PEOPLE v SAMMONS
No. 156189
Michigan Supreme Court
March 16, 2020
Argued on application for leave to appeal October 2, 2019. Chief Justice: Bridget M. McCormack. Chief Justice Pro Tem: David F. Viviano. Justices: Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
PEOPLE v SAMMONS
Docket No. 156189. Argued on application for leave to appeal October 2, 2019. Decided March 16, 2020.
Travis T. Sammons was convicted after a jury trial in the Saginaw Circuit Court of conspiracy to commit murder,
In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices VIVIANO, BERNSTEIN, and CLEMENT, in lieu of granting leave to appeal, the Supreme Court held:
The showup identification procedure employed in this case was suggestive because it indicated to the witness that the police suspected defendant. The suggestiveness was unnecessary because there was no reason, except perhаps police convenience, to use a suggestive procedure, and the showup was not reliable under Neil v Biggers, 409 US 188 (1972). This error was not harmless because the prosecution‘s case was significantly less persuasive without the showup. Accordingly, the Court of Appeals judgment was reversed.
- Due process protects criminal defendants against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Exclusion of evidence of an identification is required when the identification procedure was suggestive, the suggestive nature of the procedure was unnecessary, and the identification was unreliable. The inherently suggestive nature of showups has long been beyond debate, particularly when the showup is conducted in a police stationhouse, and the use of showups continues to receive critical treatment from courts and commentators.
- The showup procedure in this case was suggestive because defendant was shown singly to the witness. Although the prosecution argues that Rivard did not suggest that either of the men was involved in a criminal investigation, Jones could plainly see that defendant and Ramsey were involved in a criminal investigation, given that they were the subjects of a showup. Further, Jones testified that he understood he was taken to see defendant for the purpose of making an identification. Also, neither the procedural safeguards recommended by the Prosecuting Attorneys Association of Michigan nor those recommended by the United States Department of Justice for conducting showups were used.
- The showup in this case was not necessary. Defendant and Ramsey were arrested minutes after the shooting, and Jones did not arrive at the police station until 4 to 5 hours later. Further, there was nothing in the record to indicate that the police could not have taken more time if necessary to set up a corporeal or photographic lineup since defendant and Ramsey were in custody. The crime had been long over by the time the showup was conducted, and there was no ongoing danger that police were better able to address by dispensing with a reliable identification procedure.
- The evidence produced by an unnecessarily suggestive identification procedure is not automatically excluded unless the improper police conduct created a substantial likelihood of misidentification. To determine whether an unnecessarily suggestive identification is nevertheless reliable, a court considers the nonexclusive list of factors set out in Biggers: (1) the opportunity of the witness to 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 at the confrontation, and (5) the time between the crime and the confrontation. In this case, Jones‘s opportunity to view the criminal at the time of the crime was poor. Although Jones‘s attention was drawn to the shooting, he testified that he was not paying attention to the physical features of the person he was asked to identify. While the description Jones gave before viewing defendant and Ramsey matched them in a general sense, the most specific corroborating details he gave did not match: neither man was heavy, neither man was bald, and neither man had a long beard. Further, the partial license plate number that Jones remembered did not match that of the Jeep defendant and Ramsey were driving. Jones‘s level of certainty at the confrontation was difficult to evaluate because not only was it not documented, Jones denied even having made an identification. While the relatively short time between the crime and confrontаtion did provide some indicia of reliability, considering all the Biggers factors and other evidence relied on by the trial court, the prosecution did not meet its burden to show that the indicia of reliability were strong enough to outweigh the corrupting effect of the suggestive circumstances.
- The error of admitting the evidence from the unnecessarily suggestive and unreliable showup was not harmless beyond a reasonable doubt. When evaluating whether erroneously admitted testimony was harmless beyond a reasonable doubt, a court must determine the probable effect of that testimony on the minds of an average jury. Reversal is required if the average jury would have found the prosecution‘s case significantly less persuasive without the erroneously admitted testimony. In this case, without the showup, the prosecution‘s only evidence was a compilation of security camera videos and Watkins‘s identification of the Jeep, both of which were far from conclusive. Accordingly, the prosecution‘s case was significantly less persuasive without the showup identification evidence.
Court of Appeals judgment reversed; showup evidence suppressed; case remanded to the Saginaw Circuit Court for a new trial.
