with his cousin when he was shot at a BP gas station by a man who got into an argument with his
cousin. Brown was shot in the right arm and left side of his chest. When the police arrived at
the hospital to speak with him, Brown fled the hospital and could not be located. At trial,



Walton’s case were unknown to the prosecution at the time of Talbert’s trial, so they were not
turned over to Talbert with the discovery materials.


                                                -2-
Talbert’s lawyer asserted that Talbert was the “Brown” in the police report, and argued that
Talbert was another victim of violence inside the house rather than a perpetrator of violence.

       By stipulation, Talbert also presented evidence via written statements from several
individuals familiar with the St. Mary’s Street house. According to the witness statements, the
house was a “trick house” that was always open. One of the statements indicated that Walton,
who was known as “Nardo,” was talking about someone from out of town bringing some
marijuana over to the house. There was also testimony that other individuals associated with the
house would sell cocaine and marijuana. Another witness testified that someone named Brandon
Johnson stated that if he did not get his money this time “when they come, I’m just shooting.”

        Following the testimony and closing argument, the trial court found that Talbert was
guilty of felony murder.

                   II. SUPPRESSION OF IDENTIFICATION TESTIMONY

                                 A. STANDARD OF REVIEW

        Talbert first argues that the trial court erred by denying his motion to suppress Vaid’s
identification of him as one of the men who left the house immediately after the shooting.
Generally, this Court will not reverse a trial court’s decision to admit identification evidence
unless the decision was clearly erroneous. People v McDade, 301 Mich App 343, 356; 836
NW2d 266 (2013). “Clear error exists when the reviewing court is left with a definite and firm
conviction that a mistake was made.” Id. This Court reviews de novo issues of law relevant to a
motion to suppress. Id.

                                        B. ANALYSIS

         “A lineup can be so suggestive and conducive to irreparable misidentification that it
denies an accused due process of law.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d
700 (2002). To sustain a due process challenge, the defendant must demonstrate “that the
pretrial identification procedure was so suggestive in light of the totality of the circumstances
that it led to a substantial likelihood of misidentification.” People v Kurylczyk, 443 Mich 289,
302; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.), implied overruling on other grounds
recognized in People v Perry, 317 Mich App 589, 589; 895 NW2d 216 (2016). Physical
discrepancies among lineup participants do not automatically render a lineup procedure
defective. Hornsby, 251 Mich App at 466. Instead, physical discrepancies are only significant
when they (1) are noticeable to the witness and (2) “substantially distinguish the defendant from
the other lineup participants.” Id. Standing alone, evidence that the witness was informed that
the suspect was in the lineup does not render the lineup unduly suggestive. People v McElhaney,
215 Mich App 269, 287; 545 NW2d 18 (1996). In the event that the trial court determines that
an unduly suggestive pretrial identification procedure was used, the court should suppress any in-
court identification unless an independent basis for its admission exists. Id. at 286.

        Here, Talbert fails to point to any facts in support of his assertion that the lineup was
impermissibly suggestive, and we have not discerned any evidence from the record suggesting
that the lineup was impermissibly suggestive. Instead, the record reflects that Talbert was
represented by a lawyer during the in-person lineup and the lawyer had an opportunity to
                                               -3-
examine the participants before the lineup. The lawyer did not object to the individuals used in
the lineup or raise any other issue with the lineup procedures. There was also testimony that
Vaid was sequestered before the lineup, so she could not see any contact Talbert had with the
deputies before the lineup. Consequently, the record is devoid of any indication that Vaid’s
identification of Talbert at the in-person lineup was the result of impermissibly suggestive
procedures.

        On appeal, Talbert argues that Vaid’s in-court identification lacks an independent basis.
However, because there is no evidence of an unduly suggestive pretrial identification procedure,
the trial court was not obligated to determine whether there was an independent basis for
admitting identification testimony. See id. at 287. Consequently, the trial court did not err by
denying the motion to suppress Vaid’s identification testimony.3

                                   III. BRADY VIOLATION

                                 A. STANDARD OF REVIEW

        Finally, Talbert argues that the prosecution’s failure to disclose evidence that Vaid
previously testified in 2006 at Harold Walton’s preliminary examination violated his
constitutional right to discovery and entitles him to a new trial. In February and March 2006,
Walton was identified by Vaid as one of the men who left the house shortly after the shooting.
This Court reviews de novo constitutional due process claims, such as allegations of a Brady4
violation. People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).

