PEOPLE OF MI V LADARIUS KESHOUE GILBERT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellee,
v
No. 277879
Macomb Circuit Court
LC No. 2006-002154-FC
LADARIUS KESHOUE GILBERT,
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Kelly, JJ.
O’CONNELL, J. (concurring).
I concur with the majority opinion. I write separately to address Hillary Juracek’s lineup
identification of the defendant. Because I conclude that Juracek’s lineup identification of the
defendant contained sufficient indicia of reliability, I would affirm the trial court’s decision
admitting her identification of the defendant.
To establish that an identification procedure denied him due process, a defendant must
show that the pretrial identification procedure was so suggestive under the totality of the
circumstances that it led to a substantial likelihood of misidentification. People v Harris, 261
Mich App 44, 51; 680 NW2d 17 (2004).
When examining the totality of the circumstances, relevant factors
include: the opportunity for the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of a prior description, the
witness’ level of certainty at the pretrial identification procedure, and the length
of time between the crime and the confrontation. [People v Colon, 233 Mich App
295, 304-305; 591 NW2d 692 (1998).]
Because Juracek testified that she saw defendant at the district court in a jail uniform on April
20, 2006, defendant claims that this pre-identification encounter was unduly suggestive, thereby
tainting any subsequent identification of the defendant. I disagree. I note that Juracek also
testified that she only saw him for a few seconds and that he was with three or four other people
at the time. She also testified that she based her line-up identification on his eyes and eyebrow
area and her memory of the event on April 10, 2006. During the robbery, the man she identified
as defendant spoke to her, but she was unable to understand him and so she bent closer and “got
a better look.” Although there was nothing distinctive about the eyes and eyebrows, she
indicated that she “just remembered it.” It is reasonable for people to recognize certain features
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of other individuals without being able to articulate any specific distinctive quality to those
features.
Additionally, at the lineup, it was Juracek who requested that the individuals cover their
faces as the perpetrators of the crime had done, and only after that time did she identify
defendant. The lineup occurred on May 16, which is just slightly over a month after the incident.
Given that our Supreme Court has indicated that 26 days is a “relatively short period between the
[event] and the identification,” such that “the crime was still fresh in the victim’s mind,” People
v Gray, 457 Mich 107, 120; 577 NW2d 92 (1998), the 36 days in the present case should not
weigh against finding an independent basis. “Under the totality of the circumstances, defendant
has failed to show that there was a substantial likelihood of misidentification.” Colon, supra at
305. I conclude that the witness identification was not based on any suggestiveness surrounding
the pre-identification encounter, but had a sufficiently independent basis so that the lineup was
not tainted.
I would find no error in the admission of the witness’ identification testimony.
/s/ Peter D. O’Connell
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