Justice ZAHRA, joined by Justice MARKMAN, dissenting, agreed that the identification procedure employed at the police station was suggestive and unnecessary but did not believe that the procedure was so unduly suggestive as to lead to a substantial likelihood of misidentification, noting that defendant and Ramsey appeared before Jones in separate interview rooms and in street clothes, unrestrained and unaccompanied by any law enforcement officers, with nothing to suggest to Jones or any objective observer that Ramsey and defendant were suspects in any crime. An application of the Biggers factors indicated that Jones had an ample opportunity to view the defendant given that Jones had an unobstructed view of the shooting, which occurred about 20 to 25 feet away on a clear, sunny afternoon; Jones paid detailed attention to the incident and remained calm throughout it; Jones accurately described defendant‘s general physical characteristics and clothing; and Jones‘s identification of defendant occurred while the incident was fresh in Jones‘s mind. Viewed under the totality of the circumstances and weighed against the corrupting effect of the suggestiveness of this procedure, and considering the more recent caselaw applying the Biggers factors, Jones‘s identification of defendant retained strong indicia of reliability, and therefore the trial court did not clearly err by admitting the evidence that Jones had identified defendant as the shooter. Justice ZAHRA would have affirmed the trial court and the Court of Appeals.
©2020 State of Michigan
PEOPLE OF THE STATE OF MICHIGAN v TRAVIS TRAVON SAMMONS
No. 156189
Michigan Supreme Court
FILED March 16, 2020
OPINION
BEFORE THE ENTIRE BENCH
Defendant, Travis T. Sammons, was convicted by a jury of conspiracy to commit open murder following a trial in which the jury was told that a witness identified defendant as the shooter during a “showup”1 identification conducted by the police following the shooting. Defendant has appealed, arguing that the showup identification violated his constitutional right to due process, that the evidence of the showup should have been suppressed, and that he is entitled to a new trial. We agree. The questions necessary to resolve this appeal include: whether the identification procedure conducted by police was suggestive, whether any suggestiveness was necessary, whether the witness‘s identification was nonetheless reliable, and whether any error was harmless. We hold that the showup identification procedure was suggestive because it indicated to the witness that police suspected defendant; the suggestiveness was unnecessary because there was no reason, except perhaps police convenience, to use a suggestive procedure; and the showup was not reliable under Neil v Biggers, 409 US 188, 201; 93 S Ct 375; 34 L Ed 2d 401 (1972). Finally, the error was not harmless because the prosecution‘s case was significantly less persuasive without the showup. Accordingly, we reverse the Court of Appeals judgment, suppress any evidence from the showup, and remand to the Saginaw Circuit Court for a new trial. In light of this resolution, we decline to address defendant‘s remaining issues.
I. FACTS AND PROCEDURAL HISTORY
Humberto Casas was shot on the street in Saginaw on June 21, 2015, at approximately 1:00 p.m. Sixteen-year-old DyJuan Jones witnessed the shooting, as did Rosei Watkins. Jones was riding in the backseat of a car being driven by his mother when he heard the shots, and Watkins was driving with her grandson in her own car. Jones saw a light gray Jeep, its driver, and another man who was wielding a gun.
About 10 to 20 minutes later, the police pulled over defendant Travis Sammons and Dominque Ramsey in a silver Jeep Commander that had the license plate number DFQ 9593. Both men wore white shirts. Ramsey weighed about 150 pounds at the time, and had facial hair that one police officer characterized as “short stubble.” Although defendant had a short hairstyle, he was not bald. The officеr ordered Ramsey out of the Jeep, searched him, handcuffed him, and put him into the back of the patrol car. The officer then ordered defendant out of the Jeep and searched him. During the search, the officer noticed that defendant‘s hands were sweaty, which the officer found “pretty odd.” With Ramsey‘s permission, the officer searched the Jeep. Nothing of interest was found in the searches of the men or the Jeep. Both men were taken to the Saginaw Police Department, where they were detained. A photo of the Jeep was taken and shown to Watkins, who identified it as the Jeep from the shooting.
Jones and his mother went to the police station early that evening. Michigan State Police Detective Sergeant David Rivard met them and organized a showup identification of defendant and Ramsey. At the preliminary examination, Detective Sergeant Rivard explained, “it‘s common that what we can do is call a show up, is to show the possible suspects to—excuse me—show the possible witnesses’ [sic] the possible suspects to see if in fact we are doing our investigation in the right direction.” He further explained that the showup was conducted because suspects had been identified relatively quickly.
The station has three interview rooms, and the detective sergeant put defendant in one interview room and Ramsey in another. The men were alone in their respective rooms, wore their street clothes, and were unrestrained. The detective sergeant took Jones to the rooms for the purpose of making an identification. The detective sergeant testified there was nothing out of the ordinary about conducting a showup this way. Jones and the detective sergeant would later disagree about what happened next.
Jones would say that he could identify neither man as having been involved in the shooting, while the detective sergeant would say that Jones identified defendant as the shooter but did not identify Ramsey. No one witnessed the conversation between Jones and the detective sergeant, and the conversation was not recorded in any way. Jones did not sign any kind of statement or report indicating that he had made an identification.
