People v. Kurylczyk

Kurylczyk PEOPLE v KURYLCZYK (Calendar 2). 13, Argued January No. Decided Docket No. 91867. 20, Supreme August by the Court of 1993. Certiorari denied — (1994). 10, 1994, January the United States on 510 US Court, in the St. Albín J. was convicted Clair Circuit J., possession Deegan, robbery E. of bank and the of a Peter during felony, subsequently the commission of a and firearm offender, pleaded guilty being offense. an habitual second Kelly P.J., Appeals, Brennan, and Michael Court JJ., unpublished opinion per Walsh, and D. F. affirmed in an (Docket 117099). appeals, asserting curiam No. The defendant during to the assistance of counsel a that he was entitled lineup photo- photographic conducted before his arrest and impermissibly suggestive. graphic corporeal lineups were opinion by joined by I. In an Justice Justice joined by opinion by Mallett, Boyle, Justice and an Justice Supreme Riley, Court held: denying motion The trial court did not err in the defendant’s corporeal lineup photographic to exclude evidence identifications. required right of counsel is not at a 1. The Sixth Amendment custody. Only photographic lineup unless the accused is may suspect is not in under unusual circumstances a who during pretrial photographic custody right a have a to counsel case, although pri- In this the defendant was a identification. suspect, previously mary and had not he had not been arrested robber; by any as the nor was he the been identified witness array, only suspect being investigated. photographic In the suspect included. Under these cir- of another cumstances, appointment necessary of counsel was .neither nor feasible. photographs, composition of 2. Differences in the photographed, physical of the individuals or characteristics References 732, 734, 2d, Law §§ Am Constitutional Law Criminal § Jur 800, 802, 974; Evidence 371.4. § photographic Admissibility as affected of evidence of identification procedures. by allegedly ALR3d 1000. pictured do clothing the others worn a defendant and suggestive. A render defective; necessarily constitutionally suggestive lineup it is not circumstances, if, totality improper only under of The rele- there likelihood misidentification. is a substantial light suggestive inquiry unduly of it was vant is whether case, trial court did all In this the the circumstances. finding of clearly there was no substantial likelihood err in that testimony was from witnesses No elicited the misidentification. indicating the was chosen because that defendant’s Rather, testimony permitted suggestive the any of features. the the have been trial to conclude that defendant would court identified, suggestive photo- regardless any features of his of photographs. graph publication Be- the the of surveillance or suggestive, array impermissibly was not cause the subsequent in-court it did not taint identifications. corporeal lineup, photo- suggestiveness like a 3. The of a lineup, light totality graphic the of the in of must be examined physical Generally, a sus- differences between circumstances. themselves, pect lineup participants, do not other in and of and viewing impermissible suggestiveness. Like of the constitute publication photographs, does the surveillance subsequent lineup the witness’ not taint a where identification published photographs. unduly by the In this is not case, influenced by nothing the in clear the record demonstrates error concluding corporeal lineup was not trial court in impermissibly suggestive. joined opinion by II. Justice In an Justice by opinion joined Brickley, Chief Mallett, and an Justice Cavanagh Supreme also Levin, and Justice Court Justice held: testimony admitting Any the bank error in identification manager beyond a doubt. was harmless reasonable admitted, erroneously testimony is re- reversal Where quired average prosecution’s jury would found the if an have persuasive testimony. significantly How- case without less ever, if it error is to be harmless can be shown considered erroneously beyond that the admitted testi- a reasonable doubt mony jury’s not affect verdict. did Affirmed. joined concurring part by Justice Boyle, Riley, in Justice testimony dissenting part, additionally that the

and in stated manager cognizable of a claim the bank did not rise the level process. process only if of due Due would be offended denial police something suggestive light done so in of all had the circumstances that it led a substantial likelihood of imper- misidentification. There is no indication the record of police missible conduct. Cavanagh Brickley, joined by Justice Chief Justice Levin, concurring part dissenting part, Justice stated given suggestiveness photographic array of the in this reliability case and the lack of of the identifications under the circumstances, totality array permitting and the trial court erred in identification However, testimony array. exposure about the even if the identifications, subsequent their witnesses tainted the error light against was harmless in of the other evidence offered defendant. Photographic Right — Lineups — 1. Evidence to Counsel. right required The Sixth Amendment of counsel is not at a photographic lineup custody; only unless the accused is in may suspect under unusual circumstances who is not in custody right during pretrial photographic have a to counsel (US VI). Const, Am Photographic Lineups Suggestiveness. — — 2. Evidence composition photographs, physical Differences in the of in the photographed, characteristics of the individuals or the cloth- ing by pictured worn a defendant and the others do not render photographic lineup impermissibly suggestive; a a necessarily defective; constitutionally is not it im- is if, circumstances, proper only totality under the of the there is misidentification; a substantial of likelihood the relevant in- quiry unduly suggestive light is it whether was of all the circumstances. Corporeal Lineups Suggestiveness — — — 3. Evidence Preview of Photographs. suggestiveness corporeal lineup, The of a like a lineup, light totality must be examined in of the circum- stances; generally, physical suspect differences between a and themselves, lineup participants, other in and of do not consti- impermissible suggestiveness; viewing tute like the of surveil- photographs, publication photographs lance of does not subsequent lineup taint a where the witness’ unduly published by photographs. influenced Kelley, Attorney General, Frank J. L. Thomas Nickerson, Casey, General, Solicitor Robert J. Mich Geippin, J.

Prosecuting Timothy Attorney, Morris, K. As- and people. Prosecuting Attorney, for the sistant Neville) (by Amy Appellate for Defender State the defendant. challenges his convictions Defendant robbery1 possession firearm dur- of a and

of bank felony2 ground ing on the of a the commission purposes pretrial procedures deprived for identification used rights of constitutional him his Upon trial.4 re- and a fair of counsel3 assistance requiring view, reversal and find no error we Appeals. Court decision of the affirm the I August 8, 1988, Fort branch Gratiot On People’s Huron was robbed Bank in Port (including approximately $22,000 more $600 than currency) by a a man armed with in Canadian shotgun escaped in older model an sawed-off who Chrysler. tellers, Three bank branch black robbery manager, witnessed customer gave descriptions his car to of the robber and and investigators. photographs addition, of the rob- surveillance camera. taken the bank’s ber were descriptions given The matched heavy, perpetrator eyewitnesses: awas cap, wearing a short-sleeved man a baseball white shirt, jeans, attached to a and he had wallet loop, extending com- a belt from or belt chain monly wallet. as a trucker’s referred photographs were

