PEOPLE OF MI V LOUIS HAWKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 7, 1998
Plaintiff-Appellee,
v
No. 203705
Recorder’s Court
LC No. 96-005246
LOUIS HAWKINS,
Defendant-Appellant.
Before: Griffin, P.J., and Gribbs and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial conviction for armed robbery, MCL 750.529;
MSA 28.797. Defendant was sentenced to seven to fifteen years’ imprisonment as a fourth habitual
offender, MCL 769.12; MSA 28.1084. His seven to fifteen-year sentence for the armed robbery
conviction was vacated. We affirm.
Defendant’s first issue on appeal is that the prosecution failed to present sufficient evidence to
support his conviction. Specifically, defendant argues that there was insufficient identification evidence
presented at trial which could lead the trier of fact to conclude that he was the perpetrator. Defendant
maintains that the complainant’s identification of defendant was unreliable. We disagree.
The elements of armed robbery are: (1) an assault; (2) a felonious taking of property from the
person or in the presence of the victim; and (3) the defendant was armed with a dangerous weapon or
an article which was used in such a way as to lead a reasonable person to believe that it was a
dangerous weapon. People v Jolly, 442 Mich 458, 465; 502 NW2d 177 (1993); People v Johnson,
206 Mich App 122, 123-124; 520 NW2d 672 (1994).
To determine whether a witness’ identification is reliable, a court must assess the witness’
opportunity to observe the perpetrator at the time of the crime. Factors such as the length of
observation, the distance between the witness and the perpetrator, and the lighting at the scene of the
crime determine the witness’ ability to perceive the perpetrator. People v Storch, 176 Mich App 414,
417, n 1; 440 NW2d 14 (1989). Because of the fear of mistaken identification, courts will scrutinize a
witness’ reliability by looking to the length of time between the crime and the identification, the witness’
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certainty in making the identification, and circumstances surrounding the crime itself, such as the witness’
state of mind. People v Anderson, 389 Mich 155, 173; 205 NW2d 461 (1973); Storch, supra at
417.
The complainant in this case was robbed by two strangers in front of her home. One of the men
appeared to have a weapon and demanded that the complainant hand over her personal belongings.
She testified that the man with the weapon was close enough for her to reach out and touch. Even
though it was becoming dark outside, the complainant testified that her porch lights were on as well as
the lights on the street. She was confident of the one man’s physical traits because he was the closest to
her during the crime and she was most threatened by him.
The complainant was not given the opportunity to identify defendant as the robber until one day,
eight months later, she happened to be in a hospital waiting room and defendant walked in. Again, the
complainant had ample opportunity to study defendant and determine that he was the man who robbed
her. The mere lapse of time does not necessarily taint the complainant’s identification where courts have
held that even an eighteen-month delay in identification following a crime does not invalidate eyewitness
identification. People v Kurylczyk, 443 Mich 289, 307-308; 505 NW2d 528 (1993) (opinion by
Griffin, J.). The complainant was also asked to view a lineup and, once again, identified defendant as
the robber. The facts, taken in a light most favorable to the prosecution, could lead a trier of fact to
reasonably conclude that defendant was guilty of armed robbery. Jolly, supra at 466.
Defendant’s second argument on appeal is that the court erred in denying defendant’s motion to
suppress a pretrial identification. Specifically, defendant argues that the lineup in which the complainant
chose defendant as the perpetrator was unduly suggestive because he was the only participant wearing
jail clothes, and his age was far in excess of the other participants. We disagree.
Unnecessarily suggestive pretrial identification procedures giving rise to a substantial likelihood
of irreparable misidentification constitute a denial of due process of law. Stovall v Denno, 388 US
293, 302; 87 S Ct 1967; 18 L Ed 2d 1199 (1967); Kurylczyk, supra at 311-312. Whether an
identification procedure constituted a denial of due process is determined by the totality of the
circumstances surrounding the pretrial identification. Kurylczyk, supra at 306. For there to be a denial
of due process in a lineup, differences among the defendant and the lineup’s other participants must act
to substantially distinguish the defendant from the other participants and there must be a substantial
likelihood that the witness identified the defendant, not upon recognition of the defendant, but upon the
differences among the defendant and the other participants in the lineup. Id. at 312; People v Holmes,
132 Mich App 730, 746; 349 NW2d 230 (1984). If the trial court finds that a pretrial procedure was
unduly suggestive, any testimony regarding that identification at trial is inadmissible. Kurylczyk, supra at
303.