Later, the police collected videos from nine security cameras near the crime scene, each showing a Jeep Commander. The police then edited the security videos together with the dashboard camera view of the traffic stop into one video compilation. One clip showed a Jeep Commander
[T]he identification occurred within hours of the homicide, while the details of the crime were still fresh in the witness’ mind. Rivard explained that the show-up procedure was used as an investigative toоl to determine if their investigation was headed in the right direction. Although Defendants were singled out because they were presented alone, there is no evidence that Jones was pressured to identify either man nor was he told that the police had arrested the suspects. The fact that Jones identified Sammons as the gunman, but did not identify Ramsey, indicates that he was relying on his memory of the crime and was not influenced by the suggestiveness of the procedure. Based on the totality of the circumstances, the Court finds that the out-of court identification was reliable and did not violate due process.
The circuit court thus denied the motion to suppress.
At trial, the prosecution offered the video compilation, as well as the testimony of Jones and Watkins. Jones acknowledged that he had taken part in the showup procedure, but he once again denied having made any identification. Detective Sergeant Rivard testified that Jones had identified defendant at the showup. Watkins testified that she saw the offenders flee in a “[g]ray, silver Jeep, whatever you call those things.” She specifically denied being able to estimate the age of the vehicle she saw: “I don‘t know the difference, new, old. I know it looked like a Jeep.” She also identified a photo of the Jeep that Ramsey and defendant were stopped in as the Jeep from the scene. However, she did not identify any distinguishing features other than the color and make. She said only, “It was a box.” A jury found both men guilty of the conspiracy count and acquitted them on the remaining counts.
Both men filed motions for a directed verdict or a new trial. The circuit court denied defendant‘s motion but granted Ramsey‘s, ruling that there was insufficient evidence to sustain his conviction. The Court of Appeals affirmed defendant‘s conviction, and he sought leave to appeal here. We ordered oral argument on the application, directing the parties to file supplemental briefs addressing whether the showup was impermissibly suggestive; if so, whether the identification was nonetheless reliable; and whether, if improperly admitted, any error was harmless. People v Sammons, 503 Mich 910, 910 (2018).
We review a trial court‘s findings of fact in a suppression hearing for clear error. People v Hammerlund, 504 Mich 198 (2019). The application of law to those facts is a constitutional matter that this Court reviews de novo. People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015).
III. ANALYSIS
Due process protects criminal defendants against “the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.” Moore v Illinois, 434 US 220, 227; 98 S Ct 458; 54 L Ed 2d 424 (1977). Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable. Perry v New Hampshire, 565 US 228, 238-239; 132 S Ct 716; 18 L Ed 2d 694 (2012). See also People v Kurylczyk, 443 Mich 289, 302-303; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part).2
A. SUGGESTIVENESS
The inherently suggestive nature of showups has long been beyond debate. Showups have been called “the most grossly suggestive identification procedure now or ever used by the police.” Wall, Eye-Witness Identification in Criminal Cases (New York: Charles C Thomas, 1965), p 28. More than 50 years ago, the United States Supreme Court observed that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v Denno, 388 US 293, 302; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), abrogated in part on other grounds by Griffith v Kentucky, 479 US 314 (1987). Almost 80 years ago, Professor John Henry Wigmore opined that an identification produced by a showup is “next to worthless” and that “there is no excuse for jeopardizing the fate of innocent men by such clumsy, antiquated methods . . . .” 4 Wigmore, Evidence (3d ed), § 1130, p 214 n 2.
The procedure continues to receive critical treatment.3 The nature of the suggestion
Additionally, if a witness makes an incorrect identification from among several choices in a lineup, errors will often be spread to “fillers,”5 creating a harmless “known error.” Wells, Police Lineups: Data, Theory, and Policy, 7 Psychol Pub Pol‘y & L 791, 794 (2001). But in a showup, any mistaken identification will fall on the suspect. Given this, the empirical finding that innocent suspects are more often identified in showups than lineups is unsurprising. Steblay et al, Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law & Hum Behav 523, 533 (2003).
The suggestiveness of a showup is aggravated when it is conducted in a police stationhouse. In holding stationhouse showups inadmissible as a matter of law, New York‘s highest court acknowledged this added layer of suggestion: “[u]nreliability of the most extreme kind infects showup identifications of arrested persons held at police stations . . . .” People v Riley, 70 NY2d 523, 529; 517 NE2d 520 (1987). See also State v Gordon, 185 Conn 402, 414; 441 A2d 119 (1981) (“The circumstances of the station house show-up unnecessarily suggested to the victim that she should positively identify the defendant.“), overruled on other grounds by State v Artis, 314 Conn 131 (2014).