After two surveillance US MCL US MCL Const, Const, 750.227b; MSA 750.531; Am Am MSA 28.799. VI; XIV; Const Const 28.424(2). 1963, 1963, art art 1, 1, § 20. 17.§ Kurylczyk published newspaper days in a local a few after County Depart- crime, the St. Clair Sheriff’s phone regarding ment received several calls robbery. At least one caller identified defendant photographs. Albin as the man prompted This information detective and an fbi agent August 17, to visit defendant at his home on request, permitted 1988. At their car, officers to search his house and his which was getaway eye- similar to the car described agreed accompany witnesses. He also to the inves- tigators police to the local station for further photo- there, interviews. graphed by he Once consented to be time, the detective. At that he represented by any counsel, nor did he make request for counsel. day being

On the same that defendant was deputies responded interviewed, other to a call from bank. Two of the tellers believed the may customer, robber have returned when a robber, dressed like the attempted entered the bank and exchange currency. Canadian some by delaying The him tellers detained his trans- deputies However, action until an arrived. after investigation, law enforcement authorities were satisfied that this customer was not the bank any robber. He was not included in quent of the subse- procedures challenged that are appeal. in this August days later,

Two on the detective array photographs, including an assembled of six he had taken of defendant and one suspect. array of another was shown two eyewitnesses, Mary the five bank tellers Kamendat Cindy and Kurylczyk Dortman. Both identified defendant result,

as the bank As a defen- robber. arraigned. dant was arrested and Following arraignment August 20, 1988, on Mich by J. being courthouse, defen- led from the he was as reporter. photograph a news was taken dant’s close-up photograph, shot of defendant’s This face, page appeared the front in color on later newspaper. the local publication August 1988, of the after

On par- newspaper, photograph defendant in the color lineup, ticipated corporeal at which he was in a lineup represented by in the All six men counsel. pants greens” "jail for indi- issue wore —standard light being jail blue short- held viduals —and from the bank five witnesses shirts. The sleeved lineup separately into the room were taken defendant as witness identified the men. Each view writing provided her rea- robber, and each making that identification. for sons exclude the trial, moved to Before defendant eyewitnesses. testimony A identification hearing conducted,5 at which defendant Wade pro- argued first arrange- He claimed that was tainted. cedure photo- pictures caused his size of the ment and graph Pointing to the out from the others. to stand newspaper publication of the bank’s surveil- in the argued photograph, the wit- defendant lance published photograph, on the had relied nesses rather memories of the actual than on their own Finally, robbery. contended that he was was defective because represented by counsel. not then corporeal lineup argued next Defendant photo- array As with the also tainted. singled graphs, out from claimed that he was he Wade, 218; 1926; 2d 1149 388 US 87 S Ct 18 L Ed United States v hearing (1967). incorrectly hearing identified as a Walker (On People points v record of this case. Walker several (1965). Carter, People Rehearing), 132 NW2d 87 See 374 Mich 558, 596; 330 NW2d Opinion by Griffin, clothing appearance. the others his publication addition, he asserted that in the local newspaper of the surveillance and the postarraignment photograph had rendered defec- tive the identifications made witnesses at the corporeal lineup. finding motion,

The trial court denied the photographic lineup corporeal neither the lineup nor the impermissibly suggestive; indeed, judge trial stated that he was "astounded” at the similarity lineups participants of the individual in both pretrial

and concluded that identifica- process improperly tion had not been affected published photographs. eyewitnesses regarding trial, At all five testified pretrial defendant, their identifications of and each also identified defendant in court as the person who robbed the bank. Defendant testified presented testimony neigh- his own defense and acquaintances support bors and business of an reputation alibi defense and his for truthfulness. presented expert testimony regard- Defendant also ing eyewitness the nature of identifications and the likelihood of erroneous identification. jury

The convicted defendant of the bank rob- bery felony-firearm charges. Subsequently, he pleaded guilty felony to a second habitual offender charge,6 imprisonment forty years and was sentenced to to ten two-year

and to a term consecutive felony-firearm for conviction. The of Court Appeals unpublished per affirmed in an curiam opinion. granted appeal. This Court then leave to 439 Mich 1002 (1992).7__ 6 breaking entering Defendant had been convicted of when he was nineteen. grant provided application delayed order that "the for leave considered, appeal granted, and it is limited to the issue pretrial procedures deprived whether of a the defendant fair trial.” Mich

II photo- challenges presents to the two Defendant graphic lineup his ar- before that was conducted First, entitled to that he was he contends rest. photographic during the of counsel assistance argues lineup. Second, he in violation right process. of due Amendment his Fourteenth challenges in turn. consider each these We shall A States of the United The Sixth Amendment guarantees has crimi- who been one Constitution right nally have Assistance "to accused right limited is not for defence.” This Counsel his " trial, 'critical’ to all but extends formal proceeding. stages” United States of the criminal 2d 218, 224; 18 L Ed Wade, 388 87 S Ct US example, person of a accused For pretrial right to at certain has counsel crime arraignments, Alabama, 45; 287 53 S v US Powell (1932), during 55; 77 158 or custodial L Ed Ct interrogations, Arizona, 436; 384 86 v US Miranda (1966). Indeed, "the 1602; L Ed 2d 694 16 S Ct guaranteed stand is that he need not accused alone pros- against stage any State out, informal, or ecution, in court where formal or might derogate the ac- 226. from absence counsel’s cused’s right Wade, 388 a fair trial.” US to postindict- Wade, to the Court referred corporeal com- as a "confrontation ment pelled the accused and the State between crime,” or to US victim witnesses stage prosecution critical of ruled that it is a much entitled to the aid accused is as at which the US 237. the trial counsel as at itself. of People years later, Six the Court determined that "the grant right Sixth Amendment does not photographic displays counsel at conducted purpose allowing for the Government of a witness attempt an identification of the offender.” Ash, 300, 321; United States v 413 US 93 S Ct (1973). Noting L37 Ed 2d 619 present photographic accused is not display, at such a compared procedure the Court this to "the prosecutor’s other interviews with the victim or other witnesses before trial.” US 325. The persuaded Court was "not the risks inherent photographic perni- displays in the use of are so extraordinary safeguards system cious that an required.” 413 321. US Supreme Although the United States Court deci- require photographic sions do not lineup, counsel at a argues that decisions of this impose requirement. do He main- Court such Michigan suspi- tains that courts have been more photographic the fed- cious identifications than imposed greater courts, eral and have therefore safeguards regarding their use. primarily relies on our

Defendant decision Anderson, 155; 205 Franklin extensively There, this Court NW2d jurisdictions, reviewed numerous cases from other regarding psychological literature as well as the and concluded that identifications concerning problems are the accu- there racy serious eyewitness identification and that real process prospects very for error inhere completely independent of the sub- completeness good faith of jective accuracy, or Mich witnesses. [389 180.] photographic of the Court’s distrust of Because 289 Mich 298 Griffin, procedures, estab- two rules were identification regarding their use: lished exceptions, identification Subject 1. to certain the accused not be used where photograph should custody. is in legitimate reason to use

