PEOPLE OF MI V MICHAEL EDWARD LEE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2004
Plaintiff-Appellee,
v
No. 243080
Oakland Circuit Court
LC No. 2001-181089-FH
MICHAEL EDWARD LEE,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction, following a jury trial, of larceny over
$1,000 but less than $20,000, in violation of MCL 750.356(3)(a). The trial court sentenced
defendant to 2 to 15 years in prison. We affirm.
This case arises out of the theft of a computer from a United Parcel Service (UPS)
loading dock in Clawson on September 4, 2001. The only eyewitness to the event, Terry Harris,
a UPS clerk, testified that he saw defendant take a package with a Dell logo on it, put it in his
vehicle, and then take off. Harris later identified defendant at a photographic lineup, an
unintentional meeting at the jail where defendant was present for a parole revocation hearing, at
the preliminary examination hearing, and at trial.
Defendant’s sole argument on appeal is that the trial court clearly erred in denying a
motion to suppress the eyewitness identification because the photographic lineup, identification
in the hallway at the parole revocation hearing, and identification at the preliminary examination
were unduly suggestive, and there was no independent basis for Terry Harris’ in-court
identification of defendant. Further, defendant argues that because the identification procedures
were unnecessarily suggestive and conducive to irreparable misidentification, he was denied the
due process right to a fair trial.
We review de novo the trial court’s ultimate decision with regard to a motion to suppress
evidence. People v Parker, 230 Mich App 337, 339; 584 NW2d 336 (1998). However, we
review the trial court’s findings of fact in deciding the motion for clear error. Id. A finding of
fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a
definite and firm conviction that a mistake has been made. Id.
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The Michigan Supreme Court has held that a defendant is generally not entitled to
counsel at a precustodial photographic lineup. People v Kurylczyk, 443 Mich 289, 302; 505
NW2d 528 (1993). “A defendant is entitled to ‘counsel at a precustodial investigatory lineup’
only when the ‘circumstances underlying the investigation and the lineup are “unusual.”’”
People v Lee, 243 Mich App 163, 182; 622 NW2d 71 (2000), quoting People v McKenzie, 205
Mich App 466, 472; 517 NW2d 791 (1994). Because there were no unusual circumstances in the
instant case, i.e., defendant was not in custody and had not been contacted or questioned before
the lineup, the trial court properly determined that defendant did not have the right to counsel at
the precustodial photographic lineup.
Defendant argues that the photographic array shown to Harris was unduly suggestive, and
violated his Fourteenth Amendment right to due process. US Const, Am XIV; Const 1963, art 1,
§ 17; Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). The Supreme Court
has ruled that “in order to sustain a due process challenge, a defendant must show that the
pretrial identification procedure was so suggestive in light of the totality of the circumstances
that it led to a substantial likelihood of misidentification.” Kurylczyk, supra at 302-303. “If the
trial court finds that the pretrial procedure was impermissibly suggestive, testimony concerning
that identification is inadmissible at trial. However, in-court identification by the same witness
still may be allowed if an independent basis for in-court identification can be established that is
untainted by the suggestive pretrial procedure.” Id. at 303.
“Defendant [] argues that the pretrial photographic array used to identify him was
impermissibly suggestive because various characteristics of his photograph caused him to be
singled out from the other men.” Kurylczyk, supra at 303. The Supreme Court has noted that
“generally, the photo spread is not suggestive as long as it contains some photographs that are
fairly representative of the defendant’s physical features and thus sufficient to reasonably test the
identification.” Kurylczyk, supra at 304. This Court has commented that “physical differences
among the lineup participants do not necessarily render the procedure defective and are
significant only to the extent that they are apparent to the witness and substantially distinguish
the defendant from the other lineup participants.” People v Hornsby, 251 Mich App 462, 466;
650 NW2d 700 (2002). Additionally, “physical differences generally relate only to the weight of
an identification and not to its admissibility.” Id.