In this case, all we need to observe in order to conclude that the procedure was suggestive is that defendant was shown singly to the witness.6 The prosecution
The prosecution argues that Detective Sergeant Rivard did not suggest either of the men was involved in a criminal investigation, but that is inaccurate. Taking the detective sergeant at his word that he did not make any sort of announcement about his suspicions, Jones could plainly see for himself that defendant and Ramsey were involved in a criminal investigation—being the subject of a showup is involvement in a criminal investigation. Further, Jones testified that he understood he was taken to see defendant for the purpose of making an identification. The procedure the police used was certainly suggestive.8
Fair and reliable identificаtion procedures are not something that should be controversial in Michigan‘s law enforcement community. Putting aside that showups were considered “antiquated” in 1940 and have been “widely condemned” since at least the 1960s, in 2015 the Prosecuting Attorneys Association of Michigan (PAAM) published best practices that advised agencies to provide clear written policies on conducting identifications and to provide training to officers on minimizing contamination. Prosecuting Attorneys Association of Michigan, Best Practices Recommendation: Eyewitness Identification and Procedures, available at <https://www.michiganprosecutor.org/files/PAAM_Best_Practices_Eyewitness_Identific
Q: During the course of the time that you were at the City of Saginaw Police Department, were you walked down a hallway?
A: Yes sir.
Q: Purpose of identifying anybody?
A: Yes sir.
Given that Jones understood he was being asked to identify defendant and Ramsey as participants in the shooting, it could not have appeared to Jones that defendant and Ramsey were at the police station for innocent reasons unless Jones thought the detective sergeant was asking him to identify random people at the station as participants in the crime. Jones never testified to that, and we decline to entertain that possibility.ation.pdf> (accessed February 14, 2020) [https://perma.cc/5LM4-BJLQ]. Although PAAM discussed photo arrays and lineups, it did not advise agencies to conduct showups. Id. PAAM recommended that identifications be conducted by an officer who is not aware of who the suspect is to avoid
Even earlier, in 1999, the United States Department of Justice (DOJ) offered similar advice. United States Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement, available at <https://www.ncjrs.gov/pdffiles1/nij/178240.pdf> (accessed February 14, 2020) [https://perma.cc/8EUR-L28V]. The DOJ advised that because there was “inherent suggestiveness” in a showup, the procedure should only be used “[w]hen circumstances require,” and in that event the suggestiveness should be minimized with the use of procedural safeguards. Id. at 27. Like the PAAM best practices, the DOJ-suggested safeguards were not used here. The showup was suggestive, without any procedures used to mitigate its suggestiveness.
B. NECESSITY
None of this is to say that the police may never conduct a showup, despite its suggestiveness. Having concluded that the identification procedure was suggestive, we next ask whether the suggestiveness of the procedure was necessary.10 There are instances in which a fair and nonsuggestive procedure simply is not possible. For example, in Stovall the only witness to a murder had been stabbed 11 times and was in the hospital awaiting a major surgery needed to save her life. Stovall, 388 US at 295. The police brought their suspect to the hospital where he was shown singly to the witness. Id. However, she was the only witness who could confirm or deny the suspect‘s involvement and “[n]o one knew how long [the witness] might live.” Id. at 302 (quotation marks and citation omitted). The circumstances of that case made the showup necessary, and those circumstances certainly do not present the only situation in which a showup might be necessary.