2. Where there is a in-custody an ac- photographs for identification of cused, right much as he to counsel as he has procedures. corporeal identification would for [389 original.] in Emphasis 186-187. Mich triggered clearly indicated, these rules are As custody. case, in In this is when a argues custody; however, he not in defendant was applies requirement to the of counsel photographic lineup conducted before his arrest. subsequent this decisions of Court He asserts Appeals of have extended and the Court requirement to a de Franklin Anderson counsel police investigation, focus of a fendant who is the regardless custody. in of whether he is custody, in the first Franklin Anderson Because defendant was not apply. prohibits of rule does not lineups only pelled by That rule the use or when he can be com suspect custody a is in when corporeal lineup. People appear See v the state to (1974). Jackson, 323; arguable it 391 Mich 217 NW2d 22 While compelled participation corpo police defendant’s the real could have him, arresting lineup by defendant does not advance such an fact, argument. In that there would be numerous defendant concedes police suspect problems requiring officers to arrest a as with a rule they probable simply because wanted to soon as cause is established Wilson, People App See 95 Mich obtain some sort 93; identification. (1980). Appeals agree 290 NW2d 89 We with the Court (1972), Cotton, 763, 768-769; App NW2d it where said: by photograph widely Initial has been display effectively enforcement. The used law apprehending proven tool in offenders has while at the same time to be a valuable igno- "sparing suspects the innocent by allowing eyewitnesses miny of arrest to exonerate them States, through scrutiny photographs.” Simmons v United 967; Properly L 390 US 88 S Ct 19 Ed 2d People 299 v by Griffin, J. Opinion Appeals held have decisions Court Various photographic required at a counsel is that investiga- police suspect focus of a is the when App People DeMeyers, e.g., See, 183 Mich v tion. (On (1990); People Johnson 202 v 286; 454 NW2d (1989); Remand), App 423; 447 NW2d 180 Mich App People McFadden, 796; 407 NW2d 159 Mich (1987). an earlier stem from These decisions Appeals Cotton, decision, Court of App Cotton, the 763; 197 NW2d Mich challenge pre- Appeals to a considered a Court of photographic that the basis identification on trial represented by counsel. defendant was not the Relying prior cases, the Court and state on federal being custody in held that an accused held photographic any identifica- to counsel at entitled App proceeding. However, the 768. tion right normally that this to note was careful Court inis the accused "to situations where was limited custody at the time.” Id. require-

Despite that the counsel its conclusion lineups, in-custody usually limited to ment possibility un- to "exclude the refused Court suspect may a have unusual circumstances der right photographic pretrial to counsel during though time he is not at identification custody.” "unu- such 769. It concluded that Id. at presented case were circumstances” sual Although not in cus- defendant was it: before lineup, challenged tody he the time of previously taken and had been had been arrested lineups custody. Further, had con- been two into custody, he had been hé was ducted while lineups. during given those of counsel the advice inspection impounded Finally, for his car had been nec- precustody photographic are both identifications conducted discouraged. essary not and should be and desirable 443 Mich 289 Griffin, circumstances, investigators. those Under police strip Court determined could releasing right the defendant of his counsel photographic him from before the custody just display: Turning pres- display to the case, opinion

ent longer we are of the this was no purpose

an in-the-field identification. Its against by was to build a case eliciting a case the defendant evidence, extinguish not to against bystander. an 769- innocent [Id. 770.] in Cotton has never

The focus test articulated been applied by precustodial, this Court to a inves- identification. In a tigatory photographic nonbind- justices, People v ing opinion signed by only two Kachar, 78; (1977),9 400 Mich 252 NW2d 807 Cotton however, focus test from adopted; case, that the defendant already had been ar- rested, trial, placed bound over for in custody contrast, lineup. before the contested defendant was not Kurylczyk custody taken into before the photographic array. Although, he was a clearly, prime suspect, he was not the only suspect. More- over, at that no point positive one had made a identification of defendant as the robber.

Defendant situation more Kurylczyk’s closely People resembles the situation of the defendant Lee, (1974). v There, Mich NW2d we considered the of counsel at a necessity precus- photographic todial lineup part conducted as of an ongoing investigation. The defendant was selected as the from robber an eight-photograph display shown to an eyewitness several days after 9 majority justices participating agree A of the in a decision must to reasoning binding precedent. Negri the Slotkin, in order for it to become 105, 109; 244 NW2d 98 Kurylczyk People Opinion Griffin, suspected robbery. the robber that Lee was Police wearing police clothing in a he was because reported clothing to have matched argued appeal, Lee the robber. On worn been requirement of coun- Anderson the Franklin the mo- attached at at a sel police inves- the focus that he became ment tigation. disagreed. decision, unanimous In a We requirement apply to of counsel we refused suspicion pre-questioning, "pre-custody, mere the phase 391 Mich 625. We here.” that was evidenced custody that is the fact of "[i]t reiterated requires implementation Anderson of the Franklin citing Anderson, v James . . . .” Id. rule (1974). Because 419, 422; 216 NW2d 780 Mich police, con- we detained had not been Lee require simply "not feasible it cluded appointment 625. . . . .” 391 Mich of counsel facts in this to the of Lee are similar The facts of informa- various sources the basis of case. On Kurylczyk, Lee, was like defendant tion, defendant investigation police suspect primary of a in a robbery. previously had not Lee, As yet identi- arrested, had not been been any robber, not the and was as the fied witness investigating. police suspect only Although were whom inculpatory police evi- had more photo- against Kurylczyk time of his at the dence against police array graphic in Lee had than the suspect, had not in this case the detectives their Kurylczyk. investigation only to their narrowed the photograph array witnesses, photographic shown to suspect in included of another Kuryl- photograph of defendant to the addition very day czyk. Moreover, that on the police being to interviewed, back were called suspect. potential investigate to another the bank appointment circumstances, these Under 443 Mich Griffin, necessary nor At the counsel is neither feasible. stage investigation early of an of an unsolved investigators predict crime, wit- cannot whether a recognize particular suspect ness will a as the perpetrator impossible Thus, it to crime. is photographic help array know whether a will to against a the defendant” or "extin- "build case will guish against bystander.” Cot- case an innocent App supra, ton, Often, 769-770. the dis- tinction between those two courses action is apparent only eyewitness made, after an has or make, reason, failed to an identification. For this agree we with unanimous decision Lee that required precustodial, investiga- counsel is not at photographic lineups tory like the one that was used this case: argument right Defense counsel’s investigation

counsel attaches once "an cused” on a one, has fo- particular suspect is an inaccurate supposed it "pre- insofar as to refer custody” investigations. Mich [391 625.] photographic identifications, In the case of right custody. of counsel with attaches

