PEOPLE OF MI V BRANDON D CROSBY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 14, 2010
Plaintiff-Appellee,
v
No. 289376
Wayne Circuit Court
LC No. 08-006797
BRANDON D. CROSBY,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Hoekstra and Whitbeck, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of carjacking, MCL 750.529a,
and larceny from the person, MCL 750.357. We affirm.1
On appeal, defendant argues that Jarga Ward’s out-of-court identification of him was
tainted and improperly admitted. We disagree. We will not reverse a trial court’s decision to
admit identification evidence unless it is clearly erroneous. People v Kurylczyk, 443 Mich 289,
303; 505 NW2d 528 (1993). Clear error exists when the reviewing court is left with a definite
and firm conviction that a mistake was made. Id.
“The fairness of the identification procedure must be evaluated in the light of the totality
of the circumstances.” People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974). The test is
whether the procedure was so impermissibly suggestive as to have led to a substantial likelihood
of misidentification. Kurylczyk, supra at 302. Factors to consider include 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.”
Id. at 306 (citation omitted).
1
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
-1-
Here, the identification procedure defendant complains of occurred when Ward, Theresa
McCaa, and Tiffany McNelly, the victims, went to the police station about 90 minutes after the
incident to identify the perpetuators. All three began looking through photo books of possible
suspects. Each of them was seated at a table with their own stack of books to view. Ward was
not able to identify anyone in her photo books and after she finished looking through her books,
she went over to McCaa and they looked in a book together. They both saw a photograph of
defendant. Ward testified at trial that “[w]e both identified him.” We fail to see how this
identification procedure was unduly suggestive.
Further, even assuming that McCaa showed Ward the photograph of defendant, which is
unsupported by the record, we would still conclude that the identification procedure was not
impermissibly suggestive given the totality of the circumstances. Ward’s trial testimony
indicated that she had ample opportunity to observe defendant during the incident, which lasted
five to seven minutes. During this time, Ward observed a group of men approach their vehicle in
a Dodge Durango. Both McNelly and Ward testified that defendant was the only person in the
Durango not wearing a face covering. The men threatened the victims with guns, at which point
Ward and the others ran from the vehicle. Although Ward was fleeing the car and calling 911
from her cell-phone during the incident, she testified that she watched defendant walk from the
Durango to the victims’ vehicle, get into the driver’s seat, and drive away. About 90 minutes
after the incident, Ward identified defendant in the photo book. Moreover, McNelly also
identified defendant in the courtroom as the person who took the car. Given the foregoing,
admission of Ward’s identification was not clearly erroneous.
Lastly, because counsel is not required to advocate for a meritless position, defendant has
failed to show that defense counsel was ineffective for failing to move to suppress Ward’s
identification. See People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
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