It is evident from examining the photographic lineup that defendant’s photograph was
distinct. As defendant properly states, defendant is the only man in the photographic array with
his eyes closed, and his photograph is the only one with a blue background. However, “a
suggestive lineup is not necessarily a constitutionally defective one. Rather, a suggestive lineup
is improper only if under the totality of the circumstances there is a substantial likelihood of
misidentification.” Kurylczyk, supra at 306. “The relevant inquiry, therefore, is not whether the
lineup photograph was suggestive, but whether it was unduly suggestive in light of all of the
circumstances surrounding the identification.” Id.
“When examining the totality of the circumstances, courts look at a variety of factors to
determine the likelihood of misidentification.” Kurylczyk, supra at 306. As noted in Kurylczyk,
some of the relevant factors to be examined were outlined in Neil v Biggers, 409 US 188, 199200; 93 S Ct 375; 34 L Ed 2d 401 (1972):
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As indicated by our cases, the factors to be considered in evaluating the
likelihood of misidentification 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.
In the instant case, Harris testified that his attention was focused on defendant during the
incident, which lasted approximately five minutes, and that he had a clear view of defendant for
one or two minutes. Following the incident, Harris described defendant to the police as a black
male, approximately 6’2”, and wearing blue jeans. Within one week of the incident, Harris
selected defendant’s picture within 30 to 45 seconds of viewing the photographic lineup, and was
seventy-five percent certain that the person he selected was the person who had stolen the
computer. Harris explained that he was only seventy-five percent sure that the person he
selected was correct because the picture was not up to date; the person who had stolen the
computer had gray hair, and the photograph in the lineup was not recent.
The trial court found that Harris had “an opportunity to view the defendant at the time of
the alleged [cr]ime because he engaged in a conversation with him during daylight hours. The
photographic line up occurred within one week after the incident.” Further, the court noted that
while Harris said he was seventy-five percent positive of his identification of defendant, he also
stated that he was “very positive that defendant was a man he encountered on the day of the
incident.” The trial court also found that “defendant’s argument that the line up was unduly
suggestive because of the color of the background and the photograph used is unpersuasive.”
Despite any possible suggestiveness in defendant’s lineup photograph, defendant has not
demonstrated that the trial court erred in denying his motion to suppress Harris’ identification.
“Nothing in the record supports a conclusion that there was a substantial likelihood of
misidentification at the photographic array as a result of any suggestive influences.” Kurylczyk,
supra at 310. Harris testified that there was no indication that defendant was in the photographic
lineup and that the police did not point out a specific picture to him. Further, “no testimony was
elicited from [Harris] indicating that [he] chose defendant’s photograph because of the
suggestive features of his photograph.” Kurylczyk, supra at 310. The record reveals that Harris
was initially seventy-five percent certain that defendant’s lineup photograph was the person who
had stolen the computer (because of the age of the photograph), and that when Harris saw
defendant in the hallway at the parole revocation hearing and at the preliminary examination, he
was one hundred percent certain of his identification and had no “doubt about whether or not this
[] man was the person [he] saw take that package from UPS.” The trial court’s determination
that the photographic lineup was not impermissibly suggestive was not clearly erroneous,
because after a review of the record, we are not left with a definite and firm conviction that a
mistake has been made. Thus, Harris’ identification testimony concerning the photographic
lineup was properly admitted into evidence at trial. Because the photographic lineup was not
impermissibly suggestive, it did not taint Harris’ subsequent in-court identification of defendant,
and there is no need to establish an independent basis for Harris’ in-court identification of
defendant. People v Laidlaw, 169 Mich App 84, 92-93; 425 NW2d 738 (1988).
Defendant next argues that Harris’ identification of defendant in the hallway before the
parole revocation hearing was improperly suggestive and violated defendant’s right to counsel.
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It is well settled that an accused is entitled to counsel at “any stage of the prosecution, formal or
informal, in court or out, where counsel’s absence might derogate from the accused’s right to a
fair trial.” People v Williams, 244 Mich App 533, 541; 624 NW2d 575 (2001). “However, in
Moore v Illinois, 434 US 220, 226-227, 231; 98 S Ct 458; 54 L Ed 2d 424 (1977), the [United
States Supreme] Court clarified that the right to counsel at identification procedures only
attached once adversarial proceedings were initiated.” Williams, supra at 541.