B argues Defendant next array unduly sugges- shown to the witnesses was violating right process tive his of due under the Denno, Fourteenth Amendment. Stovall v US (1967); 293; 1967; 87 Ct 18 L S Ed 2d 1199 Frank- supra supra, Anderson, Wade, lin 388 US process challenge, 228. In order to sustain a due defendant must show that pretrial identifica- procedure light tion was so totality of the it circumstances that led to a sub- Big- stantial likelihood misidentification. Neil v Kurylczyk People by Griffin, gers, 375; Ct 34 L Ed 2d 196; 409 US 93 S (1972); supra, 626. If the Lee, 391 Mich see also pretrial procedure was finds court that trial impermissibly concerning suggestive, testimony trial. How- is inadmissible at that identification witness ever, in-court the same independent may in- basis for if an still be allowed un- is can be established court identification procedure. pretrial suggestive tainted supra, Anderson, 168-169. Mich Franklin review, admit court’s to the trial decision On unless reversed evidence will be identification it clearly Burrell, erroneous. Id. 439, 448; 339 NW2d 403 Clear reviewing left with court is exists when the error the definite has and firm conviction that a mistake Id. at 449. been made. argues pretrial

Defendant photographic array identify im- him was used to permissibly characteris- because various singled photograph him out to of his caused be tics from the other men. only argues He that he is array in dressed who was in the man clothing reported clothing that matches Particularly obvi- the robber. have been worn photograph is a chain attached in ous defendant’s extending rear to a wallet his belt and jeans. pocket photographic his of the others None More- a trucker’s wallet. wore plainly in the bank’s over, wallet visible this published that were surveillance the local complains paper. addition, defendant a closer dis- taken from his appears larger image than the tance, that his so appears background a differ- others, to be points Finally, that three out ent color. array mustaches; defen- have the men mustache, none not have a dant does 304 Mich 289 Opinion Griffin, J. having

witnesses described the robber as tache. a mus- According defendant, these cre- features ated a substantial likelihood of misidentification precluding any testimony regard- the admission of ing photographic array. disagree. We

"Generally, photo spread suggestive is not as long photographs as it contains some that are fairly representative physical of the defendant’s reasonably features and thus sufficient to test the Eyewitness Sobel, Identification, identification.” 5.3(a), pp § Thus, 5-9 to 5-10. differences in the composition photographs,10 physical in the char 11 photographed, acteristics of the individuals the pictured inor

clothing worn a defendant and the others photographic lineup12

in a have been 10See, Dean, (1981) e.g., People 1; App v 103 Mich 302 NW2d 317 (the panel impermissibly refused to find a identification suggestive simply composed because the defendant’s vertically tally); People photographs composed while the five other were horizon (On Rehearing), App 792, 799; v Wilson 96 Mich 293 (1980) (photographic 710 NW2d was not show evidence of flaw over the defendant’s forehead suggestive, light photographs of the fact that six "[a]U having great deal”); People been handled a v Thornton, (1975) (the App 768; photo 62 Mich 233 NW2d 864 graphic display though photographs was not even six were "full-body length” while the defendant’s awas "head and shoulders” shot). See, Sobel, generally, Eyewitness Identification, 5.3(a), pp 5-16 § to 5-18. 11See, People Powell, (1980) e.g., 287; App v 97 Mich 294 NW2d 262 (the only photographs depicted fact that three of the six a man resembling defendant did not render the description foot, tall, pound of the five nine inch 269 photographic array impermissibly sug gestive); People Richmond, App 178, 181; v 84 Mich 269 NW2d 521 (1978) (the photographic display impermissibly suggestive, was not though depicted photographs persons complex even with different pictures size); ions and facial hair and the were not all the same State, (1989) 345; App (only Futch v 192 Ga 385 SE2d 18 two of the photographs mustaches, depicted though six scribed the robber as even the witness de having mustache); Alvarez, a State v 145 Ariz (1985) (the only 701 P2d 1178 defendant was the individual with 1984) moles); State, (the (Ind, facial defendant was the Williams v 1102 NE2d only visibly face); individual awith scarred State v 1989) (the (RI, Ivy, 558 A2d 209 inclusion of four men with facial hair defendant). impermissibly suggest did not the choice of a clean-shaven 12See, e.g., People Hampton, 71, 77; App NW2d sugges-

found not to render a tive.

However, court find that a witness’ identi- will product of an was the fication of a defendant improper photographic if differences led to substantial likelihood typi- cases, of misidentification. cally In such witnesses on the basis of some select a defendant characteristic, rather than on basis external example, For in Common- the defendant’s looks. Thornley, 96; 546 406 Mass NE2d wealth v (1989), only the man of thirteen array the defendant was depicted photographic in who was men a glasses. array wearing that the The court found suggestive because the wit- was selecting photograph on nesses admitted glasses. basis of (Fla

Similarly, Henry State, 2d in 519 So 84 1988), patch App, that a on the witness testified clothing a in was factor his selec the defendant’s array. photographic from the tion of the defendant patch, factors, "created combined with other unnecessarily suggestive proce an lineup give ... as to rise dure and so taints the irreparable to a likelihood misidenti substantial Davis, 176 So 86. State v fication.” 519 2d See also 549 454; W Va SE2d (1975) (1974), grounds 231 NW2d 654 on other reversed (the display, reappearance . . . and in the "[d]efendant’s hatless, picture, so lone all others were were not his impermissibly hatted when suggestive very of mis a substantial likelihood that (D arose”); Kearney Maryland, Supp F taken identification 1983) Md, (the only fact the defendant was the individual description pictured of those worn in clothes matched significant identi because victim testified she robber was Smith, features); from United States v fied the defendant his facial 1979) (CA 8, (the only fact that the defendant was the 602 F2d 834 wearing pictured was not individuals who was bib overalls one ten suggestive impermissibly identify where the failure of several witnesses unduly finding array to the that the was not him contributed suggestive). Mich claim, ques- we do not analyzing defendant’s stood out photograph tion his contention that his in It suggestive from the others a fashion. is examining from that de- obvious distinct, be- particularly fendant’s wearing cause he is a trucker’s wallet However, photograph. suggestive lineup a is not defective one. necessarily constitutionally Rather, suggestive improper if only under of the circumstances there is a totality Lee, su- substantial likelihood of misidentification. therefore, pra 626. The is not inquiry, relevant lineup photograph suggestive, whether but light it was of all of unduly whether surrounding the circumstances the identification. examining When of the circum- totality stances, courts look at a of factors variety determine the likelihood of misidentification. Some Neil v of the relevant factors were outlined Biggers, supra at 199-200: cases,