                                        B. ANALYSIS

        Although an accused does not possess a general constitutional right to discovery, due
process demands “that the prosecution disclose evidence in its possession that is exculpatory and
material, regardless of whether defendant requests the evidence.” People v Jackson, 292 Mich
App 583, 590-591; 808 NW2d 541 (2011), citing Brady v Maryland, 373 US 83, 87; 83 S Ct
1194; 10 L Ed 2d 215 (1963). In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 US at 87. To demonstrate that a violation of a
defendant’s due process right to the disclosure of information has occurred, the defendant must
show: “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3)
that is material.” People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014).




3
  In a related argument, Talbert argues that, in the absence of Vaid’s identification testimony,
there is insufficient evidence to sustain his conviction of felony murder. Yet, because the
identification testimony was properly admitted, this claim lacks merit.
4
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                               -4-
        Relevant to this issue, at sentencing, Talbert filed a motion for mistrial based on the
prosecution’s failure to provide him with information regarding Walton, who was charged with
Phillips’s murder in 2006. Neither Walton nor Walton’s 2006 court file could be located at that
time. The trial court denied the motion. Thereafter, while his appeal was pending before this
Court, Talbert’s lawyer acquired a copy of the March 2006 preliminary-examination transcript
from Walton’s case.

         Vaid testified at the examination, identifying Walton as one of the men who ran from the
house after the shooting. However, she also testified that she could not see the men’s faces “in
great detail,” and she stated that “the first one who came out, I didn’t see.” She explained that
she did see the second man, who she identified as Walton. Yet, during Talbert’s trial, she
positively identified him as one of the men, stating that there “are just some things you never
forget. And when I saw [Talbert’s] face I remembered it.” She also stated that there was no
doubt in her mind that Talbert was one of the men who left the house after the shooting. There
were additional discrepancies between Vaid’s 2006 testimony and her 2016 testimony, including
details on whether one of the men was carrying a long object that looked like a gun, whether
Talbert was the man with a gun, whether Phillips took a bag of marijuana from the backseat, and
why she and Phillips were visiting the home in the first instance. For example, in 2006 she
testified she did not know why they were at the house and did not see Phillips take anything from
the backseat, whereas in 2016 she testified Phillips was there to sell marijuana and took a bag of
marijuana into the house with him.

       Based on the 2006 preliminary-examination testimony, Talbert sought a remand to
determine whether a Brady-violation occurred. This Court granted his motion, remanding with
orders for the trial court to hold “an evidentiary hearing and [render a] decision regarding the
existence and relevancy of an alleged violation under Brady . . . .” People v Talbert, unpublished
order of the Court of Appeals, entered October 9, 2017 (Docket No. 336843).

         On remand, Talbert filed a brief arguing that the preliminary-examination transcript was
inadvertently suppressed and it was favorable to the defense as it would have significantly
impeached Vaid’s trial testimony and was also substantive evidence that she did not see the first
man who exited the house. Talbert did not directly address the materiality of the evidence,
however. In response, the prosecution conceded that the preliminary-examination transcript had
been suppressed and that it was favorable to the defense. However, it argued that the suppressed
evidence lacked “materiality.” Specifically, the prosecution noted that although Vaid’s
identification testimony could be impeached, Talbert’s DNA was found at the scene. Further,
the prosecution noted that because of the DNA evidence linking him to the scene, Talbert’s
defense at trial was that he was “merely present” and was an additional shooting victim. In his
reply brief, Talbert argued that the trial court had placed “significant weight” on Vaid’s
testimony and that, if the certainty of her identification was impeached, there would have been a
reasonable doubt as to whether Talbert was guilty of felony murder. Following oral argument,
the trial court found that Talbert did not establish the third element of a Brady violation, i.e. that
the suppressed evidence was material.

