PEOPLE OF MI V ROBERT ROBINETTE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 22, 2002
Plaintiff-Appellee,
v
No. 227298
Oakland Circuit Court
LC No. 99-167159-FH
ROBERT ROBINETTE,
Defendant-Appellant.
Before: Smolenski, P.J., and Doctoroff and Owens, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction of unarmed robbery, MCL 750.530,
entered after a jury trial. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant was charged with unarmed robbery in connection with the theft of a bag of
bread and cake from eight-year-old Jackee Connally. At the preliminary examination, Jackee
identified defendant as the perpetrator. Defendant moved to suppress the identification on the
ground that it was tainted by an unduly suggestive identification procedure. At a hearing, Jackee
testified that at 8:30 a.m. on June 15, 1999 she was returning home with a bag of bread and cake
when a man approached her from behind, grabbed the bag, and knocked her to the ground. She
saw the man’s face, and recognized him as someone she had seen in the neighborhood on two or
three occasions. Officer Murray testified that Jackee described her assailant as a thin white male
with blond hair, blue eyes, a beard, missing teeth, and glasses. Jackee told Murray that she
thought that the man lived in a nearby mobile home community. Murray knocked on the door of
defendant’s home, but received no response. Murray took Jackee and her father to the
community later in the day, and Jackee identified defendant as the perpetrator.
The trial court denied defendant’s motion to suppress the identification, concluding that
while the identification of defendant at his home was unduly suggestive, an independent basis
existed for Jackee’s in-court identification. The trial noted that Jackee gave an accurate
description of defendant based on her observation of him at the time of the incident, and was
certain of her identification. At trial Jackee identified defendant as the perpetrator. The jury
found defendant guilty of unarmed robbery.
An identification procedure can be so suggestive and conducive to irreparable
misidentification that it denies a defendant due process of law. To establish that an identification
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procedure resulted in the denial of due process, a defendant must show that the procedure was so
suggestive under the totality of the circumstances that it led to a substantial likelihood of
misidentification. People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001). If a
witness is exposed to an impermissibly suggestive pretrial identification procedure, his in-court
identification of the defendant will not be allowed unless the prosecutor establishes by clear and
convincing evidence that the in-court identification has an untainted, independent basis. People
v Gray, 457 Mich 107, 115; 577 NW2d 92 (1998). To determine if the in-court identification has
a sufficiently independent basis, the trial court must hold a hearing and consider the totality of
the circumstances. Appropriate factors for consideration include: (1) the witness’s prior
knowledge of the defendant; (2) the witness’s opportunity to observe the perpetrator during the
incident; (3) the length of time between the crime and the disputed identification; (4)
discrepancies between the pretrial identification description and the defendant’s actual
appearance; (5) any prior proper identification of the defendant or failure to identify the
defendant; (6) any prior identification of another person as the perpetrator; (7) the mental state of
the witness at the time of the crime; and (8) any special features of the defendant. Id. at 115-116.
The determination whether an in-court identification has an independent basis is factual, and the
trial court’s findings of fact are reviewed for clear error. Id. at 115. Erroneously admitted
identification testimony warrants reversal only when the error is not harmless beyond a
reasonable doubt. People v Winans, 187 Mich App 294, 299; 466 NW2d 731 (1991).
Defendant argues that the trial court clearly erred in finding that Jackee’s in-court
identification had an independent basis. We disagree and affirm defendant’s conviction. Jackee
testified that she had seen defendant in the neighborhood on previous occasions. The incident
did happen quickly. However, Jackee had the opportunity to look directly at the perpetrator’s
face. The length of time between the crime and the disputed identification was only six hours.
Jackee was certain about her identification of defendant. Defendant concedes that Jackee’s
description of his physical characteristics matched his actual appearance. The only discrepancy
was that Jackee’s description of the clothes worn by the perpetrator did not match those worn by
defendant when the identification was made. Any such discrepancy goes to the weight and not
to the admissibility of the identification evidence. People v Davis, 241 Mich App 697, 705; 617
NW2d 381 (2000). Jackee made no prior identification of defendant, did not fail to identify
defendant, and did not identify any other person as the perpetrator. Although she stated that the
incident made her angry, she was able to talk to the police and give an accurate description of
defendant, including the observation that defendant had several missing teeth. She provided an
accurate description prior to seeing defendant at his home. We conclude that the trial court did
not clearly err by finding that under the totality of the circumstances, Jackee’s in-court
identification of defendant had a sufficiently independent basis. Gray, supra at 115-116.
Affirmed.
/s/ Michael R. Smolenski
/s/ Martin M. Doctoroff
/s/ Donald S. Owens
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