As indicated our the factors to be evaluating considered the likelihood of misiden- opportunity tification include the of the witness to crime, the criminal at the view witness’ witness’ time of the the of the attention, degree accuracy of the criminal, prior description of the the level certainty of confrontation, demonstrated at witness length

and the of time between the crime and the confrontation. case,

Analyzing the relevant factors in this we hold that the trial court did not err when clearly it found that there was no substantial likelihood of misidentification during photographic array. this

First, neither although Ms. Kamendat nor Ms. Dortman saw defendant day before the of the robbery, ample both had opportunity view Griffin, during Mary the offense. Kamendat testi-

robber period for a fied that she viewed robber minutes, from a of as little three to four distance sight not as and one-half feet. She did lose one robber, front a view of both a side the him, saw of the him as he walked out

and watched occupied Cindy Dortman teller station bank. Mary She at Wade next to hearing Kamendat. testified good had look

that she also a as left the and that she watched him he robber building. provided

Second, a witnesses detailed de- both police shortly scription after to the robber Ms. Kamendat described the crime was committed. forty-six approximately forty-five or the robber as weighing years old, tall, six about 210 almost feet pounds, on or substance his with dust some other wearing him either a She as face. also described needing Cindy wig a haircut. Dortman noticed or wearing light-colored shirt, a a robber longer sunglasses, cap, had hair dark baseball age. also de- normal for man his She than wearing jeans, a chain him flared with scribed as pocket pulled hanging and his shirt over out of his "long, pants. noted that the robber had She his descriptions distinguished” very nose. These com- image port as in the of the robber seen with the image photographs, and with surveillance appears ar- as he ray. testified

Third, and Dortman both Kamendat they that defendant was the certain were robber. photographic array conducted

Fourth, robbery. Courts have two of the bank within weeks long eighteen delays as months after as held eyewitness an identifica- do invalidate a crime 308 Mich Opinion by Griffin, relatively span tion.13 the reduce the short time between robbery lineup in this case and does not

reliability of the identifications. Finally, is no there evidence tellers panicked psychologically were otherwise or debili- Carolyn Schultz, tated ager the crime. branch man- bank,

of the testified the tellers were type trained to this react situation and that they calmly robbery: did react to the They description they have a sheet that have to they they

write down what remember and did not they They talk to one another before did this. anything they wrote down could remember about suspect very quite quiet] [sic: and remained very policegot calm until there. One factor that tends to undermine the reliabil- ity photographic array of the identification is the days robbery misidentification several after already noted, bank customer as the robber. As period, thought for a brief Dortman and Kamendat However, the robber had returned to the bank. that, most, record their identification indicates as the customer robber was tentative. Nei- positively ther Kamendat nor Dortman ever iden- tified this as customer the man who robbed the Rather, bank. Kamendat testified she was caught guard off when overreacted she saw a appeared man who robber, to be the size robber, and who was dressed like the with a chain bag. on his However, belt that reached into a after reviewing day, the incident in her mind later that she came to the conclusion that the customer not the robber. At trial she testified that she never 13See, Fenn, (1988) e.g., (a App 318; State v Conn 547 A2d 576 delay unreliable); two-week did not render State v 1980) Stewart, (La, (a delay 389 So 2d 1321 thirteen-month did not identification); People Holmes, 204; invalidate Ill 2d 152 Ill Dec (1990) (an eighteen-month delay only NE2d 950 was relevant identification). weight given to the be Griffin, only investigators was the robber—14 that he

told that she and the other alike tellers "he looked felt looking him, worth a like it would be [sic: lot] into.” deputy the a that testified that she told

Dortman had as the robber and the same size customer was including robber, the the other similarities to pocket. primary hanging Her out of his chain concern, however, trans- that customer’s this exchange Canadian cur- of action involved the rency. reliability, an are of there other indicia Where identify inability a defendant or to the initial person will false identification another tentative not invalidate de- of the a witness’ identification supra, Carter, 415 Mich fendant. See App Pennington, 688, 694; 318 NW2d (1982); Briggs, 408, 700 F2d 542 United States (CA (1983); 1983), den 462 US cert (Ala App, State, 2d 1378 Crim 521 So Clements v 1988). opportunities case, these afforded the this accuracy perpetrator, the to view the witnesses their descriptions robber, the confidence of the they as the robber identified defendant with which reliability provided to allow indicia sufficient jury. to the of the evidence submission argued the the It is also eye- by photographic lineup the five of defendant publi- improperly influenced witnesses was newspaper the local surveillance cation in Generally, photographs. of such the use surveil- subject photographs identify a lance provide suggestive, such films "since showing memory-refreshing device, man 'the opposed robbery’ actually as committed who police suspect picture possible of 'some Dortman, Cindy who testimony is that of This contradicted him, said, Mary that’s robber.” Kamendat "that’s testified Mich Opinion Geippin, J. ” p supra, 5.3(g), Sobel, § However, files.’ 5-44. seeing case, this Kamendat did not remember during chain attached to the trucker’s wallet robbery. She saw it for the first time in the sur- photographs. appearance Thus, veillance of the photographs only surveillance served not to re- memory robbery, fresh her but to enhance important, it. More when Kamendat earlier mis- robber, identified a bank customer as the her primarily mistake was on the based fact Likewise, customer wore trucker’s wallet. Dort- man also saw surveillance plainly which the robber’s trucker’s wallet was visible.

Despite potential suggestive the influence of the photographs, sugges- surveillance as well as the lineup photograph, tiveness of the defendant’s we conclude that defendant has not demonstrated Nothing clear error record the court. trial the supports a conclusion that there awas substantial photographic array likelihood of misidentification at the any suggestive

as a result of example, testimony by influences. For there is no either teller that her identification of defendant’s photograph was made on the of her basis examina- photographs. fact, tion of the surveillance In each witness testified that the had no effect ability identify on her defendant as robber. important, Just as in contrast to the cases cited testimony earlier, no was elicited from the wit- indicating they pho- nesses chose defendant’s tograph photograph. suggestive because of the features of his Thornley

See Commonwealth v and Henry supra. State, Instead, the record contains testimony the sworn of two trained bank tellers they they recog- who stated that were certain that nized defendant as the man who robbed the bank. Surely testimony, along this with the other factors Griffin, permitted court conclude above, the trial

noted recognized would have tellers regardless suggestive robber, features as publication or the of the surveil- of his photographs. Therefore, the identification lance testimony photo- regarding tellers graphic properly array admitted as evidence was photographic array trial. Because the suggestive, impermissibly not taint the sub- it did sequent by the tellers. in-court identifications