       On appeal, the prosecution again concedes that the evidence was suppressed and that it
was favorable to the defense, but it argues that Talbert cannot establish that the evidence was
material. Materiality exists when there is a reasonable probability that, had the defense known

                                                 -5-
about the suppressed evidence, the result of the proceeding would have been different. Chenault,
495 Mich at 150. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. (quotation marks and citations omitted). The defendant is not obligated to
prove that disclosure of the suppressed evidence would have resulted in the defendant’s acquittal.
Id. The relevant inquiry is “whether, in the absence of the suppressed evidence, the defendant
‘received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ” Id. at
150-151, quoting Kyles v Whitley, 514 US 419, 434; 115 S Ct 1555; 131 L Ed 2d 490 (1995).
When assessing materiality, this Court should “consider the suppressed evidence collectively,
rather than piecemeal.” Chenault, 495 Mich at 151.

        Here, the trial court—which was also the factfinder—considered the suppressed evidence
and determined that even with the evidence the verdict was still worthy of confidence. In doing
so, the court noted that it did not, in fact, place “significant” weight on Vaid’s identification of
Talbert as one of the men who left the house. Instead, the court found that Vaid’s identification
testimony was only part of the evidence it relied on at trial. The court explained:

               The evidence before me in the waiver trial of Mr. Talbert was the
       identification by the girlfriend—or fiancée of the Deceased, Mr. Phillips. The
       statement of the Defendant to the police that he was never at the home on St.
       Mary’s and his arrival at St. Vincent Hospital in Toledo where he claimed to the
       hospital personnel that he’d been shot on an expressway—or at a BP gas station,
       which he could not identify to the medical personnel treating him except that it
       was a BP gas station he knew not where. These things make me rule again that
       my verdict was worthy of confidence.

               His false exculpatory statements coupled with the identification, coupled
       with his fresh blood, it’s practically time stamped at the time of the murder which
       is—in my experience on the Bench very unusual. Then the argument in court to
       me—the closing argument by the Defense was that he was merely present. [The
       prosecution] argued that he was fully a participant in the robbery/murder of Corey
       Phillips and with that I totally agreed.

              Therefore the motion to re-open the testimony or evidence is denied. The
       motion for a new trial is denied.

        We see no error in the court’s analysis. As the court pointed out, Vaid’s identification
testimony was only part of the evidence presented. DNA evidence placed Talbert at the scene.
The evidence was located on the door and on the microwave. The blood on the microwave was
bright red and smeared. Additionally, it is undisputed that Talbert made a false exculpatory
statement to law enforcement when he unequivocally stated that it was not his blood and that he
had never been to the house on St. Mary’s street. Further, unlike the identification testimony,
other parts of Vaid’s testimony remained consistent or she voluntarily explained the reasons for
the inconsistencies before the prosecution and the defense were aware of the inconsistencies.
For example, she consistently testified that she went to the house with Phillips, who went into the
backseat before entering the house. She consistently stated that she heard gunshots and saw two,
young black men leave the house. A difference between the 2006 testimony and the 2016
testimony was that, in 2016, she admitted that Phillips was at the house to sell marijuana, that he

                                                -6-
took a bag of marijuana from the backseat, and that the bag was missing after Phillips was
murdered. She explained in 2016 that in 2006 she was embarrassed that Phillips was selling
drugs and did not want to say so. Additionally, at Walton’s preliminary examination, she was
impeached with statements she made to the police indicating that Phillips was there to sell
marijuana and that he took it into the house in a bag. Therefore, although her identification
testimony could be significantly impeached at Talbert’s trial, there is no significant and
unaddressed challenge to the remainder of her testimony.5

         Furthermore, at trial, Talbert’s defense was that he was merely present at the house on St.
Mary’s at the time of the shooting. He presented evidence supporting his defense that he was an
additional shooting victim and had to seek treatment at a hospital in Ohio for gunshots wounds
sustained in the house. Talbert did not have to use that defense at trial. The record before the
trial court would have supported an argument by Talbert that Vaid’s identification was not
worthy of belief and that, without it, there was nothing to link him to the crime scene at the time
of the murder. For example, there were significant deficiencies in Vaid’s ability to make an
identification that could have been highlighted in support of an argument that Talbert was not, in
fact, at the scene at the time of the shooting. It was dark. She had not previously seen the men
who exited the house. She was watching them at an angle and from a distance. The lighting was
questionable and she admitted to only seeing them for a brief period of time. She had difficulty
identifying any specific features on the men, such as whether they had facial hair. Furthermore,
before the in-person lineup she was provided with information including Talbert’s name, which
provided Vaid with an opportunity to independently search for his likeness before participating
in the lineup.6 Additionally, at trial, she testified that she believed Walton’s charges were
dismissed for insufficient evidence, so Talbert’s lawyer could have, at that time, cross-examined
her on whether she testified against Walton and whether she blamed herself for that failure and