But we do not need to explore the boundaries of what amounts to necessity or adopt any specific rule to see that the
C. RELIABILITY
Even though the identification procedure was unnecessarily suggestive, the evidence it produced could still be admissible unless the improper police conduct created a “substantial likelihood of misidentification.”12 Biggers, 409 US at 201; Perry, 565 US at 239 (quoting Biggers); People v Thomas, 501 Mich 913, 913 (2017). A per se rule of automatic exclusion of unnecessarily suggestive identification procedures was rejected by the United States Supreme Court in favor of a “totality of the circumstances” approach aimed at balancing three factors: preventing unreliable eyewitness testimony from getting to a jury, deterring the police from conducting unnecessarily suggestive procedures, and the effect on the administration of justice. Manson v Brathwaite, 432 US 98, 112-113; 97 S Ct 2243; 53 L Ed 2d 140 (1977).13
An identification infected by improper police influence . . . is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.14
observer.” Id. Jones‘s limited opportunity to view the defendant at the time of the crime does not provide strong indicia of reliability.15
Regarding the second Biggers factor, Jones‘s attention was drawn to the shooting, but Jones does not appear to have focused on the physical features of the shooter. In Biggers, the witness faced her assailant “directly and intimately” and was a “victim of one of the most personally humiliating of all crimes.” Id. In this case, to the extent that Jones was focused on the scene, his testimony indicates that he was looking at the Jeep, the driver of the Jeep, and the gun rather than at the shooter. Jones testified his attention was drawn by the gun: “I seen [sic] the gun, I can‘t identify the person who was really.” Given that the witness himself testified he “wasn‘t paying attention” to the physical features of the person he was asked to identify, we dо not believe that his degree of attention provides strong indicia of reliability.16
The description Jones gave before viewing defendant and Ramsey matched them in a general sense. In Biggers, the witness‘s description included specific details of “approximate age, height, weight, complexion, skin texture, build, and voice . . . .” Id. Here, Jones described the pair as black men wearing white shirts driving a Jeep, and those generalities matched
The level of certainty of the witness at the confrontation is difficult to evaluate because it was not documented. In Biggers, the witness testified, “when I first laid eyes on him, I knew that it was the individual, because his face—well, there was just something that I don‘t think I could ever forget.” Id. at 195-196. In this case, Jones denies even making an identification. The detective sergeant testified that Jones identified defendant, but the detective sergeant provided no information about Jones‘s level of certainty at the confrontation. Since Jones denies even making the identification and, at any rate, the prosecutor does not even claim Jones had a high level of certainty, it is hard to see how this could be a strong, or for that matter any, indication of reliability.18
The time between the crime and confrontation, here 4 or 5 hours, is clearly much shorter than the span of 7 months in Biggers. Id. at 201. This is the sole Biggers factor relied on by the trial court: “the details of the crime were still fresh in the witness’ mind.” This factor provides some indicia of reliability.
Lastly, the trial court reasoned, “[t]he fact that Jones identified [defendant] as the gunman, but did not identify Ramsey, indicates that he was relying on his memory of the crime and was not influenced by the suggestiveness of the
Having reviewed the Biggers factors and other evidence relied on by the trial court, we do not believe that the prosecution has met its burden to show that the indicia of reliability in this case “are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances . . . .” Perry, 565 US at 232.
D. HARMLESSNESS
Finally, having concluded that the showup was unnecessarily suggestive and unreliable, we must determine whether the error of its admission was harmless. As noted, introduction of a tainted identification violates the constitutional guarantee of due process. Moore, 434 US at 227. The error was preserved with the objection to Detective Sergeant Rivard‘s testimony. This Court reviews preserved constitutional errors to determine whether the beneficiary of the error has established that the error was harmless beyond a reasonable doubt. Kurylczyk, 443 Mich at 315-316 (opinion by GRIFFIN, J.); id. at 318 (BOYLE, J., concurring in part); People v Anderson (After Remand), 446 Mich 392, 406;
The prosecution argues that the admission of the showup was harmless because the identification‘s unreliability was exposed to the jury through cross-examination and because the jury was instructed to evaluate the reliability of the identification. Said another way, the showup had so little value it could not have affected the jury‘s verdict. When an appellate court is considering harmlessness, it will always be the case that the identification was unreliable. Further, it should always be the case that defense counsel explored reliability through cross-examination and the jury was instructed to evaluate the reliability of the identification. The prosecutor‘s position sweeps too broadly—it would render every error of this kind harmless.
Courts have widely acknowledged that juries place disproportionate weight on eyewitness identifications, even if they lack indicia of reliability.19 While the showup
But, as with Kurylczyk, we must determine whether the prosecution‘s case was “significantly less persuasive” without the showup. This requires us to consider the remainder of the prosecution‘s case. Without the showup, the prosecution‘s only evidence was the security camera compilation and Watkins‘s identification of the Jeep.
The compilation is far from conclusive. While a Jeep passes by in each clip, there are no identifiable distinguishing features. The compilation might depict the same Jeep in each of the clips, or it might not. The compilation might depict the Jeep from the crime, or it might not. The last clip depicts the traffic stop of the Jeep defendant and Ramsey were traveling in, but earlier clips might or might not. There simply is no way to know. Even if the compilation did trace one vehicle from the crime to the traffic stop, it also shows that, after the shooting, at least one person got out, and at least one person got in. There is no way to determine whether the person or people who got out of the Jeep are the same as the one or ones who got in. Watkins‘s identification of the Jeep via a photograph is also far from conclusive. The color and make were the only features of the Jeep she seemed aware of. She failed to identify any other aspect about the Jeep that was familiar to her: “I don‘t know the difference, new, old. I know it looked like a Jeep. . . . It was a box.” And it is worth again noting that the license plate on the Jeep defendant was in when he was arrested did not contain any of the letter combinations that Jones reported to police. Without the showup, this is the sum of the prosecution‘s case. We have little trouble concluding that it is “significantly less persuasive” without the showup.