III corporeal lineup argues Defendant also sin- because he was participants by appear- gled out the other his from eyewitnesses noted, viewed As five ance. earlier Cindy corporeal lineup Mary Kamendat, — Gladys Shirley Smith, Caris, Dortman, lyn Caro- defendant as the bank Schultz. Each identified lineup participants simi- in this wore robber. The greens -jail short-sleeved shirts. lar attire — appeared complains di- that he more Defendant he because had been sheveled than others jail wearing clothing days for several the same allowed to shave he had not been and because challenges jail. addition, he while participants mustaches, had three of because despite the de- He that none of witnesses the fact having robber as mustache. scribed the bank argues improper only of it three that was also the defendant) (including lineup participants had array. Finally, photographic appeared he in the publica- lineup argues the the was tainted pho- postarraignment and tion of the surveillance newspaper. tographs local in a lineup, suggestiveness Like a light corporeal lineup examined in must be of a 312 Mich 289 Opinion by Griffin, totality supra Stovall, circumstances. general "physical rule, 302. As differences be- suspect lineup participants tween a not, suggestiveness and other do impermissible themselves, in and of constitute People Benson, . .. .” v 180 Mich (1989), part App 433, 438; 447 rev’d in NW2d grounds on other among participants 434 Mich 903 Differences lineup in a significant only they appar- are to the extent are distinguish substantially ent defendant from the other to the witness and participants in the line- up. ... It is then that there exists a substantial among line-up par- likelihood that the differences defendant, ticipants, was the basis of the witness’ identification. recognition rather than [People James, 457, App 466; v 184 Mich 458 NW2d 911 469 (1990), NW2d grounds vacated on other 437 Mich (1991).] App Thus, Holmes, v 132 Mich (1984), 746; 349 NW2d 230 where the defendant participant lineup was the second tallest lineup imper others, and heavier than missibly was not suggestive ap because defendant’s pearance substantially similar to participants. People Horton, other 98 Mich (1980), App lineup 62, 67-68; 296 NW2d suggestive despite alleged was not age height and differences between participants despite other fact only participant that the defendant was the visibly with a scarred face. A in which the defen only participant dant was the with both a mus goatee impermis tache and a was found to be not sibly People Hughes, App 223; 180 NW2d (1970).15 description For a of a number of cases in which such differences Sobel, lineup overly suggestive, 3.5(b), supra, did not render the see § pp 3-46 to 3-50. 313 People v by J. Opinion photographs, viewing of surveillance

Like the photographs publication does of a defendant of lineup subsequent the witness’ where a not taint pub- unduly influenced photographs. Barnett, 163 v See lished (1987); People App 331; 414 378 NW2d Mich (On App Rehearing), 469; 319 Prast (1982).16 627 NW2d

Upon record, that the we conclude review testi- it found that err when court did not trial Mary regarding mony made the identifications Shirley Cindy Smith, and Dortman, Kamendat, photograph Gladys of A admissible. Caris was approximately corporeal men of shows six weight. age, height, the men None the same in an from the others stands out according Moreover, to their fashion. lineup, four of these none notes at written saw the she defendant because chose witnesses postarraignment or surveillance newspaper published of his or because were appearance. disheveled

Mary that defendant Kamendat wrote height. what like the man from size, Looks "[s]ame Cindy Dortman like him.” Stands I remember. factors: on other of defendant her selection based Shape pointed. large, appears face ”[N]ose size 1989) (the (CA 7, 733, Thieret, 738-739 887 F2d Mikel v See also days newspaper five photograph in a appearance the defendant’s array photographic was not him from a witness selected before a adequate oppor an suggestive, the witness had impermissibly tunity where accurately his described "the witness his attacker and to view photo array, attacker, identify very him from the time to took little crime”); only days identify after the him eleven was asked 1990) (a (CA 10, Elliott, bank F2d United States defendant, though had seen identify she even teller was allowed shortly newspaper photograph before fifteen-year-old him in the a selecting array, stated where she him from photograph and that influence her selection did not person not, really had robbed many ways, who resemble "did bank”). Mich Griffin, height same, view, six about the about from side put belly type.” In I foot. Stomach same size. beer selecting describing defendant, her reasons for length Gladys was the "[T]he Caris wrote: hair height, body chested, same, his build he’s barreled . . . the items features those were and his facial I felt the same as the bank robber.” that Shirley were "looked like

Smith wrote that defendant weight, man, hair. Side same facial the same profile very much like I remember from the looked you’ve day robbery. seen You know when of the others were even someone before. None sunglasses the hat and on he looked close. With like an exact match.” Nothing in a clear error the record demonstrates it concluded that the suggestive the trial court when corporeal lineup not was testimony Thus, to these four witnesses. their regarding corporeal lineup properly admit- ted.

IV manager testimony The identification of branch requires separate analysis. Defendant Schultz argues, People supra,

relying Prast, on v that her improperly in-court identifications were premised upon they were her admitted because viewing photographs, of the bank’s surveillance upon rather than her observation of the crime. agrees prosecution appeal on that her testi- mony disregarded should have been for this rea- son. hand, the other the trial court found that

On photographs "unduly were not surveillance influential” in her selection of the defendant. The prints record reveals surveillance film as well as the surveillance and Schultz viewed from the v Griffin, published photographs in the postarraignment Although newspaper. the Wade she testified hearing of defendant that her identification newspaper viewing upon premised her get photographs, I did not "because stated that she him, him from I identified clear view my picture camera took.” record whether from the It not clear to Mrs. shown were surveillance Although personnel. by law enforcement Schultz photo display government such conduct determining may graphs whether a factor be protection process violated, see has been due 980, 983 Stubblefield, 621 F2d United States (CA 1980); Otsuki, 411 Mass Commonwealth (1991), explore do not we 218, 235; 581 NE2d error, if the because we determine issue respect any, of defendant to the identification with beyond by a reasonable was harmless Schultz doubt. 2.613(A) provides an error

MCR grounds for not be evidence will of admission setting take this refusal to "unless a verdict aside appears sub- with the court inconsistent action 769.26; MSA justice.” MCL See also stantial testimony Accordingly, is errone- when 28.1096. probable ously the admitted, must determine we " testimony of an the 'minds on of that effect average jury.’ ” People 408, 430; Banks, 438 Mich v (1991), quoting Florida, v Schneble 769 475 NW2d 340 31 L Ed 2d 427, 432; 92 S Ct 405 US required an minds of if the Reversal prosecution’s average jury have found would ” " persuasive’ 'significantly without less case testimony. Banks, Mich erroneously admitted beyond a reason- However, if it shown can be 430. able testimony not affect did doubt that of jury’s admission verdict, the erroneous then Mich testimony is considered to be harmless. 551, 563;

Robinson, 386 Mich 194 NW2d (1972); People Watkins, 627, 667; 475 (1991); Anderson, 389 Mich Franklin NW2d 169. in this case demon-