5
  We do not find it relevant to a Brady analysis whether Talbert would have sought a jury trial
and to have Vaid testify in person had he known about Vaid’s prior testimony. When reviewing
a Brady violation, we are examining whether the verdict actually rendered was worthy of
confidence, not whether Talbert would have made an entirely different strategy on who to
present his case to. See generally Chenault, 495 Mich at 150-151.
6
  On remand, the defense presented evidence that if someone used Google to search for Talbert’s
name, a link to Talbert’s MySpace page could easily be located. The defense also asserted that
the photograph of Talbert on his MySpace page was similar to his present appearance. The
defense suggested that, as a result, Vaid could have found Talbert’s photograph online
notwithstanding her testimony that she did not search the Offender Tracking Information System
(OTIS) or other internet sources for pictures of Talbert before participating in the in-person
lineup. Thus, although the MySpace page is certainly additional evidence supporting the
defendant’s theory, it relates to an issue that was brought up and addressed at trial. Further, there
is nothing on the record suggesting that the defense could not have presented the MySpace
photograph at trial. Therefore, we decline to consider this when addressing the materiality of the
suppressed evidence.


                                                -7-
was determined to have stronger identification testimony at Talbert’s trial.7 Given the already
weak identification testimony, additional testimony impeaching Vaid’s identification of Talbert
was not likely to significantly impact either the defense theory of the case or her credibility with
the court. In fact, the strongest part of Vaid’s identification was that there was independent
evidence—i.e. the DNA at the scene—to corroborate her identification. The link between her
identification and the DNA evidence remains as strong, even in light of the fact that her
testimony was subject to additional impeachment based on her 2006 testimony in Walton’s case.

        Moreover, on remand before the trial court and in his supplemental brief on appeal,
Talbert does not argue that he would have presented a different defense theory at trial had he
been aware of the suppressed evidence. Instead, the affidavits submitted by Talbert and his trial
lawyer only state that if they had been aware of the suppressed evidence Talbert would not have
waived his right to a jury trial and would not have agreed to allow Vaid to testify via a video
conference. In other words, although Talbert now claims he would have sought a different
factfinder, he does not also assert that he would have argued before that factfinder that he was
not present at the home at the time of the shooting and that his blood was at the house from an
altercation unconnected with the murder of Phillips.

       In sum, although Vaid’s identification testimony could have been further impeached by
the 2006 preliminary-examination transcript, there is not a reasonable probability that, had the
defense known about the suppressed evidence, that the result of the proceedings would have
been different. Chenault, 495 Mich at 150. Because Talbert cannot establish that the evidence
was material, we conclude that a Brady violation did not occur.

       Affirmed.

                                                             /s/ Douglas B. Shapiro
                                                             /s/ Jane M. Beckering
                                                             /s/ Michael J. Kelly




7
  On appeal, the defense suggests that Walton’s charges were dismissed because of Vaid’s weak
identification testimony. However, although the defense provided a copy of the motion to quash
the bindover in Walton’s case and a copy of the order dismissing the case, the reasons the court
quashed the bindover are unclear. We decline to speculate on appeal that the reason the bindover
was quashed was because of Vaid’s identification testimony, especially given that Walton’s
argument was that the bindover was improper because the prosecution failed to establish the
elements of the crime. Although Walton suggested that Vaid’s identification testimony was
“shaky,” he acknowledged that her identification would have to be viewed in the light most
favorable to the prosecution. In other words, there is no evidence on the record currently before
this Court that Walton’s bindover was quashed because of Vaid’s “weak” identification of
Walton. Additionally, there is no evidence that Vaid herself felt that her identification testimony
was insufficient in Walton’s trial. Accordingly, we do not find this aspect of Talbert’s argument
persuasive.


                                                -8-