Our conclusion is buttressed by the fact that the triаl court also found the prosecution‘s
IV. CONCLUSION
We conclude that the showup conducted by the police was unnecessarily suggestive and unreliable. Further, the error was not harmless. Accordingly, we reverse the Court of Appeals judgment, suppress any evidence from the showup, and remand to the Saginaw Circuit Court for a new trial.
Megan K. Cavanagh
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TRAVIS TRAVON SAMMONS, Defendant-Appellant.
No. 156189
STATE OF MICHIGAN SUPREME COURT
ZAHRA, J. (dissenting).
I respectfully dissent. On a sunny June afternoon, 16-year-old Dyjuan Jones witnessed the murder of Humberto Casas from approximately 20 to 25 feet away while riding in the back of his mother‘s vehicle. Specifically, Jones observed a passenger exit a light gray Jeep and fire multiple shots at Casas. Jones did not have a clear view of the driver, who remained in the Jeep throughout the incident. But Jones had a clear, unobstructed view of the shooter. At the scene, Jones provided police with a description of the driver, the passenger-shooter, and the vehicle in which they fled after the shooting. This information proved invaluable. Shortly after the shooting, police stopped a vehicle matching the description provided by Jones. The vehicle had two occupants: Dominique Ramsey, the driver, and defendant, the front seat passenger. The description of the shooter provided by Jones matched defendant. Defendant and Ramsey were taken to the Saginaw Police Department. Approximately four or five hours after the murder, Jones went to the Saginaw Police Department to be interviewed regarding the crime. During a break in the interview, Michigan State Police Detective Sergeant David Rivard asked Jones to walk down a hallway and look into two interview rooms located at the end of the hall. Detective Sergeant Rivard asked Jones to determine whether he knew anyone seated in either room, and if so, how he knew them. Jones did just that and upon returning identified defendant, who was seated in one of the rooms, as the shooter. Jones did not identify Ramsey, who was seated in the other interview room. At the preliminary examination and later at trial, however, Jones testified that he never identified defendant as being involved in the crime. The identification of defendant by Jones was nonetheless admitted into evidence through the testimony of Detective Sergeant Rivard pursuant to
I do not take issue with the majority opinion‘s conclusion that the identification procedure employed at the police station was suggestive and unnecessary. Nonetheless, I do not believe this procedure was so unduly suggestive as to lead to a substantial likelihood of misidentification. Viewed under the totality of the circumstances and weighed against the corrupting effect of the suggestiveness of this procedure, I conclude that the identification of defendant by Jones retained strong indicia of reliability. I therefore see no clear error in the trial court‘s decision to admit evidenсe that Jones identified defendant as the shooter. I would affirm the trial court and the Court of Appeals.
I. STANDARD OF REVIEW
A “trial court‘s decision to admit identification evidence will not be reversed unless it is clearly erroneous.”1 “Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made.”2
II. LEGAL BACKGROUND
The majority opinion has condemned the pretrial identification procedure used in this case as an impermissible showup.3 I do not contest that identifications made by way of a showup are disfavored.4 Nonetheless, the Supreme Court of the United States has made it clear that suppression of evidence is not required merely because the identification of an alleged assailant was obtained through a showup.5 The Supreme Court has stated that a rule requiring the automatic exclusion of showups “would ‘go too far,’ for it would ‘keep evidence from the jury that is reliable and relevant,’ and ‘may result, on occasion, in the guilty going free.‘”6 Indeed, it is well established that suppression of an eyewitness identification is a high bar to attain, requiring a defendant to show that “the
“[A]n unnecessarily suggestive identification may be admitted if it is sufficiently reliable.”8 Reliability of an eyewitness identification has been characterized as the “‘linchpin‘” in determining whether the identification is admissible.9 In Neil v Biggers, the Supreme Court of the United States provided a nonexhaustive list of factors to be considered in determining whether the identification was reliable, including:
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.10
In Perry v New Hampshire, the Supreme Court summarized the standard for excluding an eyewitness identification due to the lack of reliability:
An identification infected by improper police influence . . . is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.11
Thus, the ultimate determination of whether an eyewitness identification is admissible is a two-step interconnected inquiry.12 That is, courts must weigh the factors inherent to reliability, i.e., the Biggers factors,
III. DISCUSSION
A. THE SHOWUP WAS NOT UNDULY SUGGESTIVE
I do not take issue with the majority opinion‘s conclusion that the police station showup conducted in this case was suggestive and unnecessary. But the inquiry does not end there. The identification should not be suppressed unless the showup was so unduly suggestive that it led to a substantial likelihood of misidentification.14 To this end, I conclude the majority opinion fails to weigh each of the Biggers factors under the circumstances presented in this case and against “the corrupting effect of the suggestive identification itself.”15 For instance, defendant and Ramsey appeared before Jones in separate interview rooms and in street clothes. Both Ramsey and defendant sat unrestrained and unaccompanied by any law enforcement officers.16 For all intents and purposes, there was nothing to suggest to Jones or any objective observer that Ramsey and defendant were suspects in any crime, let alone the crime Jones was at the police station to discuss. Jones was present at the police station to aid law enforcement. From the objective facts, it could appear tо Jones that Ramsey and defendant were also present at the police station for innocent reasons.17