Our review of the record prosecutor’s persuasiveness of strates that testimony. case unaffected Schultz’ testimony eyewit- jury heard the of four other nesses who identified defendant as the robber both Carolyn and in Schultz was the before trial court. prosecution’s important witness for the case. least only distance, from a and She observed only robber most, At for a few moments. her identifica- compelling testimony tion eyewitness testimony. was cumulative more important, any eyewitness . defects in the More brought out identifications were defendant’s vigorously counsel. He cross-examined the wit- credibility. addition, nesses and attacked their presented testimony Harvey Schulmann, he psychologist specializes Ph.D., memory, who human perception,

attention, and discredit reliability eyewitness identifications. Dr. Schul- twenty fifty per- mann claimed that between eyewitness incorrect, cent of all identifications are passage factors, and that a number of such as the poor viewing age time, conditions, may witness, increase the error rate. also He eyewitness testified that the confidence of an bears relationship accuracy no to the of an identification. light jury’s despite In of the decision to convict vigorous presented by defendant, defense we con- testimony that the exclusion of clude unimportance of relative would no have had effect jury’s on the verdict. strongly error of harmless conclusion Our presented

supported by re- did not that evidence example, of- For to identification. laté fered the stated testimony who three alibi witnesses at the time with them that he was by the robbery; however, was weakened the alibi investigators originally lied to he that admission concerning robbery. the time of at his whereabouts regarding testimony Similarly, his defendant’s presented suspect. that de- Evidence was car was virtually the car identical a car fendant owned eyewitnesses car. as the robber’s described Defendant driving stopped his that he admitted robbery. shortly that He claimed after the car car was showed problems. malfunctioning, trial evidence but had no mechanical car that defendant’s presented addition, In evidence hinge plate car on on defendant’s was up license the which filling plate lifted when to be allowed the plate gas would stick license tank. Defendant’s the in this plate position, just license as the robber’s robbery. during position in this was stuck Finally, jury to examine various was allowed physical pieces surveil- bank’s evidence—the photographs, of defendant lance array, appeared alleged clothing, he the state which defendant’s during robbery. wore support is sufficient evidence This untainted jury’s finding beyond doubt a reasonable of the identi- admission not affected verdict pros- Carolyn testimony Schultz. fication ecutor’s persuasive equally have been case would testimony. reason, For this this without with or any harmless. error was

V did the trial court conclusion, hold that we 318 289 Opinion by Boyle, J. denying to exclude in defendant’s motion

not err corporeal evidence of any error in the also hold that identifications. We Carolyn testimony Schultz was judg- beyond The a reasonable doubt. harmless Appeals is affirmed. ment of the Court of J., J. Mallett, with concurred dissenting (concurring part in J. Boyle, part part). I of Justice Griffin’s concur all but iv opinion. testimony man- of the of branch

The admission cogniza- ager of a Schultz does not rise to the level process. First, claim of denial of due ble coming minimally, has, forward on the burden indicating issue, and there is no record basis this impermissible police conduct. Commonwealth v (1991). Otsuki, 218, 233; 999 Mass NE2d the witness’ statement Defendant contends photographs. implies However, that she was shown merely stated, [the "I identified defen- the witness picture my dant] from the camera took.” Ante at 315. assuming

Second, even law enforcement picture officials showed Mrs. Schultz the that "her process only took,” due would offended camera be police something if the had done that "was so light totality of the circum it led stances to a substantial likelihood citing Big misidentification,” 302, ante at Neil v gers, 188, 196; 375; 93 S 34 L 2d 401 US Ct Ed (1972). police al Unlike situations where the are leged manipulated photographic display to have photo opportunity persuade or misidentify witness targeted subject, case, in the instant indicating "pressure there is no record basis on acquiesce” in the witness to the identification of Beicklby, Brathwaite, 432 US Manson v the defendant. 2243; 53 L Ed 2d 97 S Ct perpe photograph was of the actual surveillance possibility arises of misidentification "Little trator. photographs depicting 'the likeness the use of from suspect police possible files, in but not of some actually [person] committed the who of robbery.’ ” Stubblefield, 621 F2d v United States 1980). (CA by the 9, The identification appraisal the defen was based on her witness resemblance to the surveillance dant’s image perpetrator. Thus, the risk that of the true misidentify the defendant was Schultz would Mrs. compar jurors, greater than the risk no ing pho with the same surveillance the defendant misidentify tographs, defendant. would testi- Mrs. Schultz’ the foundation for While mony may it was not robber, deficient in that have been of the no on an actual observation based objection trial made in the lack-of-foundation unnecessary. Further review is court.

Riley, J., J. Boyle, concurred with dissenting (concurring part Brickley, agree opinion part). lead I with the While Appeals should be of the Court of the decision disagree- separately express my affirmed, I write opinion’s affirmance with the lead ment findings courts’ lower suggestive. recognized "[t]he scientifi- has both

This Court recognized judicially cally are fact that there reliability eye- limitations on serious .” . . . Peo- of defendants identification witnesses ple Anderson, 155, 172; 205 389 Mich Franklin Supreme The United States NW2d dangers recognized inherent has also Court Brickley, J. eyewitness In United evidence. identification 1926; 18 L 218, 228; 87 S Ct Wade, 388 US States (1967), majority noted: Ed 2d be- compelled by the State confrontation [T]he to a or witnesses and the victim tween the accused peculiarly evidence crime to elicit identification dangers and variable with innumerable riddled crucially, even dero- might seriously, factors which vagaries eyewitness trial. The gate from a fair well-known; crimi- the annals of are identification identi- instances of mistaken are rife with nal law fication. has noted: commentator One unreliability concerning the evidence Scientific continued has eyewitness of mount since understanding, popular trilogy. Contrary to the Wade do not eyes and memories our events are accu- camera on which operate like a time, any subject to retrieval rately recorded significant to a memory can be altered but fact perceived after the fact. information extent Also, transference,” known as "unconscious through process a briefly in one context person a seen time "recognized” in another may erroneously be Thus, may select some- place. a crime victim and one from a person seen that he or she has because photo lineup, rather previous in ... Despite such dan- the of the crime. than at gers, scene however, testimony to eyewitness juries find [Sobel, Eyewitness Identifica- persuasive. highly be tion, 1.1, pp 1-2 to § 1-3.] keep widely important ac- It to mind pro- knowledged dangers inherent making capable mis- are cedures. Witnesses yet may identifications, be certain that but taken they perpetrator correctly have selected possibility errors, of the of such crime. Because Brickley, agencies must care- and courts law enforcement creating guard against fully in which situations high led will be likelihood that witnesses there is a being perpetra- person identify as an innocent to tor of a crime. guard they Furthermore, must against danger that, identi- once a witness has person depicted in a as fied a likely they may perpetrator crime, be base of a suspect upon photo- later identifications of graph, of the their recollection rather than on crime. determining pretrial