The record reveals that adversarial proceedings against defendant in the instant case had
not been initiated at the time of defendant’s parole revocation hearing on October 25, 2001.
Defendant was not charged in the instant case until October 30, 2001. Therefore, defendant was
not entitled to counsel at the parole revocation hearing. Moreover, even if the parole revocation
hearing occurred after the instant case had been initiated, it was not an identification procedure to
which the right to counsel attaches. Rather, Harris inadvertently saw defendant in the hallway
before the parole revocation hearing, and identified him without prompting.
In People v Hampton, 52 Mich App 71, 76-77; 216 NW2d 441 (1974), rev’d on other
grounds 394 Mich 437; 231 NW2d 654 (1975), two witnesses were standing in the hallway with
the assistant prosecutor before trial, and saw the defendant walk toward the courtroom. One
witness spontaneously identified the defendant to the prosecutor, and the other witness did not
identify the defendant at that time, nor was she able to identify the defendant in court. Id. at 77.
This Court held that “the witnesses’ viewing was mere happenstance,” and that “the inadvertent
pretrial confrontation” did not fall within Wade’s ambit of “police-induced, arranged
confrontations.” Id.; see United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149
(1967), Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), and Stovall,
supra at 293.
In People v Metcalf, 65 Mich App 37, 41, 50; 236 NW2d 573 (1975), a witness saw and
identified the defendant, without prompting, at the courthouse where she was signing the
complaint, and the defendant was in the magistrate’s office being arraigned on other charges.
This Court found the spontaneous identification similar to the identification in Hampton, supra at
76-77, commented that “the Hampton Court held that such happenstance confrontations do not
bring into play the Wade-Gilbert-Stovall line of cases,” and held that the trial court properly
denied the defendant’s motion to quash the witness’ later in-court identification on that basis.
Metcalf, supra at 50.
Similarly, in the instant case, Harris’ identification of defendant in the hallway before the
parole revocation hearing was precisely the type of inadvertent happenstance occurrence that
does not bring into play the protections afforded to defendants in police-induced, arranged
confrontations. Metcalf, supra at 50; Hampton, supra at 77. Harris testified that he did not go to
the jail to identify defendant, was not looking for defendant, and just happened to be in the
hallway when other people were looking for him. Harris’ identification of defendant in the
hallway before the parole revocation hearing was not suggestive, and therefore did not taint
Harris’ subsequent in-court identification of defendant.
Defendant next argues that Harris’ identification of defendant at the preliminary
examination was improperly suggestive and tainted Harris’ subsequent in-court identification.
However, this Court has held that there is no per se rule that courtroom identifications, whether
at preliminary examinations or at trial, are inherently suggestive. People v Fuqua, 146 Mich
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App 133, 142-143; 379 NW2d 396 (1985). This Court has held that the totality of the
circumstances must be reviewed to determine whether an identification at a preliminary
examination was suggestive. People v McElhaney, 215 Mich App 269, 287; 545 NW2d 18
(1996).
Harris positively identified defendant at the preliminary examination, approximately two
months after the incident. Harris testified that he had previously identified defendant at the
photographic lineup, and admitted that while he was seventy-five percent certain that defendant
was the person who had stolen the computer at the time of the photographic lineup, because of
the age of the photograph, he now had no doubt that defendant was the person who had stolen
the computer. Harris had a clear view of defendant during the incident, and identified him at the
preliminary examination two months after the incident. Under the totality of the circumstances,
defendant’s right to due process was not violated by Harris’ identification of him at the
preliminary examination. McElhaney, supra at 287.
“Because there was no impropriety in [Harris’] pretrial identifications of defendant [at the
photographic lineup, in the hallway before the parole revocation hearing, and at the preliminary
examination], there was no need to establish an independent basis for an identification.”
McElhaney, supra at 288. Accordingly, the trial court did not clearly err in its determination that
the pretrial identification procedures were not impermissibly suggestive, and properly denied
defendant’s motion to suppress Harris’ identification on that basis.
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Hilda R. Gage
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