The majority opinion dismisses these facts altogether, stating that “noting other ways the showup could have been more suggestive does not help us determine whether this showup was suggestive.”20 The majority opinion misses the point, failing to acknowledge that these are facts properly considered under the “totality of the circumstances” analysis; facts that are pertinent to the ultimate inquiry of whether the identification by Jones was sufficiently reliable to overcome its overall suggestiveness.21
B. THE IDENTIFICATION OF DEFENDANT BY JONES WAS RELIABLE
Next we must determine whether the identification of defendant by Jones was sufficiently reliable to outweigh the suggestiveness of the showup.22 This inquiry is
1. THE OPPORTUNITY FOR THE WITNESS TO VIEW THE ASSAILANT AT THE TIME OF THE CRIME
Regarding the first Biggers factor, Jones had ample opportunity to view defendant at the time of the crime. The shooting occurred on a clear, sunny afternoon in June, and Jones had an unobstructed view of the shooting from about 20 to 25 feet away while in the back of his mother‘s car. When asked at trial whether he “had a pretty good . . . view of what was going on,” Jones answered in the affirmative. The majority opinion concludes, with no objective support, that Jones was a mere casual observer whose opportunity to view the crime was poor. But Jones was not required to be an active participant in the events he observed in order to have a good opportunity to observe defendant.24 In fact, the conclusion that Jones was unable to adequately view the crime as a mere casual observer is belied by the detail with which Jones was able to describe the crime. At the preliminary examination, Jones stated that the shooting occurred in “[n]o less than a minute,”25 during which time Jones observed a Hispanic male (Casas) walk out of a store when an African-American man got out of a Jeep and fired three gunshots at Casas. The shooter‘s gun jammed, but after approximately five seconds, the shooter relieved the jam and fired more shots at Casas while Casas tried to flee. The driver remained in the Jeep. Jones described the shooter as an African-Amеrican male with a shaved head wearing a white t-shirt and black cargo
2. THE DEGREE OF ATTENTION PAID BY THE WITNESS
As to the second Biggers factor, the degree of attention that Jones paid to the shooting is more difficult to discern than the majority opinion suggests. Viewing the testimony of Jones as a whole, two divergent paths emerge regarding the degree of attention he paid to the crime. The majority opinion cites the testimony of Jones at the preliminary examination to conclude that Jones was more focused on the Jeep, the driver, and the gun rather than the shooter. The majority opinion chooses this path to conclude that Jones did not pay a high degree of attention to the crime. An alternative path that emerges from the testimony of Jones, the one the jury chose, suggests that Jones was paying attention to the incident as a whole, not everything except the shooter. This is evidenced by the way Jones recounted the crime and his description of the shooter. This path provides sufficient indicia of reliability under the second Biggers factor. Where the testimony of a witness presents different, plausible versions of what the witness observed, this Court should defer to the jury to choose which version to believe.28
3. THE ACCURACY OF THE PRIOR DESCRIPTION OF THE ASSAILANT MADE BY THE WITNESS
Regarding the third Biggers factor, the description of the shooter that Jones provided to the police accurately matched defendant. When Bridgeport Township Officer Tyler Poirer pulled over the Jeep in which Ramsey and defendant were traveling, defendant was wearing a white t-shirt and black shorts and he appeared to have a shaved head, or at least a very short hairstyle. Significantly, even general descriptions of physical characteristics and external features, such as the shooter‘s clothing, can be evidence in favor of reliability.32 The only aspect of defendant‘s appearance that arguably did not match the description of the shooter provided by Jones was the fact that defendant wore shorts when he was apprehended, not pants. All other aspects of that description accurately matched defendant, and this minor distinction goes to the weight afforded
The majority opinion goes astray by focusing too heavily on the fact that Jones misidentified the license plate of the Jeep in which the assailants fled and on the fact that Jones erroneously described Ramsey as weighing between 280 and 320 pounds and having a beard while he actually weighed about 150 pounds and had short facial hair stubble. But these discrepancies are substantially less relevant considering that the other characteristics of the Jeep provided by Jones accurately matched Ramsey‘s Jeep. More significantly, Jones did not identify Ramsey at the showup. Jones only identified defendant. Thus, with respect to defendant, the description offered by Jones was reasonably accurate.34
4. THE LEVEL OF CERTAINTY THE WITNESS SHOWED AT THE PRETRIAL IDENTIFICATION PROCEDURE
As to the fourth Biggers factor, there is no evidence in the record regarding the level of certainty Jones displayed when he identified defendant as the shooter. At trial, Detective Sergeant Rivard simply testified that Jones identified defendant as the shooter. In contrast, Jones denied ever making the identification. Because there is no evidence regarding the level of certainty Jones possessed at the time of the pretrial identification procedure, this factor does not weigh for or against the reliability of the identification of defendant by Jones.