In whether rights arrays the ac- violate the constitutional array cused, determine whether courts must irreparable mis- likelihood of creates a substantial States, 390 US v United identification. Simmons (1968); 377, 383; 967; 19 L Ed 2d Neil 88 S Ct Biggers, 375; 34 L Ed 196; 93 S Ct 409 US (1972), supra, p case, Anderson, 169. In this 2d 401 Mary Cindy were and Dortman tellers Kamendat containing photographic array presented with a pictures. men All showed six wearing hats, all shirts and baseball

short-sleeved potbellied. sunglasses In addi- all were and wore against positioned similar back- tion, all were roughly pictures cropped grounds all were and image However, of the defen- the same size. images appears larger of the other than the dant picture background subjects, slightly is a standing at a differ- He is different color. angle addition, three than the others. ent per- Finally, subjects had mustaches. other picture noteworthy, haps the defendant’s most clearly in "trucker’s wallet” that he has a reveals pocket a to his belt with that is attached his back photographs appears in the such wallet chain. No of the other subjects. among eyewitnesses general

The consensus Mich Opinion by Brickley, suspect feet tall with a was that the was about six wearing potbelly, shirt, a short-sleeved a baseball cap, sunglasses wallet on his belt. He chain having hair. In this was not described as photographic array, only description: facial subject

one met this Kurylczyk.1 Furthermore, defendant as opinion notes, worn the lead the chain wallet prominently in the surveil- the robber is visible robbery. Both Kamendat lance and having testified to seen the surveil- Dortman paper. Thus, in lance this feature reemphasized certainly, for them. Most was important chain wallet was an facet of the rob- appearance. Along with the other features ber’s distinguished photograph, that think I defendant’s only that the fact that he was the one obviously wearing was such a wallet makes this suggestive. array impermissibly I think there is no lineup suggestive, it doubt that this and that suggested to the that the witnesses defendant perpetrator. opinion

The lead states that in order to find that suggestive, unduly however, a court Biggers must determine whether the Neil v crite- p agree Ante, are 306. I ria these criteria indicate that satisfied. do not

there was no substan- Although tial likelihood misidentification.2 lighting good, robbery only in the bank was Appeals United States for The Court of the Second Circuit has that, valid, constitutionally array noted in order to be must not "[t]he only so be limited is the one to match the description perpetrator.” witness’s United States v Maldonado- 1990). 934, (CA Rivera, 922 F2d addition, question helpful actually I how some of these criteria determining Although are lead whether an identification is reliable. opinion support finds the fact that both witnesses testified that robber, they were certain that the defendant was the some studies have indicated that there is little correlation between the confidence express certainty accuracy that witnesses observations. See Zalman & eyewitness their and the of their Siegel, psychology perception, identification, lineup, and the 27 Crim L Bull 159 Opinion Bkickley, J. lásted three to four minutes. Neither of the two looking tellers were at the for robber the entire robbery. duration of Further, the evidence only showed that Dortman observed the robber for approximately addition, one minute.3 In another reliability factor undermines the of their identifi- opinion cation. notes, As the lead some of the employees person had identified another as the employees robber. of One these Kamendat, directly witness who was robber, confronted explanation and thus had the best view him. In thought event, of this she testified that she person part this other was the robber because wearing p he was a chain Ante, on his belt. 308. The fact that the best witness identified another person part robber, as the on the basis of the wearing fact that he was a chain wallet shows how important this feature was to the identification of suspect.

Although acknowledge I that it is rare for courts photographic arrays sugges- impermissibly to find examples tive, some are accord with the conclu- Thornley, sion I reach here. In Commonwealth v (1989), 96, 97, 99-100; Mass 546 NE2d 350 Supreme Judicial Court of Massachusetts found a photographic array suggestive. array photographs consisted men, of thirteen only wearing glasses. with the Both originally perpetrator witnesses had described the wearing glasses, they as and stated that chose the glasses. defendant because of his In State v Iron (SD, 1978), Thunder, NW2d 299 the victim addition, support some studies the conclusion that the fact that carrying gun likely the robber was makes it less the witnesses were focused on the robber’s face for the entire duration of the robbery. Experimental data has shown that in situations in which a visible, weapon subjects upon called to describe the facial fea tures of the carrier were much less able to do so than in situations Kramer, weapon focus, arousal, Weapon where a was hidden. See eyewitness memory, 14 Law & Human Behavior 167 Bbickley, big having belly. perpetrator as

described photographic array presented with a She was subjects, photographs of other five included showing defendant, one two only picture stomach, and another his bare chest and open collar. his face and shirt subjects Furthermore, had identifica- five other court found their necks. The tion boards around suggestive. p impermissibly Id., 301.4 that this (Fla App, State, So 2d 1115 Butler See also 1989) (a photographic array to have was found only impermissibly suggestive the because been clothing described wore the distinctive picture by witnesses, had a different back- the police required ground, of the wit- one the one); People v her two choices to nesses narrow (1976) (a Shea, NYS2d 477 54 AD2d imper- photographic array to have been was found picture missibly the defendant’s because in size than the was in color and was smaller picture appeared others, more the defendant’s only depicted once, was the one as than and he identifying possessing the of blond characteristic afro). acknowledge appears it these I that that cases distinguishable the because witnesses chose are each of question in on basis distinguished it from the that the characteristic although photographs. However, these two other they testify their did not based witnesses photograph defendant’s on the clearly impor- wore, an he it was chain wallet that appearance. part part It tant of his was a original description by Cindy Dortman. In addi- Mary tion, above, I Kamendat as noted when mistakenly identified the bank customer as indepen had an went on to find that the identification court Id., p 302. dent basis. . Opinion by Brickley, part robber, she testified that she did so because he, too, wore a chain wallet. suggestiveness

Given the of the array reliability and the lack of of the identifica- totality tions under circumstances, of the I photographic array would hold that this was im- permissibly suggestive. Thus, I believe that allowing trial court erred Kamendat and Dort- testify regarding man to their identification of the array. defendant’s Although I find this to be suggestive, I would not reach the issue whether exposure the lineup of Kamendat and Dortman to this subsequent

tainted their identifications. did, if it Even light I find the error to be harmless against defendant, other evidence including the identifications made witnesses Shirley Gladys agree Smith and Caris. I with the opinion corporeal lineup lead stitutionally impermissible, is not con- agree

and I exposure pho- of the witnesses to the surveillance tograph postarraignment photo- of the robber and graph of the defendant did not violate the defen- rights. Thus, dant’s constitutional I concur with opinion’s the lead result.

Cavanagh, C.J., Levin, J., concurred with Brickley,

Case Details

Case Name: People v. Kurylczyk

Court Name: Michigan Supreme Court

Date Published: Aug 20, 1993

Citation: 505 N.W.2d 528

Docket Number: 91867, (Calendar No. 2)

Court Abbreviation: Mich.