To determine whether a lineup has likely led to the misidentification of a defendant, the courts
look to a variety of factors including: (1) the opportunity of the witness to view the perpetrator at the
time of the crime; (2) the degree of attention the witness pays to the perpetrator; (3) the accuracy of the
witness’ prior description of the perpetrator; (4) the witness’ level of certainty at the confrontation; and
(4) the length of time between the crime and the confrontation. Kurylczyk, supra at 306.
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Here, the complainant based her identification of defendant on a positive recognition of his face
which she had ample opportunity to observe during the robbery. Defendant’s claim that the
complainant’s attention was drawn to the fact that he was wearing jail clothes is not supported by
complainant’s testimony. In fact, the complainant indicated that she did not even notice that defendant
was in jail clothes or was wearing a wristband issued by the jail. Defendant claims that he was the only
one over the age of twenty-nine at the lineup, but the lineup sheet indicates there was a forty-two-year
old individual as well. In its findings of fact and conclusions of law, the trial court reviewed a
photograph of the lineup and determined that defendant did not stand out from the rest of the
participants. Physical differences between defendant and other members of a lineup do not go to the
admissibility of the lineup, but merely to the weight of the identification. People v Sawyer, 222 Mich
App 1, 3; 564 NW2d 62 (1997). Physical differences among the lineup participants are only significant
to the extent that they are apparent to the witness. Kurylczyk, supra at 312. The lineup was not
impermissibly suggestive.
Even assuming arguendo that the lineup was unduly suggestive, a witness may still testify as to a
defendant’s identity so long as the witness has a sufficient independent basis, apart from the tainted
procedure, to identify the defendant. People v Kacher, 400 Mich 78, 92-93; 252 NW2d 807 (1977).
This independent knowledge must have existed before the suggestive lineup was conducted. Kacher,
supra at 92. The prosecution then has the burden of showing by clear and convincing evidence that the
in-court identification has a sufficient independent basis to “purge the taint caused by the illegal
confrontation.” Id. at 97. Some factors bearing upon the basis of a witness’ in-court identification to
prove that the in-court identification is not the product of a defective pretrial identification are: (1) the
witness’ prior knowledge of the defendant; (2) the witness’ opportunity to observe the crime; (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 as the culprit; (7)
the mental state of the witness at the time of the crime; and (8) special features of the defendant. Id. at
95-96.
The complainant’s identification was based on independent knowledge. The circumstances of
the crime itself were conducive to an accurate identification on the part of the complainant. The incident
occurred near nightfall, but the area was lit by street lamps and the complainant’s porch lights. The
complainant testified that she focused on defendant’s features because he was the greatest threat to her
safety. She was close enough to touch the robber. While it is not clear how long the entire robbery
lasted, there had to have been enough time for the robber to demand the complainant’s purse, necklace,
watch, and keys and wait for his compliance. The complainant had sufficient opportunity to study the
perpetrator. Kurylczyk, supra at 306.
In addition, we note that in this case, the complainant identified defendant eight months later
while at the hospital. Again, this identification was valid in that the complainant was close enough to
observe defendant’s face and the lighting in the hospital was bright. The lineup was conducted only
after the complainant identified defendant in the hospital and after defendant’s arraignment. Clearly, the
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complainant’s identification of defendant at the time of the crime as well as at the hospital establish an
independent basis for her in-court identification of defendant. Kacher, supra at 92.
Affirmed.
/s/ Richard Allen Griffin
/s/ Roman S. Gribbs
/s/ Michael J. Talbot
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