Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 1, 2017                                                                   Stephen J. Markman,
                                                                                                Chief Justice

  155245 & (93)                                                                            Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                          Joan L. Larsen
            Plaintiff-Appellee,                                                          Kurtis T. Wilder,
                                                                                                     Justices
  v                                                       SC: 155245
                                                          COA: 326311
                                                          Wayne CC: 14-009512-FC
  ELISAH KYLE THOMAS,
             Defendant-Appellant.
  _________________________________________/

          On October 25, 2017, the Court heard oral argument on the application for leave to
  appeal the December 8, 2016 judgment of the Court of Appeals. On order of the Court,
  the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1),
  in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals.

          Due process concerns arise when law enforcement officers use an identification
  procedure that is both suggestive and unnecessary. Perry v New Hampshire, 565 US 228,
  238-239 (2012). But a defendant’s right to due process of law is not violated unless the
  photographic identification procedure is so impermissibly suggestive that it gives rise to a
  substantial likelihood of misidentification. People v Gray, 457 Mich 107, 111 (1998);
  Simmons v United States, 390 US 377, 384 (1968). A police officer showing a victim
  just a single photograph “is one of the most suggestive photographic identification
  procedures that can be used.” Gray, 457 Mich at 111 (quotation marks and citation
  omitted). In this case, the police officer’s presentation of a single photograph to the
  victim accompanied by the question “was this the guy who shot you?” was highly
  suggestive. Moreover, insufficient record evidence exists to conclude that the trial court
  erred when, in determining whether the suggestive procedure was necessary under the
  circumstances, it found this case distinguishable from the mortal exigency present in
  Stovall v Denno, 388 US 293, 301-302 (1967). 1 Specifically, the trial court did not find
  that exigency required an expedited identification procedure or that a less suggestive
  identification procedure would have been too burdensome to conduct; and our review of
  the record reveals insufficient evidence from which to draw such conclusions.


  1
    Stovall was abrogated on other grounds by Griffith v Kentucky, 479 US 314, 326 (1987)
  (discussing retroactivity).
                                                                                                               2




         The United States Supreme Court has held that reliability is the ultimate
touchstone for admissibility of an identification. See Manson v Brathwaite, 432 US 98,
114 (1977). Accordingly, even an unnecessarily suggestive identification may be
admitted if it is sufficiently reliable. Perry, 565 US at 238-239. The trial court
determined that the identification was unreliable under the totality of circumstances. See
People v Kurylczyk, 443 Mich 289, 306 (1993) (opinion by GRIFFIN, J.); Neil v Biggers,
409 US 188, 199 (1972). The parties do not dispute the facts relating to the
identification: the victim viewed the assailant’s partially obscured face for no more than
seven seconds on a dark city street with no streetlights while a gun was pointed at him.
The description the victim gave to police officers was generic and could have described
many young men in the area; moreover the victim’s description of the assailant changed
between his first interview and his follow-up interview at the hospital. Accordingly, the
trial court determined that the single photograph identification was sufficiently unreliable
that it should be suppressed.

        We agree with the trial court’s assessment of reliability based on the relevant
totality of the circumstances. Similarly, the trial court did not err in determining that the
victim’s in-court identification lacked an independent basis sufficient to “purge the taint
caused by the illegal” identification procedure used here. People v Kachar, 400 Mich 78,
97 (1977); Gray, 457 Mich at 114-117. We REINSTATE the Wayne Circuit Court’s
February 6, 2015 judgment dismissing charges. The motion to remand is DENIED.

       We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         November 1, 2017
       d1030
                                                                             Clerk