5. THE LENGTH OF TIME BETWEEN THE CRIME AND THE CONFRONTATION
Regarding the fifth Biggers factor, that Jones identified defendant approximately four or five hours after the shooting occurred weighs in favor of reliability. This time span between Jones witnessing the shooting and his identification of defendant at the police station is extremely brief. Thus, the identification was made while the shooting was fresh in the mind of Jones. This Court has found reliable an identification that occurred roughly two
6. THE TOTALITY OF THE BIGGERS FACTORS
Weighing these factors under the totality of the circumstances and against the corrupting effect of the overall suggestiveness of the identification process demonstrates that the identification of defendant by Jones retained strong indicia of reliability such that the suggestiveness of the showup did not lead to a substantial likelihood of misidentification. Jones identified defendant as the shooter while the incident was still very fresh in his mind. Jones had an unobstructed view of defendant during daylight hours. The opportunity of Jones to view the shooter was admittedly brief as the crime occurred quickly and while Jones and his mother fled from gunfire. But Jones, who was relatively calm throughout the incident, nonetheless had sufficient time to view the shooting and provide police with a general description of the physical characteristics and clothing of the shooter that ultimately matched defendant. In sum, the police station identification procedure was not so unduly suggestive that it outweighed its reliability. Any shortcomings in the identification procedure go to the weight of the evidence, not its admissibility.38 Accordingly, the trial court and the Court of Appeals properly concluded that the evidence showing that Jones identified defendant as the shooter was admissible.
Given this conclusion, it is not necessary to discuss whether any error in admitting the identification made by Jones was harmless beyond a reasonable doubt. I am compelled, however, to address the majority opinion‘s concerns with juries being so
Surely, we cannot say that under all the circumstances of this case there is a very substantial likelihood of irreparable misidentification. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.40
We trust juries to make difficult credibility and reliability determinations every day, and I fail to see why this case should be any different.41 The only unique aspect of this case is testimony from Jones that he never identified defendant as the shooter at the police station, thus causing evidence of his identification to be admitted through Detective Sergeant Rivard. But our rules of evidence specifically account for a situation like this, permitting prior statements of identification to be used as substantive evidence of guilt as long as the declarant (Jones) is subject to cross-examination regarding the identification.42 It makes no difference whether the declarant‘s testimony at trial is consistent with the prior statement of identification.43 There are many situations in which the story of a witness may change during the course of a criminal prosecution, and I decline to speculate why a discrepancy exists here. As in any other criminal prosecution, the jury here was tasked with weighing the reliability of the identification, as well as examining the demeanor, credibility, and veracity of both Jones and Detective Sergeant Rivard as they each testified.
Finally, numerous constitutional and evidentiary safeguards “caution juries against placing undue weight on eyewitness testimony of questionable reliability.”44 These safeguards include defendant‘s right to confront and cross-examine the witnesses against him;45 his right to the effective assistance of counsel, who can place doubt in the jurors’ minds through cross-examination, opening statements, and closing arguments;46 an eyewitness-specific jury
IV. CONCLUSION
When viewed in totality and weighed against the corrupting effect of the suggestive identification itself, the identification of defendant made by Jones retained strong indicia of reliability and did not lead to a substantial likelihood of misidentification. The trial court properly admitted Detective Sergeant Rivard‘s testimony regarding this identification, allowing the jury to consider its ultimate weight. For these reasons, I would affirm the trial court and Court of Appeals, and I would affirm defendant‘s conviction and sentence.
Brian K. Zahra
Stephen J. Markman
Notes
Further, Jones testified at trial that the shooter was an African-American male with a bald head wearing a white t-shirt and “probably” black cargo pants.As we were crossing the tracks on Cumberland, we were passing a little auto body shop or whatever. And as we passed the tracks, I heard what I thought was firecrackers. And then, I didn‘t pay no mind to it.
But then, I heard them again, so I turned around, and I see an African-American male shooting a Hispanic male. And when the firecracker—well, when the gunshots stopped, I see the Hispanic male, like, rolling in the—from the sidewalk into the street, trying to get away from it. And, as the gun unjammed when I thought it jammed, he started shooting again. And the Hispanic male just kept rolling and rolling until he just didn‘t roll any more.